MCC Energy Pty Ltd v Wyong Shire Council
[2006] NSWLEC 581
•20/09/2006
Reported Decision: (2006) 149 LGERA 59
Land and Environment Court
of New South Wales
CITATION: MCC Energy Pty Limited v Wyong Shire Council & Ors [2006] NSWLEC 581 PARTIES: APPLICANT
MCC Energy Pty LimitedFIRST RESPONDENT
Wyong Shire CouncilSECOND RESPONDENT
THIRD RESPONDENT
Scott James Ford
Lorraine Gayle FordFILE NUMBER(S): 40083 of 2006 CORAM: Jagot J KEY ISSUES: Judicial Review :- Development consent - whether manifestly unreasonable - absence or inadequacy of statement of environmental effects - no requirement for expert assistance to assess view impacts and other matters - relevant considerations - breaches of development control plan LEGISLATION CITED: Development Control Plan No. 70 – Notification of Development Proposals
Development Control Plan No. 99 – Building Lines
Development Control Plan No. 100 – Quality Housing
Environmental Planning and Assessment Act 1979 s 78A, s 79C, s 80(1)
Environmental Planning and Assessment Regulation 2000 cl 50, cl 51, cl 54, cl 246, cl 247, cl 255
Wyong Local Environmental Plan 1991CASES CITED: Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223;
Attorney-General for the State of New South Wales v Quin (1990) 170 CLR 1;
Calleja v Botany Bay City Council (2005) 142 LGERA 104;
Country Energy v Williams (2005) 141 LGERA 426;
Cranky Rock Road Action Group Inc v Cowra Shire Council and Others (2005) 143 LGERA 356;
Guthega Development Pty Ltd v Minister Administering the National Parks and Wildlife Act (NSW) 1974 (1986) 7 NSWLR 353;
Hill v Woollahra Municipal Council and Others (2003) 127 LGERA 7;
Hortis v Manly Council and Another (1999) 104 LGERA 43;
Jungar Holdings Pty Ltd v Eurobodalla Shire Council and Dublee Holdings Pty Ltd (1989) 70 LGRA 79;
Kindimindi Investments Pty Ltd v Lane Cove Council and Another (2006) 143 LGERA 277;
Manly Council v Hortis and Another (2001) 113 LGERA 321;
MCC Energy Pty Ltd v Wyong Shire Council and Others (2004) 132 LGERA 267;
Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others (1986) 162 CLR 24;
Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Others (1996) 185 CLR 259;
Minister for Immigration and Multicultural Affairs v Singh (2002) 209 CLR 533;
Minister for Local Government and Another v South Sydney City Council (2002) 55 NSWLR 381;
North Sydney Council v Ligon 302 Pty Ltd [No 2] (1996) 93 LGERA 23;
Parramatta City Council and Another v Hale and Others (1982) 47 LGRA 319;
Project Blue Sky Inc and Others v Australian Broadcasting Authority (1998) 194 CLR 355;
Pyramid Pacific Pty Limited v Ku-ring-gai Council [2006] NSWLEC 522;
R v Hillingdon London Borough Council; ex parte Puhlhofer [1986] AC 484;
Save Our Street Incorporated v Settree [2006] NSWLEC 570;
Schroders Australia Property Management Ltd v Shoalhaven City Council and Another (1999) 110 LGERA 130;
Schroders Australia Property Management Ltd v Shoalhaven City Council and Anor [2001] NSWCA 74;
Segal and Another v Waverley Council (2005) 64 NSWLR 177;
Somerville v Dalby and Others (1990) 69 LGRA 422;
Telstra Corporation Ltd and Another v Hurstville City Council and Others (2002) 118 FCR 198;
Tenacity Consulting v Warringah Council [2004] NSWLEC 140;
The Council of the City of Parramatta v Pestell (1972) 128 CLR 305;
Weal v Bathurst City Council and Another (2000) 111 LGERA 181;
Wyong Shire Council v MCC Energy Pty Ltd (2005) 139 LGERA 296;
Zhang v Canterbury City Council (2001) 51 NSWLR 589DATES OF HEARING: 15/08/2006, 16/08/2006
DATE OF JUDGMENT:
09/20/2006LEGAL REPRESENTATIVES: APPLICANT
Mr K Muir (in person)
SOLICITORS
N/AFIRST RESPONDENT
Mr P Tomasetti
SOLICITORS
Abbott ToutSECOND RESPONDENT
THIRD RESPONDENT
Submitting appearance
SOLICITORS
Aubrey Brown Partners
Submitting appearance
SOLICITORS
Aubrey Brown Partners
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESJagot J
20 September 2006
40083 of 2006
MCC ENERGY PTY LIMITED
ApplicantWYONG SHIRE COUNCIL
First RespondentSCOTT JAMES FORD
Second RespondentJUDGMENTLORRAINE GAYLE FORD
Third Respondent
Jagot J:
A. Background
1 The applicant claims that a development consent granted by the Council on 2 February 2006 in response to development application 1370/02 authorising “dwelling additions” to an existing house at 26 Elizabeth Drive, Noraville, is void and of no effect.
2 The additions to the house at 26 Elizabeth Drive have been the subject of previous proceedings in this Court and the Court of Appeal. In MCC Energy Pty Ltd v Wyong Shire Council and Others (2004) 132 LGERA 267, Cowdroy J declared invalid a development consent granted by the Council on 16 September 2002 to the same development application, and ordered that the third story extension constructed pursuant to that consent be removed. In Wyong Shire Council v MCC Energy Pty Ltd (2005) 139 LGERA 296, the Court of Appeal ordered that the appeal from the decision of CowdroyJ be allowed in part, and that the demolition order be stayed to enable the determination of the development application in accordance with law. One consequence of the Court of Appeal’s decision was that development application 1370/02 remained undetermined. The Council’s General Manager subsequently determined the development application by the grant of consent on 2 February 2006. The 2 February 2006 consent is now itself subject to challenge in these proceedings.
3 At [20] to [47] of the Court of Appeal’s reasons, Tobias JA (with whom Sheller and Hodgson JJA agreed) set out the relevant background to the making, assessment and first determination of development application 1370/02. I adopt the factual summary in [20] to [47] of the Court of Appeal’s judgment in these reasons. As explained by Tobias JA, the background to development application 1370/02 included the lodgement, assessment and withdrawal of the predecessor development application 609/02. Development application 609/02 also formed part of the factual foundation relied on by the applicant in the present proceedings.
4 I turn now to the events that occurred after the Court of Appeal delivered its decision. There is no material dispute between the parties with respect to these events.
5 On 18 May 2005, the owners of 26 Elizabeth Drive wrote to the Council requesting that development application 1370/02 “be placed before the Councillors at their next weekly meeting with a recommendation that the application be approved in its present form”. The Council responded on 6 June 2005 to the effect that, on legal advice, the Council had commenced its re-assessment of the development application and had re-notified the application in accordance with its notification policy.
6 By letter dated 22 June 2005, the Council notified residents that they could make submissions about the proposed development within the notification period, which expired on 8 July 2005.
7 The Council received various objections to the development by way of individual letter and petition. One such letter was on behalf of the applicant in these proceedings, the owner of the property at 29 Budgewoi Road, Noraville. Mr Muir wrote that letter. Mr Muir is a director of the applicant, and represented the applicant in these proceedings. As part of the letter of objection, Mr Muir referred to a visual assessment report prepared by Mr Wright, a copy of which was annexed to the letter. Mr Wright’s report contained a visual assessment of the development application, focusing on the impacts of the proposed development on other properties in the vicinity – 27 Budgewoi Road, 29 Budgewoi Road (the property owned by the applicant), 31 Budgewoi Road and 33 Budgewoi Road.
8 By letters dated 8 July 2005 and thereafter, the Council informed those who had made a submission, including Mr Muir for the applicant, that their comments would be considered as part of the assessment of the application.
9 On 27 July 2005, the Council wrote to Mr Ford, one of the owners of 26 Elizabeth Drive, advising that a preliminary assessment of the development application had “revealed that the application is deficient in supporting information”. The letter said that further information must be submitted before a comprehensive assessment of the proposed development could be carried out and the application referred to the Council for determination. Information so identified by the Council included a statement of environmental effects as required by the Environmental Planning and Assessment Regulation 2000 (“the Regulation”), a site analysis plan, amended cross sections with accurate relative levels (based on surveyed Australian Height Datum), a scaled plan of all existing building works as required by the Regulation, and a visual analysis prepared by a suitably qualified expert addressing loss of view from any affected properties including but not necessarily limited to 27-33 Budgewoi Road as required under s 79C(1)(b) of the Environmental Planning and Assessment Act 1979 (“the EPA Act”). The Council advised Mr Ford that he had 21 days within which to respond and that the application would be held in abeyance pending submission of that information.
10 On 4 August 2005, Mr Wilson, an officer of the Council, forwarded an email to Mr Tim Shelley of Johnson Partners, a consulting firm, headed “Brief for independent assessment of DA 1370/2002”. In that email, after setting out a short history of the development application, Mr Wilson informed Mr Shelley that the Council required:
A complete assessment of the additions against current DCPs and planning legislation.
An assessment of view loss from surrounding properties to determine the level of impact and where it is acceptable or not.
A report to Council on the findings of the assessment and summary of/responses to objections.A review of objections.
11 On 11 August 2005, Johnson Partners forwarded a letter to the Council in response to its invitation. That letter identified that the Council’s requirement was a “complete assessment of the application pursuant to S 79C of the Environmental Planning and Assessment Act 1979 to enable is [sic] determination by full Council”. The letter identified the information required for the purpose of the assessment. On page 3, the letter stated that the person responsible for undertaking the assessment on behalf of Johnson Partners would be Mr Tim Shelley. The letter continued:
It is understood that Council is aware that Tim may have had some involvement in the review of a separate application related to the current proposal in his capacity as a member of Council’s Development Assessment Panel, but is satisfied that no conflict of interest exists. Confirmation of this fact would be appreciated in any return correspondence.Tim is a qualified town planner, holding a Bachelor of Urban Regional Planning from the University of New England. It is considered that Tim has the ability to undertake and complete the assessment efficiently and cost effectively for Council, given his knowledge of Council’s requirements and processes gained during his 12 years of employment with Council, most recently as the team leader of the Major Applications Group.
12 On 22 August 2005, Mr Martin Johnson, the Manager Development Services at the Council, informed Mr Wilson that he agreed to the Johnson Partners’ fee proposal, and requested that a letter of offer be prepared. The letter of offer is not in evidence. Mr Shelley was engaged by the Council and prepared the assessment report that was considered by the Council at a meeting on 23 January 2006.
13 On 22 August 2005, officers of the Council attended a meeting with the owners of 26 Elizabeth Drive and their solicitor. The record of that meeting discloses that the representatives of the owners considered that the Council had already assessed the development application and that to address those issues again “would be against the outcome of the appeal”. The record of the meeting concludes with a statement under the heading “Action arising”, that the Council should seek further legal advice “on exactly the process to be followed from this point and whether or not a full reassessment is required”.
14 On 6 September 2005, the Council informed Mr Ford by letter that it had received legal advice confirming that “reassessment of the application, including all merits-based issues, must be undertaken and a comprehensive assessment report prepared for consideration by full Council”. The letter requested that Mr Ford provide the additional information the Council had previously sought, and a response within 7 days as to whether or not that additional information would be provided. The letter continued:
If this information is to be submitted, Council will provide a timeframe within which this is to be provided. If Council is advised that the information is not going to be submitted, assessment of the application will be carried out based on the information currently available.
15 The enclosed letter from Abbott Tout, solicitors, to the Council’s General Manager bears the date 31 March 2006. That date, however, is the date on which the copy was printed. The actual date of the letter is 29 August 2005, as disclosed in the footer to the copy. Abbott Tout’s letter of advice to the Council observed that: - (i) the Court of Appeal did not traverse the merits of the development application, (ii) as the owners had advised the Council that they would not lodge further information, the Council had no choice but to assess the application on the basis of the information and material already supplied, (iii) because the Council’s previous determination had been “entirely done away with”, the Council was not redetermining the development application at law but, rather, determining the application afresh, (iv) as such, “an assessment report would be prepared, which would carefully examine the relevant merits of the Development Application”, (v) “… all merit issues involved in the application need to be placed squarely before” the full Council, (vi) the question whether or not the information submitted was adequate to enable a decision to be made about the development application would “… to some degree, depend upon the person preparing the report for full Council’s consideration. It is for that person or persons to make a recommendation to the full Council.” As such, Abbott Tout said “we leave it to the assessing officer’s qualifications and experience to determine whether sufficient information has been supplied on which to make a recommendation to the full Council”.
16 On 4 November 2005, the Council confirmed to the owners of 26 Elizabeth Drive that the owners had advised the Council that the additional information would not be provided. As a result, the Council had engaged an independent assessor to undertake a comprehensive assessment of the proposal based on the information currently available. The independent assessor was Mr Shelley.
17 Between 5 and 13 December 2005, various emails were exchanged between Council officers and Mr Shelley. On 16 December 2005, Mr Shelley forwarded to the Council a CD “containing the independent assessment of DA 1370/02, complete with attachments 2, 3 and 4 (photographs and schedule of submissions)”.
18 On 16 January 2006, the Council forwarded letters to those people who had made a submission with respect to the development application advising that the matter would be considered by the Council at its meeting on 23 January 2006, and requesting that any person who wished to address the meeting follow certain advice. The letter also advised that the business papers would be available on the Council’s website on the Thursday prior to the meeting.
19 A report to the Ordinary Meeting of the Council of 23 January 2006 recorded that, due to the Council’s previous involvement in Court proceedings, the attached report had been prepared by an independent assessor to ensure an open and transparent processing of the development application. The attachments included Mr Shelley’s report of 20 pages, plans of the proposed development, photographs from 27 – 33 Budgewoi Road showing likely impact on views, photographs of nearby dwellings in Elizabeth Drive and a schedule of submissions.
20 The introduction to the assessment report observed that:
The roof and framework of the proposed first floor additions to the dwelling have been completed by the owners in accordance with the consent originally issued by Council to this application. However, as this consent was later deemed to be invalid by the NSW Land and Environment Court (as discussed below), work was stopped on the proposed development. In accordance with the subsequent decision of the NSW Court of Appeal, no further work will take place until such time as the current application is determined.
21 The report noted that the site had a “complex history over recent years”, and included a summary of that history. The summary, amongst other things, contained the following statements:
· 29 March 2005 – Court of Appeal finds that consent was invalid on the grounds of delegation. The Court of Appeal considered that on merit, Council’s consideration and assessment of the application was reasonable. The Court stays order of demolition for three months to enable determination of the application.
……· August 2005 – Council seeks expression of interest from independent third parties to complete assessment of application.
22 Under the heading “Statutory requirements”, the report identified that the proposed development was a “dwelling house”, permissible with consent in the 2(b) zone, and which was considered to be consistent with zone objective (a) – “to cater for a wide range of housing types essentially domestic in scale and character and generally not exceeding a height of two storeys”. The report observed that: - (i) the proposed development was domestic in scale and character, (ii) as held in the Court of Appeal, part of the dwelling exceeded two storeys, (iii) however, it was considered that the proposed development was compatible with, and actually smaller in terms of height, bulk and scale, than a number of other dwellings and flat buildings in the immediate vicinity, which included substantial four and three storey components as indicated on photographs in attachment 3 to the report, (iv) the extent of the upper floor additions were considered to be minor, (v) given the topography of the property and its location, the proposed development was considered to represent an appropriate response to the constraints imposed by the slope of the land and the existing dwelling erected upon it, and (vi) accordingly, the proposed development was consistent with objective (a) of the 2(b) zone.
23 In the section headed “Council policy and strategic implications”, the report addressed Development Control Plan No. 99 – Building Lines and Development Control Plan No. 100 – Quality Housing. The report noted that DCP 100 became effective on 1 January 2003 and did not apply when the development application was lodged but, nevertheless, was required to be considered by the Council. The report noted that an assessment of the development application in accordance with DCP 100 was “difficult” as the plans and documents prepared for the development application “predated the DCP and therefore could not have had any regard for the much more extensive information requirements and assessment criteria contained” in that DCP. The report noted that the Council had considered the information sufficient in March 2002 to notify and assess the development application. With respect to this matter, the report concluded, “sufficient information has been submitted that, in combination with an inspection of the subject site and view analysis undertaken from adjoining properties, allows a full assessment of the proposal to be undertaken”.
24 The report stated that the proposed development was considered to be consistent with the general thrust of DCP 100, which aimed to provide high quality, attractive, and energy efficient housing within Wyong Shire. The report then set out, in dot point form, the reasons in support of this conclusion.
25 With respect to height, the report included the following statement:
· Height – the proposed additions comprised three storeys in part, which is considered in this instance due to the slope of the land and the small extent proposed, as allowed for under s 3.6 of the DCP. Despite not being applicable to a third storey, the maximum height to the pitch of the additional storey of approximately 9.6 metres is less than the maximum pitch height of 11 metres specified for two storey dwellings;
26 With respect to privacy, the report said:
· Privacy and overshadowing – windows have been carefully placed to minimise overlooking, particularly from the additional floor, which is set back considerably from the edge of the floor below to further reduce this impact. In addition, louvres are proposed to be installed on a number of south facing windows on the upper level.
27 The report contained other sections headed “Variations to policies”, “Ecologically sustainable principles” and “Relevant issues”. In the latter section, the report stated that, having regard to s 79C of the EPA Act, certain matters required further consideration, which were addressed under the headings “Utilities”, “Erosion and sediment control”, “Stormwater”, “Natural hazards”, “Context and setting/view loss”, “Cumulative impacts”, “Privacy” and “Public interest”.
28 The section dealing with “Context and setting/view loss” comprised some 4 pages assessing the impact of the proposed development on views. The report observed that this had been a major issue during the assessment and was “both highly contentious and subjective”, with the “level of view loss and the impact that such loss is deemed to have varying widely depending on the specific view currently obtained from each property”. The report stated, “As such, it is crucial that an assessment of the likely impact be undertaken, although it is acknowledged that such an assessment is difficult due to the factors described above (particularly the subjective nature of such an assessment)”.
29 The report referred to the Council’s earlier view loss assessment, but noted that as the external shell (that is, the framework and roof) of the proposed upper floor additions had now been completed, they provided a “much more tangible understanding of the likely impact of the proposed development on the properties to the rear”. In consequence, Mr Shelley had carried out an inspection on 9 and 10 December 2005, and had taken photographs from the rear decks of 27 – 33 Budgewoi Road showing the views available from those properties following construction of the upper floor additions. Those photos were provided in attachment 2 to the report.
30 The report then assessed the view loss from 27, 29, 31 and 33 Budgewoi Road having regard to the guidelines identified in Tenacity Consulting v Warringah Council [2004] NSWLEC 140. In accordance with those guidelines, the report identified and assessed the affected views, considered the parts of the properties from which those views were obtained, assessed the extent of the impact on those views, and the reasonableness of the proposal causing the impact. Without repeating the details of that assessment, the report characterised the view loss from 27 Budgewoi Road as “minor/moderate”, from 29 Budgewoi Road as “minor”, from 31 Budgewoi Road as “moderate/severe” and from 33 Budgewoi Road as “negligible”. In respect of that issue, the report concluded that:
Therefore, despite the fact that no. 31 Budgewoi Road is affected to a significant degree it is considered that – on an overall basis - the design of the proposed development has had adequate regard to minimising the impact of view loss from the majority of adjoining and nearby properties. To this end, the impact on no. 31 is difficult to address due to the size and orientation of the deck and its considerable setback from the rear boundary and potential view corridors.
31 Under the heading “Privacy”, the report said that the proposed development was considered to have minimal impact on the privacy of adjoining properties due to the fact that the additions comprised of bedroom, en-suite and study only, which were generally recognised as being occupied on an infrequent basis and predominantly outside of daylight hours.
32 Under the heading “Public interest”, the report stated that the application had been notified in accordance with the requirements of Development Control Plan No. 70 – Notification of Development Proposals, and that various letters of objection had been lodged. The report summarised the objections in dot point form and attached a schedule of issues raised in submissions in attachment 4, as well as an assessment of those issues.
33 The report contained a “Conclusion” section which said that the additions proposed were consistent with the theme, scale and height of many other developments in the surrounding area and allowed the appearance and quality of the dwelling to be considerably improved, along with the Elizabeth Drive streetscape in general. The report recommended that the application be approved.
34 The minutes of the Council’s meeting of 23 January 2006 record that Mr Muir addressed the meeting between 7.55pm and 8.00pm. The Council resolved as follows:
(2) That those who made submissions be advised of the decision.(1) That the application be referred to the General Manager for determination having regard to the matters for consideration detailed in Section 79C of the Environmental Planning and Assessment Act and other relevant issues with an indication that based on the information available to it, Council favours approval of the application subject to appropriate conditions.
35 On 2 February 2006, the Council issued a notice of determination of development application 1370/02 granting consent to the development application, subject to conditions.
36 On 6 February 2006, the applicant commenced these proceedings.
B. Applicant’s claims
37 The applicant contended that the development consent granted on 2 February 2006 was invalid on various grounds, which I summarise below.
(1) The development application was not accompanied by information prescribed by the Regulation and/or DCP 100. The inadequate information gave rise to breaches of the Regulation and DCP 100, and otherwise did not enable the Council to “properly determine the application”.
(2) The Council’s processing of the application was “illegal”, because the Council had “knowingly failed to impartially impose an application fee in accordance with” the Regulation.
(3) The objectors had been denied natural justice because the Council had “failed to consult with the objectors concerning the selection of the independent assessor and refused permission for the independent assessor to discuss the assessment report with an objector”. The “independent assessor” is a reference to Mr Shelley, who prepared the report considered by the Council at its meeting on 23 January 2006. The “objector” is a reference to Mr Muir.
(4) The Council “illegally determined the application” because the Council “knowingly or otherwise chose a consultant to assess the application who was not independent”. Again, this is a reference to Mr Shelley.
(5) The Council “illegally determined the application” because the Council “knowingly or otherwise chose a consultant who lacked the necessary expertise to properly assess the application”. From the applicant’s submissions, it was apparent that the applicant’s claim was that Mr Shelley lacked the necessary expertise to carry out an assessment of the view impacts of the proposed development and a NatHERS assessment as referred to in DCP 100.
(6) The Council had granted the development consent in breach of s 79C(1)(c) of the EPA Act, because the Council had failed to consider the suitability of the site for the development. In particular, the applicant alleged that the Council had considered this issue with respect to development application 609/02 and “judged the site unsuitable for that development”, and that this consideration “established the suitability of the site for the development” as a relevant issue. The modifications to the development proposed in development application 1370/02, when compared to development application 609/02, did not address the unsuitability of the development for the site, and Mr Shelley’s assessment report did not contain any “heading or content” addressing this issue.
(7) In granting consent to a three storey building in the 2(b) zone that resulted in material impacts on neighbouring properties, the Council had breached the objectives of the Wyong Local Environmental Plan 1991 (“the LEP”) for that zone, or otherwise, “illegally exercised its discretion” regarding those objectives.
(8) In granting consent to a three storey building, the Council breached the provisions of DCP 100 and “so illegally determined the application”. In particular, the applicant said that: - (a) DCP 100, cl 3.3 page 12, prescribed the acceptable form of houses for development on sites such as the subject site, and the proposed development was “not of this form”, and (b) the provisions of DCP 100 relating to height, in section 3.6 at page 22, prescribed a ceiling height limit which applied to the proposed development.
(10) The Council’s decision to grant consent to the development application was manifestly unreasonable by reason of both the allegedly flawed process adopted by the Council and the allegedly flawed result in granting development consent to the proposed development, given “the considerable privacy loss of no. 33 Budgewoi Road, the very material view loss of four surrounding properties, the minor benefit to be gained by the development applicant from the view loss suffered by these properties and the many objections”.(9) The report to the Council’s meeting of 23 January 2006 contained “cardinal errors and misrepresentations, failed to consider relevant issues, considered irrelevant issues and came to conclusions devoid of any reason”. Accordingly, the applicant submitted that the Council’s “blind acceptance of this flawed work” was manifestly unreasonable and that, if the Council had been properly informed or directed, it would not have approved the application. The applicant provided two marked up versions of the assessment report. The first identified each of these alleged cardinal errors, misrepresentations, failures of consideration and manifestly unreasonable conclusions. The second, in effect, rewrote the report to reflect the text that, in the applicant’s opinion, ought to have been presented to the Council.
38 As will be apparent from the above summary, the applicant did not challenge the consent on any ground relating to the terms of the Council’s resolution on 23 January 2006 or the authority of the General Manager to determine the development application.
C. Other evidence
39 Mr Muir is a director of the applicant, and was authorised to represent the applicant in these proceedings. Mr Muir gave evidence about his dealings with Mr Shelley, his objections and attendance at the Council’s meeting of 23 January 2006.
40 The owner of 27 Budgewoi Road, Ms Kerry Lane, gave evidence about Mr Shelley’s attendance at her home to take photographs of the additions to 26 Elizabeth Drive and her objections to the proposed development.
41 Mr Johnson, the Council’s Development Assessment Manager, gave evidence about the appointment of Mr Shelley and the Council’s meeting on 23 January 2006. At the applicant’s request, Mr Johnson measured two points on photograph A to Mr Shelley’s report (the view from 27 Budgewoi Road) as 5.1cm from wall to wall of the additions and 4.2cm unobscured by those additions. Mr Johnson was also asked to calculate the distance from the existing ground surface to the ceiling of the upper most storey of the additions at its worst point, which he assessed as about 8m. The height reduced to about 7m approximately half way through the highest portion of the building.
D. Consideration of claims
General observations
42 Given the nature and extent of the applicant’s claims, it is appropriate that I make some general observations about the function of the Court in proceedings such as the present. As Brennan J observed in Attorney-General for the State of New South Wales v Quin (1990) 170 CLR 1 at 35-36, the Court’s role in these proceedings is to declare and enforce the law “which determines the limits and governs the exercise of the” Council’s power. The Court has no jurisdiction “simply to cure administrative injustice or error”. Although the Wednesbury unreasonableness ground of judicial review (Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223) “may appear to open the gate to judicial review of the merits of a decision or action taken within power”, that review ground, properly applied, also “leaves the merits of a decision or action unaffected unless the decision or action is such as to amount to an abuse of power”.
43 Courts have repeatedly emphasised that the distinction between judicial and merits review must be maintained. The need to maintain this distinction has been variously expressed.
44 With respect to the relevant considerations review ground, it has been said, “epithets such as ‘proper, genuine and realistic’ consideration … risk an assessment of the nature of the consideration which will encourage a slide into impermissible merit review”. An applicant challenging the grant of development consent on that ground must “identify some matter specified in s 79C, or otherwise necessarily implied from the scheme of the legislation, as a mandatory consideration, and then … demonstrate that it had not been taken into account” (Kindimindi Investments Pty Ltd v Lane Cove Council and Another (2006) 143 LGERA 277 at [79] – [80] per Basten JA, with whom Handley JA and Hunt AJA agreed). Moreover, not every failure of consideration will warrant the setting aside of the decision, as a relevant matter “might be so insignificant that the failure to take it into account could not have materially affected the decision” (Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others (1986) 162 CLR 24 at 40 per Mason J). Further, the weight to be given to relevant considerations is a matter for the decision maker alone (Peko-Wallsend at 40).
45 In determining whether an administrative decision has been affected by material error of law, it has been said that documents evidencing reasons should not be scrutinised “with an eye keenly attuned to the perception of error”. Hence, it is an error “to adopt a narrow approach, combing through the words of the decision maker with a fine appellate tooth comb, against the prospect that a verbal slip will be found warranting the inference of an error of law”. Such an approach risks converting judicial review into a reconsideration of the merits of the decision (Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Others (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ and at 291 per Kirby J).
46 In the context of s 79C of the EPA Act, the obligation of consideration is to “address the substance of the question, not the fact that the question is posed by a particular statute or instrument. Explicit reference to the statute or instrument will help confirm that the body did address the right question, but absence of such reference does not of itself indicate that it did not” (Hill v Woollahra Municipal Council and Others (2003) 127 LGERA 7 at [53] per Hodgson JA, with whom Ipp JA and Davies AJA agreed). Of course, the administrative decision-maker must identify the question, in order to discharge its consideration obligation (Zhang v Canterbury City Council (2001) 51 NSWLR 589 at [70] – [77] and North Sydney Council v Ligon 302 Pty Ltd [No 2] (1996) 93 LGERA 23).
47 The applicant for relief bears the onus of establishing error on administrative law grounds (Minister for Local Government and Another v South Sydney City Council (2002) 55 NSWLR 381 at [164] per Mason P). “Proof of a state of mind whether of a person or collegiate body may be a matter of difficulty, but the person, who seeks under s.123 to bring down a decision, must discharge that onus however difficult that may be and he must do so in accordance with proper legal requirements and by inference not suspicion…. A conclusion by a court finding a breach of s.90 by way of inference is one to be come to only after anxious consideration, but when the inference is available and ought to be drawn, the court should, in service of the policy which underlies the Act, not hesitate to give effect to the inference it has drawn.” (Parramatta City Council and Another v Hale and Others (1982) 47 LGRA 319 at 345 per Moffitt P).
48 The Wednesbury unreasonableness ground of review is extremely confined. The impugned decision “must amount to an abuse of power … or be so devoid of plausible justification that no reasonable person could have taken that course” (Wyong Shire Council v MCC Energy Pty Ltd (2005) 139 LGERA 296 at [79]). “Where the existence or non-existence of a fact is left to the judgment 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 that 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”. (R v Hillingdon London Borough Council; ex parte Puhlhofer [1986] AC 484 at 518E, cited in Minister for Immigration and Multicultural Affairs v Singh (2002) 209 CLR 533 at [132] to [133] and in Bruce v Cole (1998) 49 NSWLR 163 at 188). Moreover, it must be recognised that there is a “world of difference between justifiable opinion and sound opinion”. Whether an opinion is sound or not “is not a question for decision by a court” (The Council of the City of Parramatta v Pestell (1972) 128 CLR 305 at 323). See also Biscoe J’s survey of judicial admonitions about the very confined nature of review on this ground in Save Our Street Incorporated v Settree [2006] NSWLEC 570 at [27] to [31]).
49 These principles need to be kept in mind when dealing with the applicant’s claims of errors and omissions of fact in Mr Shelley’s report to the Council. It must also be kept in mind that the decision subject to judicial review is the decision to grant the development consent on 2 February 2006 – a decision that I infer the Council’s General Manager made pursuant to the Council’s resolution of 23 January 2006. The applicant’s challenges to the substance of the Council’s decision assumed that the General’s Manager’s consideration was co-extensive with, and limited to, the content of Mr Shelley’s report. As the observations of Sundberg and Finkelstein JJ in Telstra Corporation Ltd and Another v Hurstville City Council and Others (2002) 118 FCR 198 at [50] disclose, where it is apparent that the decision-maker has adopted a recommendation contained in a report without more, then an inference may properly be drawn that the report reflects the decision-maker’s reasons. In this case, however, the Council’s resolution of 23 January 2006 specifically directed the General Manager to have regard to the considerations in s 79C of the EPA Act and other relevant issues at large, and not confined to Mr Shelley’s report. Given the nature of the proposed development (additions to a dwelling house, where the structural framework of the contentious third storey addition had in fact been erected), it also may be inferred that the Councillors and the General Manager had available general and local knowledge capable of being applied to the assessment of development application 1370/02 (see, for example, Somerville v Dalby and Others (1990) 69 LGRA 422 at 429).
50 In the particular circumstances of this matter, the applicant has not established facts from which I would infer that the consideration by the Council or General Manger was co-extensive with, and limited to, the content of Mr Shelley’s report. This conclusion alone is sufficient to dispose of many of the applicant’s claims based on alleged errors and omissions in the text of Mr Shelley’s report, because while I am satisfied that Mr Shelley’s report would have been available to, and considered by, the General Manager, the applicant has not established that the General Manager adopted Mr Shelley’s report as his own. My subsequent findings about the applicant’s claims based on the alleged errors in Mr Shelley’s report must be understood in the context of this general conclusion, which I do not repeat for each such claim.
51 Leaving aside this general conclusion, the limits on judicial review must also be kept in mind when dealing with many of the applicant’s arguments about alleged errors and omissions in the text of Mr Shelley’s report. These arguments were founded on a scrutiny of Mr Shelley’s report with an eye keenly attuned to the perception of error, and a willingness to speculate about improper motives on the part of Mr Shelley and the Council absent any supporting evidence. Other aspects of the applicant’s arguments also travelled far beyond any recognised ground of judicial review. For example, in its written submissions, the applicant sought to demonstrate at some length that Tobias JA had made errors of fact in assessing the plans of the development. The purpose of Tobias JA’s factual assessment at [81] to [94] of his reasons, however, was to demonstrate that the trial Judge’s conclusion of Wednesbury unreasonableness could not stand. As His Honour said, nothing in his reasons addressed the merits of the development application (at [104]). His Honour’s factual assessment did not alter the confined scope of judicial review on the Wednesbury unreasonableness ground, as apparent from the observations he made at [79]. Hence, challenge to the validity of the 2 February 2006 development consent cannot be advanced by evidence or arguments which, properly characterised, amounted to an invitation to conduct a review not so much of the Council’s decision, but of the Court of Appeal’s factual findings. For the same reasons, all of the applicant’s submissions to the effect that Senior Commissioner Roseth would have reached a different conclusion about the impacts of the subject development are beside the point.
52 Similarly, the applicant’s reliance on the Council’s assessment report with respect to development application 609/02 was founded on an assumption that that assessment somehow fixed the range of impacts which could reasonably be considered as acceptable or unacceptable, and the suitability of the site for an addition involving a third storey component. It is one thing to accept that it is highly desirable for a consent authority to strive for consistency in its assessment and decision-making processes (see, for example, the observations in Segal and Another v Waverley Council (2005) 64 NSWLR 177 at [16], [49] – [56] and [95] – [96]). It is another altogether to conclude that an assessment made at one time with respect to one application fixes the range of development on a site to which consent may lawfully be granted.
53 Applying labels such as “irrational”, “perverse”, “absurd”, ‘illogical”, “devoid of reason” and “cardinal error” to matters about which minds may reasonably differ, does not maintain the critical distinction between merits and judicial review. Assessment of considerations that operate at the level of generality apparent in s 79C(1)(b) to (e) of the EPA Act necessarily leave to a consent authority a wide range of potential findings, many of which applicants for and objectors to development may consider in error in important respects. The capacity for strong disagreement based on sincerely held views about the level of impact caused by a development is not of itself a reliable indicator of a decision that is Wednesbury unreasonable. It is an indicator of an assessment process, such as contained in the EPA Act, which encourages participation by people with different, and potentially conflicting, interests in the outcomes of development.
54 I turn now to the applicant’s claims. As noted, some claims were based on matters of substance, and others on matters of process. My conclusions about the former class must be read in the context of my general conclusions above.
DA accompanied by inadequate information
55 The applicant claimed that an adequate statement of environmental effects, a ground floor plan and a contour plan showing the relative levels of the land had not accompanied the development application, as required by the Regulation and DCP 100.
56 Section 78A(1) of the EPA Act provides that a person may, subject to the regulations, apply to a consent authority for consent to carry out development. Clause 50 of the Regulation provides that a development application must contain the information and be accompanied by the documents specified in Pt 1 of Sch 1. Under cl 51(1)(b), a consent authority may reject a development application within 7 days after receiving it if the application does not contain any information or is not accompanied by any document specified in Pt 1 of Sch 1. Under cl 54, a consent authority may request an applicant to provide additional information about the proposed development. Clause 54(5) specifies that, instead of providing this information, an applicant may notify the consent authority in writing that the information will not be provided.
57 Part 1 of Sch 1 to the Regulation specifies the information to be included in a development application and the documents to accompany a development application. Clause 2(1)(c) of Pt 1 of Sch 1 specifies the need for a statement of environmental effects. Clause 2(4) provides that such a statement of environmental effects is to “indicate” certain matters. Clause 2(1)(j) specifies the need for a “scaled plan of the existing building”, if the development involves building work to alter, expand or rebuild an existing building. Clause 2(1)(a) refers to the need for a site plan of the land. Clause 2(2) provides that the site plan must “indicate” a number of matters. Clause 2(1)(b) requires a “sketch of the development”. Clause 2(3) provides that this sketch must “indicate” a number of matters.
58 Development application 1370/02 was not accompanied by a statement of environmental effects which identified itself as the statement for that specific application. Instead, the Council had available to it a statement of environmental effects dated 13 March 2002, which was lodged by the owners to accompany development application 609/02.
59 The applicant appeared to accept that this document had been available to the Council in its consideration of development application 1370/02, but submitted that it was a “pathetic document comprised mainly of general statements, inadequate particulars or description of the development or the activities proposed, and made inadequate or no assessment of impact” (citing Jungar Holdings Pty Ltd v Eurobodalla Shire Council and Dublee Holdings Pty Ltd (1989) 70 LGRA 79 at 89). Jungar Holdings was a third party merit appeal in respect of designated development under s 98 of the EPA Act. In that context, Hemmings J made his criticisms of the applicant’s environmental impact statement (not statement of environmental effects). At 86, Hemmings J observed that an environmental impact statement “is merely a tool to enable the consent authority to assess and determine the application” (citing Guthega Development Pty Ltd v Minister Administering the National Parks and Wildlife Act (NSW) 1974 (1986) 7 NSWLR 353).
60 The statement of environmental effects did not specifically address any environmental impacts associated with development application 1370/02. The document indicated (to adopt the language of cl 2(4) of Sch 1) the environmental impacts in a conclusion about absence of any impacts, without providing any information on issues which, as later events demonstrated, were perceived by others to be critical (namely, the impact on views). Do these circumstances constitute a breach of the EPA Act or Regulation? If so, what is the consequence, if any, of breach?
61 The proposed development in development applications 609/02 and 1370/02 involved additions to the existing dwelling house, including by way of third storey extension. The required content of a statement of environmental effects provided for by cl 2(4) of Sch 1 operates at a high level of generality. Such a document is required only to “indicate” the specified matters. The specified matters are basically “environmental impacts”, “expected harm to the environment” and steps to protect the environment from that harm. The Regulation leaves it to the author of the statement of environmental effects to identify for themselves whether there are any such “environmental impacts” or “expected harm”. The Regulation does not require the author of a statement of environmental effects to have any qualifications. Given the nature of the development (uncomplicated alterations and additions to a dwelling) and the statutory scheme for the content of statements of environmental effects (general and flexible rather than specific and prescriptive), I am satisfied that the statement of environmental effects available to the Council was sufficient to discharge the statutory obligation.
62 If I had reached a contrary conclusion of breach of the statutory obligation then it would have been necessary to ask whether it was “a purpose of the legislation that an Act done in breach of the provision should be invalid” (Project Blue Sky Inc and Others v Australian Broadcasting Authority (1998) 194 CLR 355 at [92] – [93]). In Cranky Rock Road Action Group Inc v Cowra Shire Council and Others (2005) 143 LGERA 356 at [50] to [102] Bignold J held that such a breach could not be classified as one giving rise to invalidity.
63 Numerous aspects of the statutory scheme support this conclusion. All development under Pt 4 of the EPA Act except for designated development is subject to the requirement that a statement of environmental effects be lodged. Development expected to have the potential for significant environmental impacts has been separated into the designated development category, and is subject to a more onerous assessment scheme of regulation. The non-designated development class covers a vast range from the small and simple to the large and complicated. The different treatment of the two classes (designated and not designated) is clear. The terms of s 78A (“A person may, subject to the regulations…”) indicate a permissive regime. The requirement for a statement of environmental effects is contained in the Regulation (s 78A of the EPA Act and cl 50(1)(a) of the Regulation, with Pt 1 of Sch 1). Contrast these provisions with the requirements for an environmental impact statement and species impact statement contained in the EPA Act that are expressed in mandatory terms – “a development application must…” (s 78A(8)). The public notification requirements for designated development are also contained in the EPA Act (s 79). The public notification requirements for non-designated development are left to the Regulation, environmental planning instruments and development control plans (s 79A). The Regulation only provides for notification of advertised development (Div 7 of Pt 6). Hence, as in this case, the notification requirement arose from the terms of a development control plan.
64 The Regulation contains detailed provisions for the preparation of environmental impact statements by persons holding professional qualifications. These persons are required to certify both that the statement contains all available information that is relevant to the environmental assessment of the development to which the statement relates, and that the information contained in the statement is neither false nor misleading. An environmental impact statement may only be prepared after the applicant for consent has consulted with the Director-General about the form and content of the statement (Div 4 of Pt 6). There are no equivalent obligations with respect to a statement of environmental effects. Indeed, any person may prepare a statement of environmental effects. The required content of a statement of environmental effects is merely to “indicate” certain matters (cl 2(4) of Pt 1 to Sch 1). Those matters are expressed at a high level of generality. The identification of any impacts is a matter for the author of the document.
65 Once it is recognised that any person can prepare a statement of environmental effects, and that the identification of environmental impacts and steps to protect against expected harm are within the discretion of the author, the relatively limited role of a statement of environmental effects in the statutory scheme is apparent. The capacity for consent authorities to request further information (cl 54) and the inescapable obligations of consideration imposed on consent authorities in s 79C(1) support this conclusion.
66 The above matters disclose that a statement of environmental effects cannot and does not play an equivalent role to an environmental impact statement in the statutory scheme. A document that may be prepared by any person, with such flexibility in terms of content, cannot be characterised as essential to the public participation and assessment requirements and objects of the EPA Act. Moreover, there is obviously room for debate about what is and is not a statement of environmental effects, depending on the nature of the development in question. Invalidating consents as of course because of the absence of a statement of environmental effects, in this context, could not be seen as promoting the objects of the EPA Act. Serious public inconvenience would result if all consents for development, no matter how insignificant, were invalid because the application lacked a statement of environmental effects, and notwithstanding a thorough consideration by the consent authority of all relevant matters under s 79C.
67 Nothing I have said should be understood as suggesting that the obligation to provide a statement of environmental effects has been set at naught. The obligation remains. Applicants who fail to comply with the obligation run numerous risks. The consent authority may reject the development application outright in reliance on cl 51 of the Regulation. The consent authority may require further information and “stop the clock” delaying the accrual of appeal rights under cl 54. The consent authority may exercise its discretion to refuse to grant development consent having regard to s 79C(1) because of inadequate information. Invalidity of the consent, however, cannot be seen as a purpose of the legislation by reason of the absence of a statement of environmental effects.
68 The same conclusions apply to the other alleged deficiencies relied on by the applicant. With respect to the absence of a ground floor plan or contour plan showing the relative levels of the ground, the only alteration to the lowest level of the existing dwelling was the new panel lift doors as indicated on the east elevation. The proposed development was shown on the site plan, the sections, the lower floor level, the upper floor level and the elevations. The floor to ceiling heights on the elevations included dimensions, and the standard note that the dimensions should be read in preference to the scale. In these circumstances, I am satisfied that the absence of a ground floor plan or contour plan showing the relative levels of the ground did not constitute a breach of the EPA Act or Regulation, and such breach could not lead to invalidity of the consent in any event (see again Project Blue Sky, referred to above).
69 DCP 100 was adopted by a Council resolution of 28 August 2002, and became effective from 1 January 2003. Section 2 of the DCP headed “Applications” sets out the Council’s requirements for the lodgement of development applications, many of which reflect the Regulation. Development application 1370/02 was lodged on 31 May 2002, prior to the coming into force of DCP 100. In circumstances where the development application had been lodged prior to the DCP coming into force, there was no obligation to comply with the requirements about lodgement of development applications specified in the DCP, and there could not be any breach of those requirements. Those requirements, in terms, operated on lodgement of the application.
70 The applicant’s other claims in this context about the “lack of diligence that pervaded” the assessment of the development application, said to be evidenced by various flaws, errors and inadequacies in the plans, are incapable of constituting any recognised ground of judicial review. The applicant’s criticism of the Council allowing Mr Shelley, in effect, to “fill the gaps” also cannot found any proper judicial review ground.
Inadequate application fee
71 Clause 246(1) of the Regulation provides that the maximum fee for development involving the erection of a building having an estimated cost within the range specified in the table to the clause is to be calculated in accordance with that table. Under cl 247, a maximum fee of $364 is payable for development involving the erection of a dwelling house with an estimated construction cost of $100,000 or less. Clause 255 provides that the consent authority must determine the fee by reference to a genuine estimate of the costs, but the estimate must be the estimate indicated in the development application unless the consent authority is satisfied that that cost is neither genuine nor accurate.
72 Development application 1370/02 contained an estimate of the total project value in the sum of $80,000. The applicant submitted that the true project value was much greater and that, as such, the Council had levied an inadequate fee. The applicant submitted that it was a matter of public interest under s 79(1)(e) of the EPA Act that the Council levy the correct development application fee. Moreover, that the Council’s “lax” approach was “not in the public interest nor in accordance with the principles of good public administration”, and that this would lead to “disrespect for the Council and to opportunities for potentially corrupt behaviour”. For these reasons, the applicant submitted that the development consent was void.
73 I do not accept these submissions. First, it was for the Council to determine the relevant aspects of the broad concept of the “public interest” under s 79C(1)(e). Mr Shelley was entitled to conclude that the fee the Council had levied was not a relevant public interest consideration, and so was the Council – s 79C(1) focuses on the development the subject of the application, not the application itself. Secondly, cll 246 and 247 specify a maximum fee, not a minimum fee. Thirdly, the applicant’s speculation about partiality and the potential for corruption is precisely that – mere speculation absent any evidentiary foundation. Given the statutory scheme for payment of development application fees, I doubt that the scheme is capable of being contravened in any meaningful sense. In any event, I do not accept that any “breach” found could operate to invalidate the consent (see the observations above about Project Blue Sky).
Denial of natural justice
74 This claim is based upon the fact that the Council did not consult with objectors (more particularly, Mr Muir) concerning the selection of Mr Shelley and refused permission for Mr Shelley to discuss his report with Mr Muir. Although the applicant’s submissions with respect to this ground overlapped with many of its submissions about Mr Shelley’s lack of independence and qualifications, I consider those matters to be distinct.
75 In Country Energy v Williams (2005) 141 LGERA 426 at [71] to [74], Basten JA (with whom Spigelman CJ and Giles JA agreed) observed that, for such a claim, it was necessary to identify the person responsible for satisfying any procedural fairness obligation, the nature of the obligation which, in turn, required consideration of how the obligation arose, and the legal basis of the obligation.
76 In this case, as the applicant implicitly recognised, the only person who could have had any obligation to provide natural justice was the Council. The applicant did not identify any possible source of an obligation on the Council’s part to consult with objectors about Mr Shelly’s appointment or to allow objectors to discuss with Mr Shelley alleged flaws in his report. The EPA Act and Regulation contain no such obligation. Nor does the LEP or any development control plan that is in evidence. The applicant did not point to any public statement or practice adopted by the Council or any promise made to or arrangement with any person to that effect. Such an obligation could not arise merely from the applicant’s letters requesting the opportunity to be consulted and to address any Council meeting.
77 The selection of the consultant to prepare the report to the Council was a matter for the Council alone. The decision, and the way in which it was taken, cannot found a claim for denial of natural justice such as to invalidate the development consent. Similarly, the Council’s decision not to permit Mr Shelley to discuss his report with Mr Muir after the report had been prepared but prior to the Council meeting of 23 January 2006, was a matter for the Council alone. In the circumstances of this matter, the Council was entitled to take the view that any objector who wished to comment on Mr Shelley’s report should do so by addressing the Council meeting. Moreover, as Mr Muir agreed, nothing prevented him from forwarding a further letter to the Council setting out his concerns with Mr Shelley’s report prior to the Council’s meeting on 23 January 2006. Mr Muir also addressed the Council meeting about Mr Shelley’s report and, I infer, did not indicate to the Council that he was incapable of addressing matters he considered material in the allotted time.
Mr Shelley alleged not to be independent
78 Notwithstanding the reference in Mr Shelley’s report to the Council having sought expressions of interest from independent third parties to assess the application, I infer that the Council sought an expression of interest from Johnson Partners only. However, I am also satisfied that this conclusion has no consequence at law. The Council had no obligation to appoint a consultant to assess the development application. Although the Council chose to do so with the objective of ensuring “an open and transparent processing of the application” given the previous legal proceedings, the Council was entitled to have its own officers prepare the assessment report. Once that fact is recognised, it is apparent that a claim that the Council knowingly chose a consultant who was a former employee cannot lead to invalidity of the development consent.
79 I understood the applicant’s real concern to arise from a belief that the Council had appointed Mr Shelley, in effect, to do its bidding, and that the content of Mr Shelley’s report disclosed that he had done so. The report does not support any such inference. There is no evidence from which I infer that Mr Shelley was doing other than that for which he had been engaged - carrying out his own assessment of the proposed development in accordance with s 79C of the EPA Act. Mr Shelley’s dealings with Ms Lane (about which Ms Lane gave evidence) do not support any such inference. Mr Shelley did not have to approach the question of view impacts with his mind a blank slate, devoid of any notions of likely impacts or their significance. Nor did he have to share Mr Muir’s belief that a person could only assess view impacts if they had expertise in landscape architecture, like Capability Brown. As explained below, I consider the notion of any expert holding a monopoly on the capacity to consider view impacts untenable.
80 Nor is there any evidence to support an inference that the Council appointed Mr Shelley to prepare a report favourable to the proposed development. The function of the Council was to determine the development application. Although the applicant said that it was “reasonable to speculate … that the Council indeed had a position which had been communicated to Mr Shelley and which he was all too willing to adopt as the outcome of his report before it had been written”, there is no basis to characterise such speculation as reasonable. The evidence does not support any such inference. The letter from the owners of 18 May 2005 referring to the costs to which they would be exposed by a further appeal does not support the applicant’s submission that the Council was “cowed” into granting consent by reason of the prospect of legal proceedings. The fact that Mr Shelley noted his prior involvement to the Council and was thereafter appointed supports the inference that the Council considered it appropriate for him to undertake the assessment – a consideration within the sole discretion of the Council.
Mr Shelley alleged to lack the necessary expertise
81 This claim must be understood in the context of the statutory scheme and the particular application. The function of a consent authority under s 80(1) of the EPA Act is to determine development applications. The consent authority in relation to a development application is the council having the function to determine the application or the Minister or public authority otherwise specified (s 4(1)). In determining a development application, the consent authority must take into consideration such of the matters as are specified in s 79C(1) as are relevant to the development the subject of the development application. Although it is common place (and, no doubt, highly desirable) in the system of local government in New South Wales for professional officers of councils or departments to provide reports to consent authorities assessing the s 79C(1) considerations relevant to a particular development, nothing in the EPA Act requires such a report to be prepared or requires the person preparing any such report or the decision-maker to hold any particular expert qualifications. The EPA Act contemplates that collegiate and individual decision-makers are likely to be laypeople, not experts. Given the vastly different categories of development regulated by the EPA Act, that scheme is probably a practical necessity. This general position may be contrasted with the requirements for preparation of an environmental impact statement for designated development, where the form for preparation requires disclosure of the professional qualifications of the author of the statement and the requirement for the Director-General to prepare a report with respect to major infrastructure projects (Div 4 of Pt 6 of the Regulation and s 75I of the EPA Act respectively).
82 To consider a relevant matter requires more than mere advertence to that matter, and has been said to require “an understanding of the matters and the significance of the decision to be made about them, and a process of evaluation, sufficient to warrant the description of the matters being taken into consideration” (Weal v Bathurst City Council and Another (2000) 111 LGERA 181 at [80]. The capacity to understand relevant matters and their significance, and to engage in a sufficient process of evaluation will depend upon the nature of the matter in question. No doubt, consent authorities can be greatly assisted by expert assessment of many issues, particularly those that lie outside ordinary human experience. Nevertheless, it does not follow from that fact that consent authorities must obtain expert assistance on all issues or any particular issue in order to determine a development application in accordance with law. See, to similar effect (albeit in the context of a costs application in a merit appeal), the observations of Preston J in Pyramid Pacific Pty Limited v Ku-ring-gai Council [2006] NSWLEC 522 at [72] and [76].
83 It is inconceivable that a lay person, let alone an experienced town planner such as Mr Shelley, was incapable of considering the view impacts and view sharing implications of the additions to the existing dwelling at 26 Elizabeth Drive from the information which was available in the Council’s file, including the plans of the proposed development and the photographs showing the structural framework of the addition. The location and nature of the proposed additions were obvious from the plans, and the fact that the structural framework of the third storey component had been erected and was photographed by Mr Shelley. In that context, the applicant’s claim is not advanced, for example, by attempting to demonstrate that Mr Shelley, in his report, erroneously quantified the percentage view loss from various vantage points and/or erroneously characterised the significance of the view loss. The evidence overwhelmingly supports the inference that the Council and General Manager considered the impacts arising from view loss. Moreover, the decision to grant development consent despite the view impacts was reasonably open. The decision was not so devoid of plausible justification as to amount to an abuse of process. Minds could readily differ about the appropriate balance to be struck between the development and the amenity of surrounding properties. The strength and depth of Mr Muir’s convictions about the proposed development’s unreasonable impacts cannot convert the decision into one with which the Court may interfere in these proceedings.
84 I reach the same conclusion about the NatHERS certificate referred to in cl 3.9, page 31, of DCP 100. I do not know whether Mr Shelley was an accredited assessor for the purpose of a NatHERS assessment as referred to in cl 1.9 of the DCP, but I am prepared to assume he was not for the purpose of disposing of this argument. The DCP requirement to provide a NatHERS certificate with the application came into force after the application had already been lodged. The absence of such a certificate could not invalidate the consent. Insofar as the DCP otherwise required “energy efficient additions”, Mr Shelley’s report considered the design features of the development that maximised its ecological sustainability. The applicant’s criticism of Mr Shelley for having addressed BASIX when the proposed development was not subject to that requirement given the date of lodgement of the application was misplaced. Mr Shelley was entitled to draw the BASIX requirements to the Council’s attention and to point out that those requirements were inapplicable for the reasons he gave.
Suitability of site for the development
85 Section 79C(1)(c) of the EPA Act prescribes that a consent authority is to take into consideration, as relevant, the suitability of the site for the development. The applicant claimed that Mr Shelley’s report did not consider the suitability of the site for the development and that, accordingly, it should be inferred that the Council (more specifically, the General Manager) also did not consider that matter. I have addressed the latter point in my observations above.
86 The phrase “suitability of the site for the development” operates at a high level of generality. Many facts may be relevant to questions of a site’s suitability for various developments. Identifying those facts is a matter for the consent authority, subject to the confined ground of review of Wednesbury unreasonableness. Importantly, substance not form must govern. A consent authority need not place a label on its consideration in order to consider the substance of that matter. The fact that Mr Shelley’s report did not expressly refer to s 79C(1)(c) or use the phrase “suitability of site for the development” does not mean that Mr Shelley’s report failed to address that matter (see the observations in Hill v Woollahra quoted above). The authorities relied upon by the applicant (in particular, Schroders Australia Property Management Ltd v Shoalhaven City Council and Another (1999) 110 LGERA 130 and Hortis v Manly Council and Another (1999) 104 LGERA 43, both of which were affirmed on appeal - Schroders Australia Property Management Ltd v Shoalhaven City Council and Anor [2001] NSWCA 74 and Manly Council v Hortis and Another (2001) 113 LGERA 321) do not support the applicant’s claims.
87 In fact, Mr Shelley’s report repeatedly addressed the suitability of the site for the development. The report described the site and its surrounds and the development in the introduction. The report considered the topography of the site and concluded that the proposed development represented an appropriate response to the constraints imposed by the slope of the land and the existing dwelling erected upon the land. The report considered the coastal nature of the development and the importance of maintaining visual amenity of the coastline. It analysed the neighbourhood character. It addressed the context and setting of the development in detail. The report concluded that the additions were consistent with the theme, scale and height of many other developments in the surrounding area and allowed the appearance and quality of the dwelling to be considerably improved along with the Elizabeth Drive streetscape in general. All of these matters constituted a consideration of the suitability of the site for the development. Although the applicant disagreed with that conclusion, and virtually all of Mr Shelley’s reasons for reaching it, that disagreement does not establish a failure of consideration.
88 Mr Shelley’s report, moreover, was not the only document available. The report referred to, and summarised, the various objections that had been lodged. Those objections were contained in the Council’s file, which was available to Councillors and, I infer, the General Manager. Those objections also contained information relevant to the suitability of the site for the development, including a copy of the visual impact assessment prepared by Mr Wright. As noted, the Council and the General Manager also had available general and local knowledge - particularly in circumstances where the structural framework of the proposed additions had been erected. The Council resolved that the application be referred to the General Manager for determination having regard to the matters for consideration detailed in s 79C of the EPA Act and other relevant issues. There is no basis for inferring that the Council or General Manager failed to consider the suitability of the site for the development.
Breach of zone objectives
89 The relevant zone objective for the 2(b) zone is “to cater for a wide range of housing types essentially domestic in scale and character and generally not exceeding a height of two storeys”. Under cl 10(3) of the LEP, the Council was not to grant consent to the carrying out of the development unless, in its opinion, the proposed development was compatible with the zone objectives. Mr Shelley’s report dealt with the zone objectives in some detail and concluded that the proposed development was compatible with zone objective (a), even though the development exceeded two storeys in part. The Court of Appeal dealt with this issue in MCC Energy at [5] to [9] and [71] to [76]. The Court of Appeal held that it was “clearly open” to the Council officer to reach the view that the development was compatible with the relevant zone objective, the only caveat being that the officer had apparently characterised the proposed development as a two storey development. The same caveat does not apply to Mr Shelley’s report, which identified that the proposed development, in part, exceeded two storeys.
90 The applicant has not established that the grant of the development consent involved any breach of the zone objectives or that the Council “illegally exercised its discretion” with respect to those zone objectives.
Breaches of DCP 100
91 The applicant submitted that a diagram on page 12 of the DCP prescribed the acceptable form of housing for development on sites such as 26 Elizabeth Drive.
92 The diagram shows “dwelling houses stepping down steep sites” in the context of specific outcomes seeking to avoid “excessive cutting and filling of the site or construction of high retaining walls”. The additions do not involve these activities. The text of the DCP does not support the applicant’s submission that the diagram on page 12 establishes a prescribed form of dwelling house for sloping sites. The claim is unsustainable.
93 The applicant submitted that Mr Shelley was in error in observing that the height control in DCP 100 (cl 3.6 at page 22) was not applicable to the proposed development because it was three storeys, and otherwise misdirected the reader (presumably, the General Manager in particular) by referring to the maximum pitch height of 11m specified for two storey dwellings when the 11m reference was in the context of the peak of the roof or wall abutting the roof for raked or cathedral ceilings.
94 It is appropriate that I quote the whole of the paragraph in the DCP relied upon by the applicant with respect to height. The paragraph is as follows:
· For up to two storey dwellings:height
o a maximum height of 7 metres from natural ground level applies to the ceiling of the uppermost storey; and
o a maximum height of 11 metres from natural ground level applies to the peak of the roof or wall abutting the roof (raked or cathedral ceilings).
· Three storey houses will generally only be considered on steeply sloping sites where the three-storey component extends only [sic] a small part of the house.
95 In order to consider a matter, the decision-maker must identify the relevant matter (see, for example, Zhang v Canterbury City Council referred to above). Did Mr Shelley’s report misdirect the reader about the meaning of the DCP height provision, which misdirection should be inferred to have infected the decision to grant consent? I have already answered the latter question against the applicant above in my general conclusion, but nevertheless now deal with the alleged misdirection.
96 The words of the height provision in the DCP are intractable. The phrase “for up to two storey dwellings” includes one and two storey dwellings, but not three storey dwellings. The second dot point regulates three storey dwellings. As Mr Johnson said, such dwellings are considered “on merit”. The “planning logic” behind the control may well be that compliance with height controls measured from natural ground level on sloping sites may be unduly restrictive. Moreover, as Tobias JA observed in Calleja v Botany Bay City Council (2005) 142 LGERA 104 at [25], to attempt to always find planning logic in planning instruments is “generally a barren exercise”.
97 I also do not consider that Mr Shelley’s reference to the maximum height of 11m should be inferred to have misdirected Council or the General Manager. Mr Shelley made clear that this control did not apply to the proposed development (being three storeys). His reference to 11 metres is nothing more than an indication of the relative height of the proposed development in the context of the overall numerical controls set by the Council.
98 The applicant has not established that Mr Shelley’s report contained any material misdirection about the height provision or that any such misdirection vitiated the General Manager’s decision to grant the consent.
Alleged “cardinal” errors etc in Mr Shelley’s report
99 The applicant annexed to its further amended points of claim a copy of Mr Shelley’s report marked up with all of the cardinal errors, misrepresentations, failures of consideration, consideration of irrelevant matters and conclusion devoid of any reason that the applicant asserted. This marked up version involved detailed comments on every page of Mr Shelley’s report. Most of those comments relate to matters that I have already addressed above or are incapable of giving rise to any recognised ground of judicial review. As such, it is not necessary that I address each and every argument the applicant put forward in this part of its case.
100 Many of the applicant’s criticisms were to the effect that Mr Shelley’s report disclosed a pattern of inappropriately positive comments about the proposed development and inappropriately negative or dismissive comments about the concerns raised by objectors. The fact that Mr Shelley reached a positive conclusion about the proposed development does not mean that his treatment of the proposed development and the objections was inappropriate. It also does not mean that the consideration by the Council and the General Manager were inappropriate. Be that as it may, I will address those issues raised by the applicant that I consider warrant further comment.
101 The report identified that the Court of Appeal had “considered that on merit, Council’s consideration and assessment of the application was reasonable”. The applicant submitted that this was a “gross misrepresentation” of the findings of the Court of Appeal, which had found only that the “high threshold of Wednesbury unreasonableness had not been established”. Although this observation in the report should have been more carefully worded, it cannot be inferred that the Council or the General Manager invalidly deferred to a purported merit assessment by the Court of Appeal, which that Court never undertook. Mr Shelley carried out his own detailed assessment of the development application, as reflected in the report. The Council resolved that, on the basis of the information available to it, it favoured approval of the application subject to conditions, but referred the application to the General Manager for determination having regard to the matters for consideration detailed in s 79C and other relevant issues. The Council and the General Manager had available to them the advice of Abbott Tout, summarised above. The advice made clear the limited nature of the Court of Appeal’s determination, and the obligations of the Council. In this context, the inaccuracy in the report with respect to the effect at law of the Court of Appeal’s decision is immaterial.
102 Mr Shelley concluded that the development did not have an inappropriate impact on privacy. The applicant submitted that Mr Shelley had not mentioned the west facing window looking in 33 Budgewoi Road, or terrace with the same effect. The development is shown in the plans. The report set out the reasons for the conclusion of minimal impact from both the extensions proper and the terrace. The report also identified that objections had been made on the ground of loss of privacy. In this context, the fact that the applicant disputes the validity of Mr Shelley’s reasons cannot support any suggested failure of consideration of the issue of privacy.
103 The applicant submitted that various matters dealt with by Mr Shelley under the heading “Relevant issues” in the context of s 79C were “irrelevant matters”. I disagree. The matters dealt with by Mr Shelley under this heading were capable of falling within s 79C of the EPA Act. They were not irrelevant considerations in the legal sense.
104 The applicant submitted that because Mr Shelley had reached a conclusion about the view enjoyed from the existing first floor level of the dwelling on 26 Elizabeth Drive, there was a “cardinal omission and failure to consider a relevant issue”. I disagree. The extent to which the existing dwelling enjoyed views was not, in terms, a prescribed mandatory consideration. It was a matter for the decision-maker to assess whether that matter was entitled to weight in the assessment process.
105 The applicant made numerous detailed submissions about the inadequacies of Mr Shelley’s assessment of view impacts. One submission was to the effect that Mr Shelley had not referred to (and thus had not considered) Mr Wright’s assessment, attached to Mr Muir’s letter of objection. It is clear that Mr Shelley had considered the objections. Mr Shelley was not subject to an obligation to frame his assessment by reference to Mr Wright’s assessment (that is, to agree with Mr Wright or prove him wrong). The relevant issue for consideration was view loss. There cannot be any doubt that the Council and General Manager considered that issue.
106 Many of the applicant’s submissions alleged misrepresentations on Mr Shelley’s part - for example, that some photographs apparently had been taken with a telephoto lens and others had not, that some photographs have been taken from the extreme edges of balconies and the like. I am satisfied that these matters either constitute an invitation for me to assess the merits of the proposed development (an invitation which I am not able to accept for the reasons I have given) or, insofar as they involve Mr Shelley’s alleged motives, involve unfounded speculation. The same observations apply to the balance of the applicant’s comments on Mr Shelley’s report, which I do not individually address for the reasons I have given.
Wednesbury unreasonableness
107 The applicant submitted that the flawed process adopted by the Council and the flawed result it reached in granting the development consent were manifestly unreasonable. I have dealt with the applicant’s claims about the process of assessment and determination of the development application above. I do not consider any aspect of that process operates to invalidate the consent or evidences manifest unreasonableness.
108 The applicant’s particulars in respect of the claimed manifestly unreasonable result disclose that the true character of the claim is a challenge to the balance which the consent represented between the benefits to be gained from the additions (which the applicant thinks marginal) compared to the view loss and privacy impacts on surrounding properties (which the applicant thinks gross).
109 As Tobias JA observed in MCC Energy at [98], the additions interfere with views to the ocean previously enjoyed by properties to the rear. So much was obvious from the consent plans, the location of the properties, Mr Wright’s report, Mr Shelley’s report and the photographs annexed to Mr Shelley’s report. Notwithstanding these obvious impacts on views, and at least the potential for privacy impacts, the decision to grant development consent cannot be characterised as one so devoid of plausible justification as to amount to an abuse of process. Accordingly, the consent cannot be impugned on the ground of Wednesbury unreasonableness.
E. Conclusions
110 For the reasons set out above, the applicant’s challenges to the validity of development consent 1370/02 cannot be upheld. The class 4 application should be dismissed.
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