Mike George Planning Pty Ltd v Woollahra Municipal Council (No 3)
[2014] NSWLEC 123
•15 August 2014
Land and Environment Court
New South Wales
Case Title: Mike George Planning Pty Ltd v Woollahra Municipal Council (No 3) Medium Neutral Citation: [2014] NSWLEC 123 Hearing Date(s): 01/08/2013 Decision Date: 15 August 2014 Jurisdiction: Class 1 Before: Pepper J Decision: Appeal dismissed. Exhibits to be returned.
Catchwords: APPEAL: s 56A appeal against decision of Commissioner on a question of law - whether Commissioner erred in determining that owner's consent required - whether Commissioner erred in determining that the proposed development was to be used as a dwelling - whether the Commissioner denied the applicant procedural fairness - appeal dismissed. Legislation Cited: Environmental Planning and Assessment Act, ss 79C, 80A, 80(3), 93
Environmental Planning and Assessment Regulation 2000, cls 3, 49(1), 93, 97
Land and Environment Court Act 1979, s 56ACases Cited: Aldi Stores v Newcastle City Council [2010] NSWLEC 227
Bonim Stanmore Pty Ltd v Marrickville Council [2007] NSWLEC 286; (2007) 156 LGERA 12
Boral Cement Pty Ltd v SHCAG Pty Ltd; Minister for Planning and Infrastructure v SHCAG Pty Ltd [2013] NSWLEC 203
Botany Bay City Council v Pet Carriers International Pty Ltd [2013] NSWLEC 147
Brimbella Pty Ltd v Mosman Municipal Council (1985) 79 LGERA 367
Brinara Pty Ltd v Gosford City Council [2010] NSWLEC 230; (2010) 177 LGERA 296
Carstens v Pittwater Council [1999] NSWLEC 249; (1999) 111 LGERA 1
Cavasinni Constructions Pty Ltd v Fairfield City Council [2010] NSWLEC 65; (2010) 173 LGERA 456
Design Power Associates Pty Ltd v Willoughby City Council [2005] NSWLEC 470; (2005) 148 LGERA 233
Dobrohotoff v Bennic [2013] NSWLEC 61; (2013) 194 LGERA 17
Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378; (1983) 53 LGRA 325
Hurstville City Council v Goreski [2011] NSWLEC 188
Mike George Planning Pty Ltd v Woollahra Council [2012] NSWLEC 1357
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259
Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S154/2002 [2003] HCA 60; (2003) 201 ALR 437
Segal v Waverley Council [2005] NSWCA 310; (2005) 64 NSWLR 177
Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141
Svedas v Council of the City of Sydney [2011] NSWLEC 215
Sydney Water Corporation v Caruso [2009] NSWCA 391; (2009) 170 LGERA 298
Village McEvoy Pty Ltd v Council of the City of Sydney (No 2) [2010] NSWLEC 17; (2010) 176 LGERA 119
Warkworth Mining Limited v Bulga Milbrodale Progress Association Inc [2014] NSWCA 105; (2014) 200 LGERA 375
Wollondilly Shire Council v 820 Cawdor Road Pty Ltd [2012] NSWLEC 71Category: Principal judgment Parties: Mike George Planning Pty Ltd (Applicant)
Woollahra Municipal Council (Respondent)Representation - Counsel: Mr M V Sahade (Applicant)
Mr P Rigg (Solicitor) (Respondent)- Solicitors: Oliveri Lawyers (Applicant)
Norton Rose Fulbright (Respondent)File Number(s): 10005 of 2013
JUDGMENT
Mike George Appeals a Decision of a Commissioner
This is an appeal pursuant to s 56A of the Land and Environment Court Act 1979 against a decision of a Commissioner (Mike George Planning Pty Ltd v Woollahra Council [2012] NSWLEC 1357) dismissing a Class 1 appeal and refusing a development application by the applicant, Mike George Planning Pty Ltd ("Mike George"), for a change of use of a studio over a communal garage to an apartment, that is to say, a dwelling ("the DA").
The summons commencing the appeal raises five grounds of appeal (a sixth ground was abandoned by Mike George prior to the hearing), which are as follows:
1. The Commissioner erred in finding that the development application required the consent of the Owners Corporation.
2. The Commissioner erred in assuming that the applicant did not object to condition G.2 of the proposed conditions of consent and or that the proposed condition G.2 was an appropriate condition to impose on the applicant and or that the proposed condition G.2 formed part or ought to have formed part of the development application.
3. The Commissioner erred in construing the development application as the creation of a separate dwelling or domicile and in assessing the development application on that basis only.
4. The Commissioner erred in failing to take into account the agreed expert evidence that a condition to the effect that the subject premises would not be used as a separate domicile to that of Lot 3 and would not be the subject of a residential tenancy agreement and would not be advertised for lease or rental or any similar arrangement, would remove all concerns in respect of amenity and that the subject development application would not be the creation of a separate domicile to that of Lot 3.
5. The Commissioner denied the applicant procedural fairness and erred in making expert findings with respect to noise in the absence of expert evidence and or in failing to canvas the issue of noise with the parties prior to judgment.
It should be noted that during the course of the hearing Mike George was given the opportunity to amend the grounds of appeal to refine the bases upon which it asserted that the Commissioner's decision ought to be overturned. It declined to do so. This is important because in both its written and oral submissions, Mike George attempted to raise new, or vary existing, grounds of appeal. There having been no formal application to amend its grounds of appeal, this judgment deals only with those grounds as pleaded.
For the reasons that follow the appeal must be dismissed.
Legal Principles Applicable in Determining the Appeal
The principles according to which this appeal falls to be determined may be summarised as follows:
(a)first, the appeal is only concerned with errors of law and not errors of fact (Village McEvoy Pty Ltd v Council of the City of Sydney (No 2) [2010] NSWLEC 17; (2010) 176 LGERA 119 at [25]; Brinara Pty Ltd v Gosford City Council [2010] NSWLEC 230; (2010) 177 LGERA 296 at [28]-[30] and Hurstville City Council v Goreski [2011] NSWLEC 188 at [50]-[52]);
(b)second, the Commissioner must give adequate reasons for her decision refusing consent. This means that she must refer to evidence that is important or critical to the determination of the issues in the case (Village McEvoy at [26] and the authorities referred to thereat). However, as was cautioned in Segal v Waverley Council [2005] NSWCA 310; (2005) 64 NSWLR 177 this does not mean that (at [93]):
...every argument or issue advanced by a party in support of the principal issues must be considered by the judge and reasons given for accepting or rejecting it. A judge's duty to give reasons is, in my opinion, confined to the essential ground or grounds upon which the decision rests (Soulemezis) and does not include a requirement to deal with a submission or argument that is otherwise unnecessary to the decision arrived at provided that, in respect of that decision, the judge's reasoning process is articulated and relevant findings made (Housing Commission (NSW) v Tatmar).
(c)third, an overly critical examination of the Commissioner's decision for errors of law should not be employed (Brimbella Pty Ltd v Mosman Municipal Council (1985) 79 LGERA 367 at 368; Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 291; Carstens v Pittwater Council [1999] NSWLEC 249; (1999) 111 LGERA 1 at [76]; Bonim Stanmore Pty Ltd v Marrickville Council [2007] NSWLEC 286; (2007) 156 LGERA 12 at [7]; Village McEvoy at [28]-[31] and Goreski at [53]); and
(d)fourth, if the decision of the Commissioner reveals an error of law, the decision is only vitiated if the error is material to the decision made (Design Power Associates Pty Ltd v Willoughby City Council [2005] NSWLEC 470; (2005) 148 LGERA 233 at [34]; Goreski at [53]-[56] and Sydney Water Corporation v Caruso [2009] NSWCA 391; (2009) 170 LGERA 298 at [133]-[136]). An error will not be material to the decision made if the matter complained of on appeal was a matter that was not the subject of submissions made to the Commissioner below in a way that called for a reasoned consideration of that matter (Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378; (1983) 53 LGRA 325 at 386-387 and at 332 respectively).
The Proposed Development
As referred to above, the DA before the Commissioner was for a change in use at Lot 3 at 84-86 Wolseley Road, Point Piper ("the property").
The DA proposed to use the existing studio for residential purposes to permit occupation by the son or a guest of the owner of the property.
In her judgment, the Commissioner described the property the subject of the DA and its environs as follows (at [7]-[8]):
7 84-86 Wolseley Road is a waterfront site, on the western side of Wolseley Road and the site falls from the street towards the harbour. The total site area is 1826 square metres. The original house, referred to as 84 Wolseley Road, is now a residential flat building divided into three apartments, Lots 1 and 2 and Lot 1 has a separate carer's accommodation. A contemporary house has been constructed below the original house and is identified as Lot 3 and is referred to as 86 Wolseley Road. 86 Wolseley Road (Lot 3) is accessed via paths and an inclinator positioned on a corridor along the northern boundary of the site.
8 There is a separate garage building, accessed via a driveway from Wolseley Road, which houses two tandem garages for Lots 1 and 2 and a double and single garage for Lot 3. This building is cut into the fall of the site adjacent to the driveway, which wraps around the eastern and southern sides of the building, at the eastern end of the site. The first floor of the building, referred to as the studio, consists of a large living room with a kitchen, a bedroom and a bathroom. The majority of the studio's windows are in the western façade, above the garage doors, overlooking the vehicle manoeuvring area and the eastern façade of 84 Wolseley Road (Lots 1 and 2). The studio is part of 86 Wolseley Road (Lot 3) and has an area of 79 square metres.
On 12 May 1998 development consent DA 28/1998 ("the 1998 consent") was granted for the driveway, garages, studio and associated landscaping. Condition 33 of this consent stated that "the premises shall not be used for residential purposes at any time."
The Planning Framework Informing the Commissioner's Decision
The Commissioner set out the planning framework governing her consideration of the DA (at [12]-[16]). First, she observed that pursuant to s 79C(1)(a)(iv) of the Environmental Planning and Assessment Act 1979 ("the EPAA") she was required to take the Environmental Planning and Assessment Regulation 2000 ("the EPA Regulations") into account. Section 79C(1)(a) states as follows:
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 proposed instrument that is or has been the subject of public consultation under this Act and that has been notified to the consent authority (unless the Director-General has notified the consent authority that the making of the proposed instrument has been deferred indefinitely or has not been approved), and
(iii) any development control plan, and
(iiia) any planning agreement that has been entered into under section 93F, or any draft planning agreement that a developer has offered to enter into under section 93F, and
(iv) the regulations (to the extent that they prescribe matters for the purposes of this paragraph), and
(v) any coastal zone management plan (within the meaning of the Coastal Protection Act 1979),
that apply to the land to which the development application relates,Second, she noted that under cl 49(1) of the EPA Regulations, development applications could relevantly be made "(a) by an owner of the land to which the development application relates", or "(b) by any other person, with the consent in writing of the owner of that land".
Third, she had regard to cl 93 of the EPA Regulations that concerned "fire safety and other considerations". It provides:
93 Fire safety and other considerations
(1) This clause applies to a development application for a change of building use for an existing building where the applicant does not seek the rebuilding, alteration, enlargement or extension of a building.
(2) In determining the development application, the consent authority is to take into consideration whether the fire protection and structural capacity of the building will be appropriate to the building's proposed use.
(3) Consent to the change of building use sought by a development application to which this clause applies must not be granted unless the consent authority is satisfied that the building complies (or will, when completed, comply) with such of the Category 1 fire safety provisions as are applicable to the building's proposed use.
Note. The obligation to comply with the Category 1 fire safety provisions may require building work to be carried out even though none is proposed or required in relation to the relevant development consent.
(4) Subclause (3) does not apply to the extent to which an exemption is in force under clause 187 or 188, subject to the terms of any condition or requirement referred to in clause 187 (6) or 188 (4).
(5) The matters prescribed by this clause are prescribed for the purposes of section 79C(1)(a)(iv) of the Act.
A "Category 1 fire safety provision" is defined in cl 3 of the EPA Regulations to mean "the following provisions of the Building Code of Australia, namely, EP1.3, EP1.4, EP1.6, EP2.1, EP2.2 and EP3.2 in Volume One of that Code and P2.3.2 in Volume Two of that Code."
Lastly, the Commissioner set out in her judgment the definition of "dwelling" in Schedule 1 of the Woollahra Local Environment Plan 1995 ("the LEP"), which is as follows:
Dwelling means a room or suite of rooms occupied or used or so constructed or adapted as to be capable of being occupied or used as a separate domicile.
The Hearing Before the Commissioner
Before the Commissioner, the respondent, Woollahra Municipal Council's ("the council") contentions were four-fold (at [2]):
● The application, if approved, will require work to be carried out on common property and there is no owners' consent in respect of the work that is to be carried out on common property;
● The proposal is an intensification of the existing residential apartment development, which is not supported in a 2(a) Residential Zone;
● The existing 7 car garage on the level below the proposal will impact on the amenity of the guest apartment;
● The proposal does not provide any off street parking and the proposed dwelling does not provide for any private open space.Although it was the council's position that the DA should be refused, the council nonetheless presented draft conditions of consent to the Commissioner at the hearing. Conditions A.1, B.4 and G.2 are relevant for the purposes of this appeal. They stated:
A.1 Deferred Commencement Condition - (s80(3) of the Act, cl.95 of the Regulation)
Modification of consent - S80A(1)(b) and S80A(5) of the Act.
Lodgement with Council of a Notice of Modification of development consent of DA 28/1998 endorsed 12 May 1998, as modified by consent dated 28 July 1998, for the deletion of condition 33 in compliance with the requirements of clause 97 of the Environmental Planning and Assessment Regulation 2000 and, if repealed, in accordance with any savings or transitional provision....
B.4 The subject premises shall not be used as a domicile other than by an immediate family member of the owner of Lot 3 or for temporary occupation by a guest of that family for a period of not more than two months in any 12 month period. The subject premises shall not to be [sic] advertised for rental or for lease or for any similar arrangement.
...
G.2 Fire safety upgrade - Change of building use (cl. 93 of the Regulation)
Council considers pursuant to clause 93 of the Regulation that it is appropriate to require the existing building to be upgraded to total or partial conformity with the BCA.
The Construction Certificate plans and specification required to be submitted to the Certifying Authority pursuant to clause 139 of the Regulation must detail building upgrade works required by this condition.
The Certifying Authority must be satisfied that such work, to be implemented as part of the development, will upgrade the building to bring it into compliance with the following provisions of the BCA in force at the date of issue of the Construction Certificate:
a) That the car park shall be separated from the sole occupancy unit in accordance with the requirements of Clause C2.8 of the BCA;
b) That smoke alarms shall be installed throughout the building in accordance with the requirements of Specification E2.2a Clause 3 of the BCA;
Note: The Certifying Authority issuing the Construction Certificate has no power to remove the requirement to upgrade the existing building as required by this condition. Where this conditions [sic] specifies compliance with performance requirements of the BCA the Certifying Authority, subject to their level of accreditation may be satisfied as to such matters. Where this condition specifies compliance with prescriptive (deemed to satisfied) provisions of the BCA these prescriptive requirements must be satisfied and cannot be varied unless this condition is reviewed under section 82A or amended under section 96 of the Act.
Note: This condition does not set aside the Certifying Authorities responsibility to ensure compliance with clause 143 of the Regulation in relation to Fire Protection and Structural Adequacy.
Note: AS 4655 Guidelines for fire safety audits for buildings (or any succeeding AS) should form the basis of any fire upgrade report.
In her judgment, the Commissioner noted that two objectors provided evidence onsite that (at [17]):
(a)the proposed development would result in additional cars parked in the driveway to the property or on Wolseley Rd;
(b)there would be a resultant amenity impact on Lots 1 and 2, located immediately adjacent to the garage; and
(c)the proposed development would require the building to be upgraded to meet fire safety regulations, again with attendant amenity impacts.
Expert planning evidence was presented by both parties: Mr Simon Taylor, on behalf of the council, and Mr Mike George, on behalf of Mike George. In addition, Mr Peter Boyce provided expert building compliance evidence on behalf of Mike George. Neither planning expert knew the reason why condition 33 precluding the residential use of the studio was in the 1998 consent (at [19]).
The evidence fell into four categories: intensification of use; amenity impacts; the internal amenity of the proposal; and the necessity for owner's consent for work on common areas (at [18]-[27]).
The Commissioner's Reasons for Refusing to Grant Consent to the DA
The Commissioner held that consent to the making of the DA by the Owners Corporation was required for two principal reasons. First, because the obligation to comply with the Category 1 fire safety provision pursuant to cl 93(3) of the EPA Regulations, due to the proposed change of use, necessitated work to be carried out to common areas, notwithstanding that no such works were proposed in the DA. This was evident from draft condition G.2, the first sentence of which the Commissioner construed to mean "total conformity with the BCA", because she considered "partial conformity" to be an "ambiguous concept" (at [39]).
Second, the Commissioner concluded that she was not satisfied that additional requirements for Building Code of Australia ("BCA") compliance related to the proposed change of use were not needed. This was because pursuant to cl 93 of the EPA Regulations the change of use from a "studio" and "storage area" to a dwelling required, according to the evidence, more stringent fire resistance requirements in conformity with the increased risk associated with the occupation of the dwelling (at [41]).
Thus by dint of the inclusion of draft condition G.2, which Mike George did not dispute, the work to the common property formed part of the DA, and therefore, the owner's consent was required in order to satisfy the condition. The consent not having been granted, the Commissioner held that she had no power to determine the appeal (at [42]).
The Commissioner rejected the planning evidence of both experts and the submission of Mike George that because the studio was part of Lot 3, 86 Worseley Rd, the change of use would not result in the intensification of the use of the site. This was because the dwelling would be available for occupation by any person associated with the occupants of the property, and therefore, she did not accept that the proposal should be equated with the relocation of a bedroom. The consequence of an additional dwelling was the intensification of the use of the site because it would be occupied as a separate domicile (at [29]-[30]).
In this regard, the Commissioner noted that development for the purpose of a residential flat building was prohibited in that particular residential zone and that the current apartment building relied on existing use rights. It would therefore be inappropriate to increase the density of development in that zone (at [31]).
Finally, the Commissioner took into account photographs demonstrating that the existing allocated parking spaces were not always sufficient to cope with demand and that the addition of a further dwelling on the property without an accompanying car space or garage could exacerbate the congestion (at [32]).
In terms of the impact of the proposed development on Lots 1 and 2 at 84 Worseley Rd, the Commissioner found that there was the potential for unacceptable noise and privacy impacts because of the positioning of the dwelling adjacent to those lots (at [33]-[35]).
In relation to the internal amenity of the proposed development, the Commissioner accepted the evidence of Mr Taylor that the amenity was "poor" because the proposed apartment had no outdoor space and was located above a communal garage for seven vehicles, with its only outlook the vehicle manoeuvring area for all the vehicles on-site, both of which would result in significant internal noise disturbance (at [36]-[37]).
The Commissioner therefore concluded that (at [43]-[46]):
43 The Owners Corporation has not granted its consent to the making of the development application or work to common property and does not intend to do so on the evidence before me. Consequently, the Court has no power to determine the appeal in the absence of owners' consent.
44 In the alternative, should I be wrong on this approach, my findings on the merits of the matter is that the proposal will have a detrimental impact on the amenity of the occupants of the residential flat building at 84 Wolseley Road (Lots 1 and 2) and the internal amenity of the proposed dwelling and that these impacts are of such consequence, that it would not be appropriate to grant consent, if there were power to do so.
45 Furthermore, I am not satisfied that some of those options contemplated by Messrs. George and Boyce to comply with condition G.2 wont have an adverse impact on the amenity of Lots 1 and 2 and the northern neighbour, 88-90 Wolseley Road.
46 Given the above findings, it is not necessary to deal with the disputed conditions of consent.
Grounds 1 and 2: the Need for the Owners Corporation's Consent
Given the related subject matter of appeal grounds 1 and 2, it is convenient to deal with them together.
The council did not accept that the question of whether the Owners Corporation's consent was required was a question of law. Mike George submitted that it "clearly" was. To the extent that the grounds turn upon the proper construction of either cls 49(1) or 93 of the EPA Regulations, this undoubtedly raises a question of law. However, if the grounds turn upon the Commissioner's application of those correctly interpreted regulations to the evidence before her, this is likely to give rise to a question of fact, which is beyond the purview of this appeal.
With respect to grounds 1 and 2 the submissions of Mike George may be summarised as follows:
(a)first, it did in fact object to draft condition G.2;
(b)second, it was wrong to construe the DA as requiring works to the common property;
(c)third, the requirements of cl 93 had already been satisfied under the terms of the 1998 consent;
(d)fourth, the Commissioner erroneously proceeded on the basis that the DA required compliance with G.2; and
(e)fifth, the Commissioner fundamentally misconceived the nature of the DA before her insofar as no building works were proposed by Mike George, only a change of use.
In short, Mike George argued that by misunderstanding the application before her, and by failing to assess that application (namely, a DA that required no building works to be carried in order to be fire safe compliant), the Commissioner had constructively failed to exercise her jurisdiction to determine the DA.
In response, the council submitted that whether or not Mike George consented to condition G.2, it was an essential condition for the Commissioner (as the consent authority) to consider in assessing the DA in the absence of any application to modify the 1998 consent to vary condition 33 permitting residential occupation of the studio and storage area.
Mike George took the Court to a number of examples in the transcript of the proceedings before the Commissioner where it purportedly expressed its lack of consent to condition G.2. In particular, it relied upon the following passage (T26.09-26.28):
So we say the issues before the Court are really in essence very simple. There is already a statutory regime in place for buildings whether they're occupied or not, and by that I mean they can be occupied by residents which do not comply with fire safety standards and council has the power and the obligation to audit the building and issue orders to make it compliant and so there's already a regime in place. So with respect to the development approval sought in this Court it's not a question of whether the body corporate consents to make its building compliant with fire safety, their consent is not required when the council imposes fire safety issues and orders on the body corporate, whoever the owner is they have to comply.
So this application is not in any way seeking a change of classification with respect to Building Code of Australia issues or any other manner, it is merely seeking the deletion of condition 33 which in essence is an archaic condition ever since the building approval was granted which allowed for the construction of the building in the way that is [sic] has been constructed and so issues about fire safety, occupation certificates and making the building compliant with fire safety is nor [sic] raised by the specific development application which is before the Court, so we say it's a red herring and is not a matter which impacts on whether or not this is good development or not.
With respect this, and the other passages referred to by Mike George, were entirely equivocal. This purported oblique objection to the imposition of condition G.2 can be contrasted with the very specific objection made to conditions A.1 (T25.35) and G.1 (T26.5).
In my view, in light of the way that Mike George framed its submissions before the Commissioner on this issue, she did not commit a legal error by concluding that, "the applicant has not disputed the inclusion of condition G.2" (at [42]). This is because Mike George did not clearly do so.
In any event, the Commissioner did record the substance of Mike George's submission in this regard (at [28]):
28. Mr Sahade submits that there is already a legal requirement for the garage and studio building to comply with the BCA and therefore the contention raised by Council regarding the lack of owners' consent for works to common areas is a red herring, as owners' consent is not required for BCA compliance associated with the 1998 development consent. He submits that the issue of fire safety is not raised by the application before the Court.
The Commissioner went on, however, to reject this submission. She was, in my opinion, correct to do so.
It did not matter that no building work to the common areas was proposed by the DA. This was because by reason of the change of use from a studio to residential accommodation or a dwelling (which was plainly what was proposed by the DA when regard was had to the definition of "dwelling" in the LEP: see the discussion of what constitutes a "dwelling" below at [54]) the Commissioner was required to consider whether the current fire protection and the structural capacity of the building was appropriate to the building's proposed use (cl 93(2) of the EPA Regulations). Moreover, the Commissioner was obliged to be satisfied that the building either complied, or when completed, would comply, with "such of the Category 1 fire safety provisions as are applicable to the building's proposed use" (cl 93(3) of the EPA Regulations). As noted above, a "Category 1 fire safety provision" is defined to pick up provisions of the BCA.
Clause 93 was a mandatory consideration imposed on the Commissioner by dint of the operation of s 79C(1)(a)(iv) of the EPAA and cl 93(5) of the EPA Regulations. It included taking into account compliance with the Category 1 fire safety provisions.
The Commissioner, as the consent authority, had the power to impose conditions on any consent she granted to the DA (s 80A(1)(a) of the EPAA). This included a condition requiring the carrying out of works (whether or not the works were on land to which the DA related) relating to any matter referred to in s 79C(1) (s 80A(1)(f) of the EPAA). The Commissioner also had the power to grant a deferred commencement consent (s 80(3) of the EPAA).
It therefore cannot, in light of the foregoing analysis, be concluded that the Commissioner committed any legal error by having regard to condition G.2 of the draft conditions of consent.
If it is accepted that the Commissioner was entitled to take into account condition G.2, can it therefore be argued that the Commissioner committed a legal error in finding that the DA required the consent of the Owners Corporation?
Mike George argued, based on the evidence of its own BCA expert, Mr Boyce (see the Supplement to the Joint Planners Statement dated 23 November 2012), that if the building was built in 1998 as the 1998 consent indicated, then it would have already been assessed against, and was compliant with, the 1996 BCA, which was the basis of the current BCA, especially in relation to fire protection. This view was repeated by Mr Boyce in his oral evidence (T24.10-24.37).
However, Mr Boyce's written evidence appeared to be contingent on the council having issued an occupation certificate when the building was completed, indicating that all the fire requirements had been completed at that stage. As Mr Taylor noted there was no record within the council's files of an occupation certificate having been issued for the 1998 consent. Moreover, it was Mr Taylor's opinion that in order to comply with the BCA, work to the common property was necessary (T24.45-24.49).
Ultimately, the Commissioner accepted the council's submission that building works were required on the property in order to ensure compliance with the BCA. Put another way, the Commissioner did not accept that the property, upon its use being altered, would comply with the BCA fire requirements. This was a finding of fact. She also accepted the evidence of both Mr Boyce and Mr George as to how this compliance could be achieved (at [27] and [40]). Likewise, this was a finding of fact.
The Commissioner therefore determined that condition G.2 was an appropriate condition to impose on Mike George and that it ought to form part of any consent granted by her to the DA. She was entitled to do so, and no legal error upon her part is disclosed.
The works to be carried out by Mike George to comply with condition G.2 necessitated development to be carried out on the common property. This was also a finding of fact by the Commissioner, that was readily supported by the expert evidence.
Once this is accepted, cl 49(1)(b) of the EPA Regulations mandated that the owner of the common property (the Owners Corporation) consent to the making of the DA. It did not (another finding of fact), and accordingly, the Commissioner held that she was unable to determine the appeal without it. Again, no legal error is disclosed in the Commissioner's conclusion.
Mike George could not avoid the need to obtain the Owners Corporation's consent by relying upon the abrogation of cl 33 of the 1998 consent. This is because the deletion of cl 33, as reflected by the imposition of draft condition A.1, about which there was no complaint, required the modification of the 1998 consent (see s 80A(1)(b) of the EPAA). Any such modification had to be "in accordance with the regulations" (s 80A(5)). Clause 97(1)(e) of the EPA Regulations, which is concerned with the modification of development consents, also requires a statement, if the applicant is not the owner of the land, signed by the owner of the land to the effect that the owner (the Owners Corporation) consent to the modification. Again, there was none.
There having been no error on a question of law disclosed, it follows that grounds 1 and 2 of the appeal must be dismissed.
Grounds 3 and 4: the Property Was to be Used as a "Dwelling" Resulting in an Intensification of Use
Again it is convenient to deal with grounds 3 and 4 together given that they raise the same complaint, namely, that the Commissioner erred in finding that the change of use from a studio to residential accommodation would result in an intensification of the use of the site (at [29]).
Turning first to ground three, as expressed, this ground potentially raises a question of law to the extent that it appears to be founded on the construction of the definition of "dwelling" in the LEP and its application to the DA.
The standard definition of "dwelling" in the LEP (quoted above) has been examined by this Court on many occasions. In Dobrohotoff v Bennic [2013] NSWLEC 61; (2013) 194 LGERA 17 I said the following (at [33] and [45]-[46]):
33 The definition of "dwelling" has two limbs. The first concerns the actual occupation or use of a room or rooms as a separate domicile and the second deals with the hypothetical test of whether a room or rooms are "so constructed or adapted as to be capable of being occupied or used" as a separate domicile (Leichhardt Municipal Council v Mansfield (1985) 57 LGRA 214 at 221; Warringah Shire Council v Jennings Group Ltd (1992) 75 LGRA 402 at 407; Wollongong City Council v Vic Vellar Nominees Pty Ltd [2010] NSWLEC 266; (2010) 178 LGERA 445 at [28] and Wollondilly Shire Council v 820 Cawdor Road Pty Ltd [2012] NSWLEC 71 at [19]). Both limbs were relied upon by Ms Bennic.
...
45 Furthermore, when considering the first limb of the definition of "dwelling", regard must be had to the notion of "domicile" contained within it (820 Cawdor Road at [24]), and the critical element of permanence. Inherent within the term "domicile" is, as a long line of authority in this jurisdiction has established, the notion of a permanent home or, at the very least, a significant degree of permanence of habitation or occupancy (Potter v Minahan [1908] HCA 63; (1908) 7 CLR 277 at 288; North Sydney Municipal Council v Sydney Serviced Apartments Pty Ltd (1990) 21 NSWLR 532 at 538A-B; KJD York Management Services Pty Ltd v City of Sydney Council [2006] NSWLEC 218; (2006) 148 LGERA 117 at [8]- [18]; City of Sydney Council v Waldorf Apartments Hotel Sydney Pty Ltd [2008] NSWLEC 97; (2008) 158 LGERA 67 at [38]; Warlam Pty Ltd v Marrickville Council [2009] NSWLEC 23; (2009) 165 LGERA 184 at [35]- [36]; Najask Pty Ltd v Palerang Council [2009] NSWLEC 39; (2009) 165 LGERA 171 at [15]; Vic Vellar at [32]; Dooralong Residents Action Group Pty Limited v Wyong Shire Council [2011] NSWLEC 251; (2011) 186 LGERA 274 at [110]; 820 Cawdor Road at [24]; GrainCorp Operations Limited v Liverpool Plains Shire Council [2012] NSWLEC 143 at [20]- [27] and Haddad at [47]).
46 Mindful of the caution with which dictionaries may be used to interpret instruments (House of Peace Pty Ltd v Bankstown City Council [2000] NSWCA 44; (2000) 48 NSWLR 498 at [25]- [29] and GrainCorp at [26]), these decisions are consonant with and supported by the ordinary meaning of the word "domicile". In the Macquarie Dictionary (online ed), for example, the word is defined to mean "1. a place of residence; an abode; a house or home. 2. Law a permanent legal residence." Likewise the Oxford English Dictionary (online ed) defines it as "1. A place of residence or ordinary habitation; a dwelling-place, abode; a house or home. 2.a. Law. The place where one has his home or permanent residence, to which if absent, he has the intention of returning."
In the present case, the proposed development was described in the DA as a "studio apartment to be permitted for habitation". The current use of the property was described as an "apartment with no permission to habitate [sic]". A comparison between the plans accompanying the DA and those accompanying the 1998 consent showed the creation of a separate bedroom out of the previously described "store" area, together with an ensuite bathroom and the installation of a kitchen and a laundry. The "studio" and "store area" in the 1998 consent contained none of these internal features, although as is apparent from the Commissioner's description of the property, these features presently exist in the property, albeit without consent (at [8] and [9]).
There can be little contest that the use proposed in the DA was for a "dwelling" as defined in the LEP. What is envisaged by the DA is a one bedroom apartment with kitchen, bathroom and laundry facilities - all of the indicia of a "dwelling" contained in the second limb of the definition (see Wollondilly Shire Council v 820 Cawdor Road Pty Ltd [2012] NSWLEC 71 at [23]).
With respect to the first limb of the definition of the term "dwelling", the following legal principle applies as stated by Lloyd J in 820 Cawdor Road (at [24], and see also Bennic at [45], and the cases cited thereat):
24 In considering the first limb of the definition the focus must be on the word "domicile". In Vic Vellar Nominees Pty Ltd Biscoe J held, at [32], that in this context "domicile" embodies the idea of a permanent home or a significant degree of permanency or occupation. Biscoe J cited a large number of authorities in support of this statement, including Burwood Municipal Council v Aboriginal Hostels Ltd (1979) 39 LGRA 150 at 153, North Sydney Municipal Council v Sydney Serviced Apartments Pty Ltd (1990) 21 NSWLR 532 at 537-538, and KJD York Management Services Pty Ltd v City of Sydney Council [2006] NSWLEC 281; 148 LGERA 117 at [8]-[18], inter alia. I accept this as the concept of the word "domicile".
On Mike George's own evidence, namely, that it was envisaged that the son or another "immediate family member" of the owners of Lot 3 would live in the apartment, this limb was, in my opinion, satisfied.
The inclusion of draft condition B.4 does not alter this position. It did not, as Mike George submitted, render the proposed use stipulated in the DA other than as a "dwelling". The apartment would, even absent a lease, remain occupied with the requisite degree of permanency (cf Bennic).
Ground 3 of the appeal must therefore be rejected.
Mike George complained in ground 4 that the Commissioner failed to take into account the following evidence given by Mr Taylor (T22.29-23.12):
SAHADE: When this application came before you for assessment your real concern was whether or not it could be used for an independent domicile by a third party.
WITNESS TAYLOR: Yes
SAHADE: And because if that's the case it could intensify with respect a parking [sic] or other matters?
WITNESS TAYLOR: Yes
SAHADE: That concern, in effect, disappears if it is used in conjunction with lot 3 and is not separately tenanted, is that right?
WITNESS TAYLOR: Yes
SAHADE: Now whether it be the son, it could also be, for example, if an occupier didn't wish to sleep on the couch one night but wanted to sleep in the studio above, that would not be an intensification or an independent use?
WITNESS TAYLOR: Correct
SAHADE: Or to use the subject premises as a gym or to use it for the purposes of showering or having a siesta; residential purposes but not independent use.
WITNESS TAYLOR: Correct
SAHADE: Now a condition to the effect that those subject premises shall not be occupied and used as an independent domicile to lot 3 and shall not be the subject of a residential tenancy agreement and shall not be advertised for rental or lease would satisfy those concerns?
WITNESS TAYLOR: Correct
But a proper reading of the Commissioner's reasons reveals the assertion that she failed to consider this evidence to be incorrect. At [22] the Commissioner stated the following:
22 During cross-examination, Mr Taylor agreed with Mr Sahade's submission that if the proposal is occupied by the family or guest of 86 Wolseley Road (Lot 3) it does not constitute an intensification of the use of the site.
Although the Commissioner did not expressly refer to draft condition B.4, in my view, the omission did not result in any error by her. The gravamen of the condition was summarised in the cross-examination exchange between Mr Taylor and counsel for Mike George. The Commissioner took this exchange into account which was sufficient.
The Commissioner went on to disagree with the expert planning evidence in this regard, including, it may be inferred, that of Mr Taylor (at [29] and [30]):
29 I disagree with the planners' evidence and Mr Sahade's submission that because the apartment is part of 86 Wolseley Road (Lot 3), the occupation of the apartment does not result in an intensification of use of the site. The proposed use of the apartment by the son of the applicant is irrelevant because if the proposal is approved, it will be available for occupation by any person/s associated with the occupants of 86 Wolseley Road (Lot 3). Consequently, I do not accept that the proposal is equivalent to the relocation of a bedroom within 86 Wolseley Road (Lot 3).
30 The proposal provides an additional dwelling on the site and regardless of who is occupying the dwelling or whether the dwelling is identified as a part of 86 Wolseley Road (Lot 3) or not, the consequence of another dwelling is an intensification of the site, as it will be occupied as a separate domicile.
Contrary to the submissions of Mike George, the Commissioner, as the consent authority in a Class 1 merits appeal, was entitled to substitute her own opinion for that of the planning experts, provided it was open for her to do so on the evidence. The authorities referred to by Mike George in support of its position were distinguishable on this basis.
In its written and oral submissions, Mike George sought to recast the fourth ground of appeal as either a failure by the Commissioner to exercise jurisdiction or because she made a finding (presumably that the proposal would result in an intensification of use) without any evidence to support it.
Several responses are warranted to these submissions. First, neither of these two grounds of appeal were articulated in the summons, and as I stated above, these reasons address only the appeal as pleaded by Mike George. Second, neither is correct. As the passages above demonstrate, the Commissioner properly considered the DA before her, including the substance of condition B.4. In addition, there was evidence before her in the Joint Report by Town Planners by Mr George and Mr Taylor and the photographs of the vehicle manoeuvring area, that the proposed development would result the intensification of the use of the site by the introduction of an additional dwelling. To the extent that Mike George disagrees with the Commissioner's finding, this is not reviewable on appeal.
I therefore dismiss ground 4 of the appeal.
Ground 5: Denial of Procedural Fairness
This ground of appeal is directed to the asserted failure by the Commissioner to canvass the issue of noise with the parties prior to making a finding that the proposed development had the "potential for unacceptable noise...impacts" at [34] and again at [44] (quoted above at [28]).
Initially, as stated in Mike George's written and oral submissions this ground had four elements:
(a)first, that the Commissioner denied it procedural fairness by making findings with respect to noise on the internal amenity of the proposed development;
(b)second, that the Commissioner denied it procedural fairness by making findings with respect to noise on the external amenity of Lots 1 and 2 at 84 Wolseley Rd;
(c)third, that the Commissioner made both findings in the absence of any evidence; and
(d)fourth, that the Commissioner made both findings in the absence of any expert evidence.
At the hearing, Mike George abandoned any reliance upon the third and fourth elements of this ground of appeal.
It is now settled that a failure to accord procedural fairness gives rise to an error on a decision on a question of law (Warkworth Mining Limited v Bulga Milbrodale Progress Association Inc [2014] NSWCA 105; (2014) 200 LGERA 375 at [39]; Botany Bay City Council v Pet Carriers International Pty Ltd [2013] NSWLEC 147 at [99]-[101]; Boral Cement Pty Ltd v SHCAG Pty Ltd; Minister for Planning and Infrastructure v SHCAG Pty Ltd [2013] NSWLEC 203 at [34] and [35]; Svedas v Council of the City of Sydney [2011] NSWLEC 215 at [91]; Aldi Stores v Newcastle City Council [2010] NSWLEC 227 at [41]; and Cavasinni Constructions Pty Ltd v Fairfield City Council [2010] NSWLEC 65; (2010) 173 LGERA 456 at [39]).
The requirement under s 38(1) of the Land and Environment Court Act 1979 that proceedings in Class 1 of the Court's jurisdiction be brought with as little formality as possible does not abrogate the fundamental obligation to afford procedural fairness (Bulga at [38]).
The general principle was stated by Preston J in Pet Carriers as follows (at [101]):
101 It may be accepted that, as a general rule, if a Commissioner or Judge hearing a Class 1 appeal is to determine the proceedings by reference to matters beyond the issues identified by the parties, then procedural fairness requires that the parties be given notice of those additional matters and accorded the opportunity to be heard upon them: see Cavasinni Constructions Pty Ltd v Fairfield City Council at [39]. This is because ordinarily, the Court determines the proceedings on the substantive issues joined between the parties: Segal v Waverley Council [2005] NSWCA 310; (2005) 64 NSWLR 177 at [42], [95] and Design Power Associates Pty Ltd v Willoughby City Council [2005] NSWLEC 470; (2005) 148 LGERA 233 at [37], [38]. If, however, the Court considers that there are issues additional to those joined between the parties that need to be considered, procedural fairness requires the parties to be notified and given an opportunity to be heard in relation to the additional matters.
In Svedas, the Court said that (at [92]):
92 While the Commissioner was not bound to determine the proceedings solely by reference to the issues tendered by the parties, if her determination was to be made by reference to matters beyond the issues identified or argued by the parties, procedural fairness dictated that the parties be given notice of these additional matters and afforded the opportunity to be heard upon them (Cavasinni Constructions at [39] and SZBEL at [35]).
In SHCAG Pain J emphasised that (at [35]):
35 ... I agree with Boral's submission that while statements of facts and contentions, and the replies thereto, do not restrict the material that it was properly open to the Commissioners to consider, a party is entitled to conduct its case on the basis that statements of facts and contentions and replies identify the critical issues or factors on which a decision will turn in the absence of any indication that another issue is relevant to the Commissioners' consideration. There would be a denial of procedural fairness if the Court did not put a party on notice that any additional issues beyond the statement of facts and contentions are regarded by the Court as matters of importance and may be matters on which the decision could turn. That is the thrust of the finding in Hussein by Branson J referred to in par 33.
And in Bulga the Court of Appeal opined that (at [40] and [41]):
40 There will be procedural unfairness where information is used by a decision maker in a way that could not reasonably be expected by one party and that party is not given an opportunity to respond to that use: see Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22; 206 CLR 57 at [142] per McHugh J and Muin v Refugee Review Tribunal [2002] HCA 30; 190 ALR 601 at [128]-[134] per McHugh J.
41 Another aspect of procedural fairness was argued in the present case, namely, that where a court determines a matter on a basis that was not in issue or argued in the proceedings, there will have been a denial of procedural fairness: see Stead v State Government Insurance Commission [1986] HCA 54; 161 CLR 141. This is a basic requirement of a fair trial. See also Re Minister for Immigration and Multicultural Affairs; Ex parte Miah in the context of administrative decision-making.
In the present case, the Statement of Facts and Contentions filed on behalf of the council gave the following reason why the DA should be refused:
4) Building Amenity
The location of habitable spaces above a seven car garage is unfavourable because of the likely level of noise being transmitted from the regular vehicle movements from the garage below. (This will necessitate building upgrades and owners consent has not been provided.)
This was repeated almost verbatim in section 5 of the Statement of Facts and Contentions, "Nature and Extent of Each Environmental Impact" under "Internal amenity".
The issue of noise was discussed by the joint experts in their Joint Report, under "Contention 4 - Building Amenity":
The location of habitable spaces above a seven car garage is unfavourable because of the likely level of noise being transmitted from the regular vehicle movements from the garage below (This will necessitate building upgrades and owners consent has not been provided)
18. MG disagrees that the location of the studio above the garage will create unfavourable conditions because of noise transmission. In the first instance it is a domestic garage which is likely to be used in normal manner. This means that the level of potential noise generation will be intermittent, minor and infrequent between 10.00pm and below, which is likely to suppress noise. If anything further is sought it should be able to be addressed by floor coverings. It is not unprecedented for residential accommodation to occur over a garage.
19. ST says that internal and external upgrading works are most likely necessary to the unit to ensure that it can achieve a suitable internal amenity for use as a residential (or habitable) unit and complies with the relevant provisions of the Building Code of Australia. This may or may not encompass but not be limited to: acoustic treatment, fire resistance, structural strength and floor to ceiling heights. Concerns are noted in the submission titled 'Building Code of Australia issues' prepared by Michael Wynn and Associates P/L and dated 9 November 2011.
A note written by the Commissioner recorded that during the onsite component of the hearing, one objector at "2/84 Woseley Rd" was particularly concerned with:
- noise/behavioural problems
- noise from garage use impacting use aboveAnd an acoustics report dated 8 November 2011 from Atkins Acoustics, commissioned by the Owners Corporation, concluded that:
The use of the garages is an existing approved component of 84-86 Wolseley Road an in our opinion the conversion of the 'studio' to a habitable space would result in unacceptable noise intrusion for occupants of the proposed 'habitable apartment'.
...
With reference to Woollahra Residential Development Control Plan 2003, the conversion of the 'studio' and 'storage area' to a habitable apartment would not comply with the acoustic privacy performance criteria referenced in items C 5.8.1, C 5.8.2 and C 5.8.4, or the intent of Section 5.8 which is to 'ensure adequate privacy for occupants and neighbours'.
In the face of this evidence, it is an unassailable fact that the issue of the impact of noise on the internal amenity of any occupant of the proposed apartment was brought to the attention of Mike George, and moreover, that there was ample evidence permitting the Commissioner to make the findings she did at [34] and [44] of her judgment.
More difficult, however, is the issue of the Commissioner's findings with respect to the external noise generated by the occupation of the apartment and the impact of this noise on Lots 1 and 2.
The vice in the Commissioner's findings is the fact that the contention was not raised in the council's Statement of Facts and Contentions and it was not, as the council admitted, an issue joined between the parties in the proceedings below. Compounding this problem is the fact that, again as the council properly and frankly conceded, the issue was not raised for discussion before the Commissioner and at no point during the hearing did the Commissioner advert to it.
The council submitted that it did not matter because Mike George was aware that external noise emanating from the proposed use of the property was an issue for the Owners Corporation and the proprietors of Lot 2 by reason of the written submissions filed by the objectors (which were not before the Court on appeal), and because there was no application by Mike George to give evidence in response to this objection or to cross-examine the residents about the issue onsite.
In my view, neither response is adequate. If the matter was not raised by either the council or the Commissioner in the proceedings, Mike George was entitled, in my view, to assume that the issue was no issue at all and that it did not need to call evidence or make any submission to meet it. The Commissioner ought to have put Mike George on notice that the external noise potentially generated by the proposed use of the property was a matter that she would take into consideration in determining the DA, in order to afford it the opportunity of commenting on it. This did not occur and in the circumstances there was a denial of procedural fairness. This ground of appeal must therefore be upheld.
However, the above finding does not result in success for Mike George on the appeal. This is because, as the Commissioner made plain in her judgment, her findings on the merits of the DA were only relevant if she incorrectly found that the consent of the Owners Corporation was required. In other words, even if Mike George had not been denied procedural fairness, any further information it could have provided would not possibly have made any difference to the decision made by the Commissioner (Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141 at 145; Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S154/2002 [2003] HCA 60; (2003) 201 ALR 437 at [28] and Bulga at [42]-[44]).
As I have found no relevant error in the Commissioner's reasons in this regard, the appeal must be dismissed.
Orders
The orders of the Court are therefore as follows:
(1)the appeal is dismissed; and
(2)the exhibits are to be returned.
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