Mulligan v Drummoyne Council

[1998] NSWLEC 88

Land and Environment Court

of New South Wales

CITATION:	Mulligan v. Drummoyne Council [1998] NSWLEC 88
PARTIES:	APPLICANT Mulligan RESPONDENT Drummoyne Council
FILE NUMBER(S):	10339 of 1997
CORAM:	Lloyd J
KEY ISSUES:	:-
LEGISLATION CITED:	Land and Environment Court Act 1979, s 56A Environmental Planning and Assessment Act 1979, s 90(1)(a)(ii)
CASES CITED:	Brimbella Pty Limited v Mosman Municipal Council (1985) 79 LGERA 367 at 368; Coles v Woollahra Municipal Council (1986) 59 LGRA 133 at 140: ; Tabag v Minister for Immigration (1982) 45 ALR 705; 70 FLR 61 l ; Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24; Randwick Municipal Council v Manousaki (1988) 66 LGRA 330 at 334; Golden Paradise Corporation v Kogarah Municipal Council (29 October 1997, unreported)
DATES OF HEARING:	24/06/98
EX TEMPORE JUDGMENT DATE :	06/24/1998
LEGAL REPRESENTATIVES:	APPLICANT A J J Thompson Russo & Co, Burwood RESPONDENT D P Wilson Abbott Tout

JUDGMENT:

HIS HONOUR: This is an appeal under s 56A of the Land and Environment Court Act 1979 against a decision of an assessor of the Court in which the assessor allowed an appeal under s 97 of the Environmental Planning and Assessment Act 1979 (Athe Act@) against the refusal by the respondent of a development application for a brothel at Five Dock.

The grounds of appeal assert that the assessor erroneously adopted a test of certainty and imminence as the sole test of the relevance of a draft local environmental plan in that case; that the assessor erroneously failed to take into account the draft local environmental plan; and that, accordingly, he was led into error in attributing to it little weight under s 90 of the Act.

It is apparent that a brothel was permissible with the consent of the respondent under the relevant environmental planning instrument. However, there was a draft amendment to the environmental planning instrument, namely Amendment No 39 to the Drummoyne Local Environment Plan 1986, which had been placed on exhibition pursuant to s 66(1)(b) of the Act and was thus a matter to be taken into consideration by the assessor under s 90(1)(a)(ii) of the Act.

The development would be prohibited if Amendment No 39 to Drummoyne Local Environmental Plan 1986 were to be made. It is appropriate that I set out part of the assessor's judgment:

AMr Adey [and I interpolate there that he was a witness for the respondent] was apparently confused during cross-examination, as to the significance of the s 69 report to the Minister, and as a result I was not convinced that such a report had already been prepared. This being the case I could not be certain that the Amendment 39 was with the Minister for signature and gazettal, as suggested in the evidence of Mr Adey. I am left to conclude that the Amendment 39 is not >certain and imminent=, and I have given this instrument little weight under s 90 of the Environmental Planning and Assessment Act 1979.@

The reference to >certain and imminent= appears to be a reference to a submission made on behalf of the respondent at the hearing that the making of Amendment No 39 was >certain and imminent= at .

There is a number of principles that apply when considering an appeal under s 56A of the Land and Environment Court Act, being an appeal which is limited to a question of law. Importantly, it is accepted that it is undesirable in an appeal from a lay tribunal where the appeal court is confined to a question of law, that it should examine too narrowly the words used in the decision, at least unless these words are central to the decision: see Brimbella Pty Limited v Mosman Municipal Council (1985) 79 LGERA 367 at 368 per Priestly JA with whom Kirby P and McHugh JA agreed. This principle has been consistently followed and applied in this court.

Mr D P Wilson, who appears for the appellant (Athe council@), submits that the assessor applied the wrong test in attributing the weight to be given to the draft local environmental plan, and he relies in particular on the use of the words >certain and imminent= in the assessor's judgment. It seems to me that this may be using a >fine-tooth comb= approach to the assessor's judgment. I am prepared to infer, however, that if the assessor had decided that the making of the draft instrument was certain and imminent, then he would have given the draft instrument more weight.

It seems to me from a fair reading of the passage of the judgment quoted above that the assessor was simply rejecting a submission made on behalf of the council that Amendment No 39 is certain and imminent; and he then simply gave the draft instrument little weight in the context of the other heads of consideration.

The mis-attribution of weight to be given to portions of the evidence does not necessarily amount to an error or law: see, in particular, Ladhams v State Planning Authority (1982) 52 LGRA 32 at 35, per Wells J (with whom King CJ agreed). This principle has been followed and applied in this court by Stein J in Coles v Woollahra Municipal Council (1986) 59 LGRA 133 at 140:

"I will come now to the grounds of appeal relied on insofar as it is alleged that the decision is against the weight of the evidence (when properly evaluated and balanced) or that the weight to be attached to portions of the evidence, particularly the fencing code and facades policy has been misapplied. Carefully considering the evidence before the assessor and her reasons for decision I am unable to conclude that the grounds alleged are made out. Additionally, I must say that I have reservations in concluding that the complaints made by Mr Schofield could amount to errors of law and I have in mind what is said by Wells J in Ladhams v State Planning Authority ÿ"

In Tabag v Minister for Immigration (1982) 45 ALR 705; 70 FLR 61 in the Full Court of the Federal Court, Keely J said (at 715-717) that the weight to be given to a relevant consideration is a matter for the tribunal of fact and not for the court limited to an appeal on a question of law. If insufficient weight is given to an important relevant consideration that is not a question of law.

In the same case Jenkinson J said (at 727) if a mis-attribution of relative weight is given to a relevant consideration, that does not necessarily involve an error or law: it is only an error of law if it infects the decision to an extent that it is one to which on the facts found no reasonable mind could have come.

Similarly in Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 Mason J (at 41) said:

"It follows that, in the absence of any statutory indication of the weight to be given to various considerations, it is generally for the decision-maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the statutory power."

Mason J goes on to say, however, that the >manifestly unreasonable= ground may exist if it can be demonstrated that the weight given to a decision amounts to a decision which is so unreasonable that no reasonable person could have come to it. Mr Wilson does not rely on manifest unreasonableness as a basis for impugning the assessor=s decision.

The decision in Tabag was approved by Clarke JA in Randwick Municipal Council v Manousaki (1988) 66 LGRA 330 at 334. Clarke JA also said (at 335):

"There was no statutory or other obligation upon the assessor to deal with each of the matters listed in s 90(1) of the Planning Act. He was invested with the power of determining which of the factors mentioned in that subsection were relevant to the appeal being heard by him and he was also entitled to accord to those which he found relevant such weight as he concluded was appropriate."

As I have said, in attempting to avoid a >fine-tooth comb= approach to the reasons of the assessor, I am left with the impression that the assessor's reference to the words >certain and imminent= are merely a rejection of a submission by the solicitor for the Council, that the Amendment No 39 to the relevant planning instrument is >certain and imminent=. I infer that if the assessor had been satisfied to the contrary he would have given that draft instrument more weight. I do not think that any error of law is demonstrated in the assessor's reasons. I should add that this conclusion is consistent with that of Sheahan J in Golden Paradise Corporation v Kogarah Municipal Council (29 October 1997, unreported) in which a similar argument was raised and rejected (in particular at p 8 of the judgment).

For the abovementioned reasons the appeal will be dismissed with costs.