Norsmith Nominees Pty Limited v Woollahra Municipal Council
[1989] NSWLEC 165
•03/07/1989
Land and Environment Court
of New South Wales
CITATION: Norsmith Nominees Pty Limited v Woollahra Municipal Council & Anor [1989] NSWLEC 165 PARTIES: APPLICANT
Norsmith Nominees Pty LimitedRESPONDENT
Woollahra Municipal Council & AnorFILE NUMBER(S): 40189 of 1988 CORAM: Stein J KEY ISSUES: :- LEGISLATION CITED: Environmental Planning and Assessment Act CASES CITED: Sandwith v. Kogarah Municipal Council;
Associated Provisional Picture House v. Wednesbury Corp. (1948) 1 KB 223;
Jones v. Dunkel ((1958-59) 101 CLR 298;
North Sydney Municipal Council v. Parlby Land and Environment Court, Unreported 13 November 1986).DATES OF HEARING: DATE OF JUDGMENT:
03/07/1989LEGAL REPRESENTATIVES:
JUDGMENT:
HIS HONOUR: The applicant, Norsmith Nominees Pty. Limited, is the owner of 19 Coolong Road, Vaucluse. The occupants of the property are the Earl and Countess of Portarlington. The Woollahra Municipal Council is the firstnamed respondent and the second named respondent Garrick Michael Hawkins is the registered proprietor of 21 Coolong Road, which adjoins the property of the applicant. On 15 February 1988 the Building and Development Committee, under delegation from the Council, granted development consent to the second respondent for the erection of a new dwelling house at 21 Coolong Road subject to certain conditions. On 1 August 1988 the Council modified the consent in certain respects and in particular deleted all reference to the swimming pool in the original consent. On the same day the Council issued a building permit.
The applicant seeks declarations that the development consent and building approval are void and, as a consequence, an injunction restraining the second named respondent from carrying out any development pursuant to the consent and approval.
The development application for the demolition of the existing residence on the land at 21 Coolong Road and the erection of what is described in the architect's supporting letter as a "luxury residence befitting its location" was lodged on 17 July 1987. The proposal is to erect a three level dwelling house with a games room, guest room, sauna, gymnasium, staff accommodation, kitchen, library, living room, breakfast, dining and family rooms, four bedrooms, all with en suite, underground parking for 9 cars, a tennis court, a squash court, swimming pool and boat house. The site runs from Coolong Road to the waters of Sydney Harbour. Upon receipt, the application was considered by the building surveyor's department of the Council whose officers made written reports. Mr. Sonny Ooi, a planner and manager of the Council's development control unit, inspected the land and environs and assessed the application. He submitted a report to the Building and Development Committee of Council recommending the granting of devel
opment approval subject to conditions.
In his seven page report of 24 November 1987 Mr. Ooi, inter alia, noted the apparent exceedance of the floor space requirement of Council's Policy; summarised the objection of the owner of No. 19 (the applicant); summarised the concerns of the Building Department; dealt with the statutory controls including the then draft eastern zone Local Environmental Plan, (including the proposed maximum height control of 9.5m); and dealt with certain design issues.
The Building and Development Committee met on 7 December 1987 to consider the application but resolved to defer consideration at the request of the applicant (for consent) and to obtain a further report.
By notice published in the Government Gazette of 15 January 1988, Woollahra Local Environmental Plan No. 27 was made. This contained clauses 15 and 16 dealing respectively with height limitation, (in the case of the subject land 9.5m), and the foreshore building line in respect of any land fronting Port Jackson, (in this case 12m from the mean high water mark).
On 25 January 1988 the architects for the second respondent, (Andre Porebski & Associates), submitted amended architectural drawings which, amongst other things, increased the amount of landscaping partly by a reduction of 2 car parking spaces and redesigned the pool and boatshed.
Some time before 5 February 1988 Mr. Ooi advised the architects that because of the gazettal of the draft plan it would be necessary for the developer to lodge an objection under State Environmental Planning Policy No. 1 (SEPP 1) because the height of the proposed building exceeded the maximum height of 9.5m set forth in cl.15 of the Local Environmental Plan.
By letter dated 5 February 1988 the architects submitted to the Council an objection purporting to be under SEPP 1. The Council planner, Mr. Ooi, compiled a second report to place before the Building and Development Committee of the Council on 15 February 1988. This report attached his earlier report of November 1987 and noted the gazettal of the LEP on 15 January 1988. He referred to the fact that the proposal contravened the statutory height limit required by the LEP. Mr. Ooi stated that if Council favoured the proposal it would have to support the SEPP 1 objection lodged by the applicant. Mr. Ooi opined that the amended plans lodged had improved the proposal and met the concerns of the building department. After canvassing the treatment of the area between the house and the foreshore, he dealt with the SEPP 1 objection recommending that Council support the objection. He again recommended that conditional consent be given.
On 15 February 1988 the Building and Development Committee, acting for the Council, resolved to support the SEPP 1 objection and grant development consent to the application subject to conditions.
On 23 May 1988 the architects submitted further plans to the Council and applied for s.102 modification of the consent to accord with the changed plans.
On 1 August 1988 the Council modified the consent in accordance with the amended plans and, relevantly, deleted the swimming pool from the consent. On the same day it issued a building permit.
The claims of the applicant are:
1. The consent is invalid because it is in breach of cl.16 of the Woollahra Local Environmental Plan No. 27 in that part of the proposed development is to be erected between the 12m foreshore building line and the waters of Port Jackson.
2. The consent is invalid because the Council failed to properly consider whether the development was in breach of the maximum floor space ratio permitted under the Residential Development Control Plan adopted by the Council in February 1984.
3. The consent is invalid because the Council failed to consider or properly consider a number of s.90 of the Environmental Planning and Assessment Act heads of consideration.
4. The consent is invalid because there was no objection, or valid objection by the second respondent to the first respondent under SEPP 1 as to compliance with the 9.5m height limit imposed under cl.15 of Local Environmental Plan No. 27. As a consequence the Council's purported waiver of compliance with the height limit was beyond power.
5. Alternatively, the consent is invalid because the Council failed to consider the purpose of the height standard, whether consenting to non-compliance was consistent with the objectives of the standard and the aims of SEPP 1, and failed to consider or properly consider the effect of non-compliance on a number of specific matters set forth in Council's adopted Policy on SEPP 1. Further, the applicant maintains that the Council failed to consider the SEPP 1 objection with an open mind.
The foreshore building line
Relevantly cl.16 of the LEP provides as follows:-
"(1) The council may, by resolution, fix a building line (in this clause called a "foreshore building line") in respect of any land fronting Port Jackson.
....
(3) Any line shown, as at the appointed day, on the map being -
(a) a broken line with the words "Foreshore Building Line" marked in black letters;
(b) a broken black line with the matter "F.S.B.L. 12m" marked in red letters, or
(c) a broken black line with the matter "F.S.B.L. 30m" marked in red letters,
shall be deemed to be a foreshore building line fixed in pursuance of the provisions of this clause.
.....
(5) Except in accordance with a development consent referred to in subclause (7), a building shall not be erected between a foreshore building line referred to in subclause (3)(b) and the mean high water mark of the waters of Port Jackson.
.....
(7) The council may, after having made an assessment of the probable aesthetic appearance in relation to the foreshore of the proposed structure, consent to the erection of any of the following structures between a foreshore building line and the waters of Port Jackson -
(a) baths (swimming pools) and ancillary buildings;
....
(e) structures or works below or at the surface of the ground."
It is agreed that the foreshore building line in question is 12m. Further, it is conceded by the respondents that the proposal provides for the erection of part of a "building" between the foreshore building line and the mean high water mark of the waters of Port Jackson. In particular, a portion of an area shown on the plans for a bar, change rooms and sauna. The respondents, however, rely on the exception in subclause (7) and maintain that consent may be given by the Council to the building or structure, "after having made an assessment of the probable aesthetic appearance in relation to the foreshore" under subclause (a), as an ancilliary building to the swimming pool and/or pursuant to subclause (e), as a structure or work below or at the surface of the ground.
Unfortunately for the respondents I cannot see how subclause (7)(a) can be availed in the circumstance of the subsequent deletion by the Council of the swimming pool, by the amendment of the consent on 1 August 1988 pursuant to s.102 of the Act. This deletion was accepted by the second respondent and by virtue of s.102(4) the original consent shall be as modified. It follows that the development consent of 15 February 1988 does not include the swimming pool. As a consequence subclause (7)(a) of cl.16 cannot be availed of by the respondents since there is no swimming pool in the consent to which ancilliary buildings can attach or relate.
But can the situation be brought within the exception in subparagraph (e)? It is the submission of Sir Maurice Byers, Q.C., on behalf of the applicant, that the structure or work is not below or at the surface of the ground. The respondents, on the other hand, contend that the structures are below or at the surface. Because of the physical nature of the proposal it is not an easy task to answer this factual issue. The bar/change room area is contained under a manmade terrace level. A portion of its front or vertical elevation is exposed and contains an entry door. This aspect is visible from the foreshore and from the water.
The question of whether a structure is below the surface of the ground was considered by Bignold J. in Sandwith v. Kogarah Municipal Council (Land and Environment Court, Unreported 8 February 1985). The case bears some striking similarities to the instant one. The planning scheme clause there in question is almost identical to the one with which we are concerned. The structures, (leaving the swimming pool to one side), were "retaining walls/landscaping structures". Bignold J. held that the "surface of the ground" did not mean the natural or existing ground surface where there were manmade ground levels which varied from the natural state or condition of the ground. Dealing with the retaining walls/landscaping structures His Honour said:-
"But are they "structures below the surface of the ground"? By virtue of their function they have created a series of terraces on sections of the land in the manner I have earlier described. They have by their function altered the surface of the ground by creating a series of surfaces at different levels. In my opinion by virtue of their function and their appearance they can properly be regarded as part of the land terraces. To the extent that each retaining wall is slightly higher than the level of the ground which it retains the excess is so slight as to be justifiably ignored by the application of the de minimis principle. Likewise to the extent (the width of a railway sleeper i.e. approximately 30cm) that each retaining wall actually rests on ground immediately below the level of the ground which each wall retains I am of the opinion that the de minimis principle should be applied. To regard the retaining walls as separate entities from the land terraces which those walls create and retain is far too art
ificial to seriously countenance.
Accordingly on the facts of this case I am prepared to find, and I do so, that the retaining walls/landscaping structures are "structures below the surface of the ground" within the meaning of cl.42(2)."
A difference between cl. 42 of the Kogarah plan and the subject clause is the addition of the words "or at" so that it reads "below or at the surface". An important factual difference from Sandwith is that the structures are not merely retaining walls or landscaping but contain within them a room providing amenities - a bar, change-room and sauna. The entry is set into the vertical face of the surface. The respondents submit that the "surface of the ground" in the subclause includes vertical as well as horizontal surfaces. I accept this submission which is consistent with Sandwith and accords, if I may say so, with common sense.
It follows that the structure offending the foreshore building line requirement of cl.16 is below the terrace created above it and at, or behind, (and thereby below) the vertical face of the ground level facing the harbour. I find that the structure is therefore below or at the surface of the ground. The fact that the structure encloses an area to be used as a bar and changing room does not, in my opinion, disqualify it from coming within subclause (7)(e). Nor also is it necessarily outside of the clause if it has some visible opening at the surface. In my opinion it does not have to be 'buried' as submitted by the applicant. The Council may therefore, "after having made an assessment of the probable aesthetic appearance in relation to the foreshore of the proposed structure", consent to the structure or work in question.
I do not understand it to be submitted that the Council did not make the assessment required by the introductory words of subclause (7). Certainly there was material before it on 15 February 1988 which would permit it to make the necessary assessment of the probable aesthetic appearance of the structure in relation to the foreshore. Clearly, there is no evidence that the assessment was not made. That clause 16(7) was not specifically mentioned in Mr. Ooi's report does not lead to a conclusion that the matter was not considered. His first report referred to the relevant statutory control, discussed the issue and stated that the proposal complied with the 12m foreshore building line. It follows from the above discussion that I do not find there to have been a breach of clause 16 of the LEP.
The floor space ratio
The next issue concerns the exceedance of the maximum floor space ratio under the Council's Residential Development Control Plan (DCP). I think it is fair to say that this attack was not pressed on behalf of the applicant. The reason for this is understandable. While a DCP made under s.72 of the Act is a specific item for consideration under s.90(1)(a)(iv), it does not have the same statutory force as a local environmental plan or state environmental planning policy. A DCP does not impose a statutory control and may be departed from without the necessity to seek a waiver of a standard under SEPP 1. The weight to be given to a requirement of a DCP is less than a requirement or standard in an environmental planning instrument, which a development control plan is not. It is still of course a matter for consideration. However, the evidence does not permit me to find that the Council failed to properly consider whether the development was in breach of the maximum floor space ratio in the DCP.
The material before Council on 15 February 1988 plainly revealed that on assessment there was an appreciable exceedance of the floor space ratio. Mr. Ooi's report of 24 November 1987 set out extensive calculations and discussed the reasons why, in his opinion, Council should not refuse the application because of the exceedance of the floor space requirement in the DCP. Essentially, his advice was that the control was aimed primarily at the visual bulk of the building and the exceedance of floor space occurred mainly because of large underground areas - car parking, squash court, plant and store rooms etc. These did not add to the visual bulk of the proposal. In my opinion this challenge to the consent must fail.
The s.90 considerations
The next issue is the allegation that the Council failed to consider or properly consider a number of s.90 heads of consideration, in particular subparas. (c), (d), (e), (h) and (o) and also, and more specifically, failed to consider the effect of the development on views of neighbours and the effect of the development when viewed from the water and elsewhere in the neighbourhood. Reliance is placed (by all parties) on Parramatta City Council v. Hale ((1982) 47 LGRA 319 (Court of Appeal)), in particular the Judgment of the President. Sir Maurice Byers submits that the Council failed to exercise its statutory warrant under s.90 of the Act. The respondents maintain that the evidence does not prove that the Council failed to take any relevant consideration into account and it was open to the Council to grant consent. The respondents emphasise that the ultimate onus of proving a breach of the Act is on the applicant and submit that it has not been discharged.
In considering this issue it is important to examine just what material was before the Committee of Council on 15 February 1988. Firstly, each member had been provided with copies of Mr. Ooi's two reports which were appended to the business papers distributed prior to the meeting. At the meeting the Council file was available and included the two sets of plans and drawings; a detailed objection including shadow diagrams lodged with Council by architects on behalf of the applicant; all Council officers' reports; a survey; 2 photographs and the SEPP 1 objection. Further, a scale model of the proposal was available.
Mr. Ooi says that he attended the meeting and explained the proposal to the Committee. He discussed the impact of the development on adjoining owners and the impact on the amenity of the neighbourhood. Mr. Ooi says that he referred to "the main issues" - views, privacy, height, the area between the high water mark and the foreshore building line, as well as the amended plans and the extent to which they satisfied his concerns. He says he explained the SEPP 1 objection to the height control and while he could not specifically recall questions, he believes there were some on overshadowing which he addressed. No other evidence is available as to what happened at the meeting. None of the Aldermen on the Committee were called to give evidence, nor any other person in attendance other than Mr. Ooi.
It is important to note that the applicant does not submit that the decision reached to grant consent is manifestly or grossly unreasonable in the Wednesbury sense (Associated Provisional Picture House v. Wednesbury Corp. (1948) 1 KB 223). Rather it is the submission on behalf of the applicant that the Council Committee failed to take account of the matters required to be considered under s.90 of the Act. Indeed, it is obvious from the evidence that the conduct of the Council Committee in coming to the decision to grant consent could not be properly categorised as manifestly unreasonable.
Problems of proof are often faced by applicants alleging a failure by a collegiate body to consider certain matters. How is it to be proved? It is usually relatively straightforward to place before the Court all of the material which was before the decision making body. It is a more difficult proposition to get 'inside' the collegiate mind and thinking process. These difficulties, along with the question of onus of proof, were discussed by the Court of Appeal in Hale's case. Street C.J. (at p.335) said:-
"All of these three grounds of invalidity have three points in common. In the first place, in each of them proof of the invalidity rests upon the challenger. In the second place, none will lead to invalidity unless it was a material error such as to justify the intervention of the court; it need not be shown to be of critical or decisive significance in the council's decision; on the other hand de minimis non curat lex. In the third place the reference in each to "the council" is to the council as a group; it is the council's collective state of mind, as found by the court, which will be of critical significance." (My emphasis added)
Moffitt P. (at pp.339-340, p.345 and p.346) stated:-
"Particular considerations, being those of proof, arise, however, when a party in proceedings under s.123 endeavours to prove, by proper evidence, a negative, namely that the council in passing the consent resolution did not take into consideration some relevant s.90(1) matter. It may be impossible to do so in the face of evidence that the relevant matters were before the council on an earlier occasion or that, when it passed the resolution giving consent, the council had before it a report of its officers which dealt with the relevant matters, or that the relevant matters were uncomplicated and so within the general knowledge of the council members as such. This may be so even although the resolution was passed without discussion and there was no evidence whether the council members ever read or considered the terms of the report. However, what the council resolved including the terms of its resolution giving consent and how it went about doing so, may provide or support an inference that in passing the reso
lution a relevant matter was not taken into consideration.
.....
Where it is a collegiate body which makes the s.91 determination, s.90 requires that the collegiate mind in granting its approval shall have considered the s.90 matters. 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. The responsibility to make the consent determination is given to a responsible authority, which will normally be a council democratically elected. The court exercising jurisdiction under s.123 does not sit on appeal from its determination. 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 dr
awn.
.....
Where a collegiate body exercises the power of the consent authority under s.91 and does so by its resolution, as the appellant council did by the resolution of its aldermen in general meeting on 16th October, 1981, the question in a case under s.123 is whether that collegiate body took each of the relevant s.90(1) matters into consideration in passing that consent resolution. It is the state of mind of that body in passing that resolution which is in question."
(Again, emphasis added).
The President continued his Judgment paying recognition to the difficulties of proof inherent in a decision of a collegiate body but again stressing that it is the collegiate mind in passing the resolution which is relevant.
On an analysis of all of the material before the Building and Development Committee on 15 February 1988, aided by the address and explanations provided by Mr. Ooi to the members, I cannot be satisfied that the Committee failed to consider or adequately consider any relevant s.90 head of consideration. The Committee was entitled to rely on the inquiries, advice and recommendations of its officers. In doing so I cannot infer from the sum of the material before the Committee of Council, (and now before the Court), that it was unaware of any relevant head of consideration or failed to take them into consideration. As Moffitt P. said:-
"By adopting the recommendations it takes such relevant matters into consideration. The simple adoption even without debate, of a recommendation made by the council's officers in a report which refers to the relevant s.90(1) matters, would without more, leave no room for an inference that the collegiate body had not taken such matters into consideration."
The applicant seeks to rely on Jones v. Dunkel ((1958-59) 101 CLR 298). It is said that an inference may be drawn from the failure of the Council to call any members of the aldermanic Committee. The inference being that their evidence would not have helped the Council case. I can find no room for the application of the rule in Jones v. Dunkel to the present case. Firstly, it must be observed that Mr. Ooi, who was present at the meeting to advise the Committee, gave evidence before the Court. In his evidence in chief Mr. Ooi recounted his recollection of what took place. He was not cross-examined on the matter by counsel for the applicant. Windeyer J. (at p.322) stated that no inference can be drawn from a defendant's silence until facts be proved requiring an answer. The Council submits that there was no facts proved which required an aldermanic response. I tend to accept this submission. But the most telling reason why Jones v. Dunkel is of no assistance to the applicant is the statement by Menzies J. (at p.
313) that the failure of a party to give evidence "could not be used to fill gaps or to convert suspicion into inference". In my assessment the evidence does not extend even to suspicion so no inference may be drawn that the evidence of the members of the Committee would not have helped the Council case.
No valid SEPP 1 objection
The next submission of the applicant is that the letter which purported to constitute the SEPP 1 objection was not valid. The SEPP 1 objection is contained in a letter to the Council from Andre Porebski & Associates dated 5 February 1988. It states in full:-
"RE: D.A. 87/191.
Premises at 21 Coolong Road, Vaucluse.
-------------------------------------------
We refer to the above Development Application, the approval of which is currently being considered by your Council.
Pursuant to Clause 6 of S.E.P.P. No. 1 we formally object to height restriction as imposed by the Woollahra Council Environmental Plan No. 27.
The maximum height under W.C.E.P. is 9.5M. The height of the proposed building ranges from about 8.75M to about 12M as a result of the sloping nature of the site. The overall height of the proposed building is 600mm lower than the existing building, however due to the site conditions the roof at the northern end of the building exceeds the height limit by some 2.5M.
As a result there is some increase in the overshadowing of the property at No. 19 Coolong Road. However this only occurs in the late part of the afternoon.
We trust that your Council will support our objection." It is the submission on behalf of the applicant that the objection does not address any material consideration of the underlying purpose of the development standard. It fails to allege that compliance with the standard is unnecessary or unreasonable. Further, it omits to set forth a proper statement of the grounds upon which compliance with the standard is said to be unreasonable or unnecessary. The respondents, however, submit that the form of objection is valid and sufficient. The grounds of objection are specified in the letter and cl.6 of the Policy has been satisfied. The Council further submits that in the circumstance of the letter being accepted, treated and dealt with by Council as a valid objection, it cannot now be contended that the objection is defective, (Hornsby Shire Council v. Devery (1965) 12 LGRA 34).
What is required of an objection under State Environmental Planning Policy No. 1? No form is prescribed so one must go to the Policy to determine the matter. Clause 6 provides the key. In my opinion it requires a written objection by the developer which refers to the development standard, (but for which the development could be carried out), and specifies the grounds upon which it is said that compliance with the standard is unreasonable or unnecessary. There is no requirement in cl.6 or elsewhere in the policy that the objection address the underlying purpose of the standard in question. Nor do I think that an objection needs to state expressly that compliance with the standard is unreasonable and unnecessary.
Examining the letter of 5 February 1988 I note that it refers to the development application and purports to be an objection under cl.6 of SEPP 1 to the height restriction in the LEP. It then briefly sets out the grounds of the objection. It is clearly implied into the objection, in my opinion, that the developer is submitting to the Council that compliance with the standard is unreasonable or unnecessary in the circumstances set forth in the objection. That the grounds of the objection are not argued and set forth in detail and at length does not detract from its validity as an objection which was capable of being considered by the Council. Further, that the grounds of objection closely follow comments made by the Council Planner, Mr. Ooi, in his reports does not lead to a conclusion that the document is inadequate to constitute an objection. The grounds are sufficiently stated to be considered by the Council.
In any event, in my opinion, the Council is not bound by the grounds stated in the objection and may clearly go outside them in considering whether to uphold or reject an objection. I find that the form of the objection is valid and sufficient. Having held it is a sufficient and valid objection, it is strictly unnecessary for me to consider Mr. Wilson's submission on behalf of the Council based on Devery. However, I would proffer the opinion that the principle in Devery has no application to this situation. Why should the applicant be estopped from making an allegation of invalidity of the objection merely because the Council had dealt with the objection. I can appreciate how the Council could be estopped, (if, for example, this was an appeal against a Council decision to refuse consent), from alleging that the SEPP 1 objection if accepted and dealt with was invalid. But that is quite a different matter from an unassociated third party bringing a proceeding under s.123 of the EPA Act alleging a breach of the
Act. I cannot see that any such principle can prevent the applicant alleging invalidity merely because the Council dealt with and determined the objection. Devery deals with a quite different factual situation.
Consideration of the SEPP 1 objection
The last submission concerns the question of whether the Council, in considering the SEPP 1 objection, failed to consider the purpose of the height standard, whether non-compliance was consistent with the objectives of the standard and the aims of SEPP 1, and whether it failed to consider (or properly consider) a number of specific items set forth in its adopted policy on SEPP 1. Additionally, the applicant alleges that the Council failed to consider the objection with an open mind.
I will deal with the last mentioned matter first. The submission is based on the premise that Mr. Ooi had judged that the proposal should be approved in his November 1987 report. After the LEP was made in January 1988 it was he who suggested to the architects for the developer that a SEPP 1 objection to the height control be lodged. Mr. Ooi supported the objection and recommended Council support for the objection and approval of the application. How it can be said that these facts amount to a pre-judgment of the application on the part of the Building and Development Committee escapes my understanding. It cannot be said, even assuming a closed mind by Mr. Ooi, (which I do not accept), that he somehow infected the members of the Committee. In my opinion a closed mind by the Council planner cannot be imputed to the Committee members in the absence of any evidence that they also failed to consider the application with an open mind. In any event, I am unable to see anything sinister or improper in the planner adv
ising the developer to lodge a SEPP 1 objection.
On 20 January 1986 the Council adopted a policy for the application of SEPP 1. The policy document contains a schedule which purports to set out the intention of development standards in the then current development control plans, codes and planning instruments. The policy was adopted before LEP 27 was made in January 1988. Nonetheless, the schedule contains the following "intentions" of height and envelope standards:-
"a) To preserve and, where possible, enhance existing views of the harbour, ridgelines, major public and private open spaces and distant views of the City skyline.
b) To ensure compatibility with the adjoining neighbourhood.
c) To protect the amenity of views from the harbour.
d) To safeguard visual privacy of interior and exterior living areas of dwellings.
e) To maintain or improve existing sunlight access to interior living rooms and exterior open space areas and not exacerbate any overshadowing.
f) To provide incentive for redevelopment in certain areas."
When one looks at each of the statements of intention I cannot conclude or infer that, on the material before Council on 15 February 1988, it failed to consider any of them. Rather, it seems to me that the Committee had before it information which would enable it to consider each of the stated intentions or purposes of the standard. In my opinion it was open to the Council to conclude that the underlying object or purpose of the standard is satisfied. Indeed, this approach seems inherent in the recommendation and advice of its planner Mr. Ooi in his second report. However, on past occasions the Court has been at pains to stress that it will not exhaustively define the scope of the dispensing power under the policy and in particular the breadth of the words "circumstances of the case". Approaches other than satisfaction of the purpose of the standard are possible (see North Sydney Municipal Council v. Parlby Land and Environment Court, Unreported 13 November 1986).
In my opinion the whole of the material placed before the Council Committee provided ample base for a conclusion that the objection was well founded and that the granting of consent was consistent with the aims of the Policy. There are a number of circumstances of the case which could lead to an opinion that compliance with the standard is unreasonable if not unnecessary. These include the fact that loss of views was not a major issue; the site was sloping in nature; the ridge line of the new home was lower than the existing house; and the statutory height control was a new one and the application was made before the LEP was made. Additionally, the issue of overshadowing was before the Committee, as were other s.90 heads relevant to the consideration of the objection. It appears to me that it has not been proved that the Council Committee failed to consider the underlying purposes of the standard or that consenting to non-compliance was consistent with the aims of the policy set out in cl.3. That they did not
expressly say so is neither surprising nor necessary. The conclusion may be clearly inferred from the material under consideration and the decision.
The discretion in SEPP 1 is broad and intended to provide flexibility in the application of planning controls in appropriate situations covered by the Policy. I cannot conclude on the evidence that the discretion was improperly exercised by the Council Committee or that it failed to consider or properly consider any relevant matter. I am not convinced that the Council failed to properly consider the SEPP 1 objection. In the circumstances the applicant's claim for declaratory relief must fail.
In arriving at this conclusion I must stress that the Court is making no judgment on the merits of the proposed development. This is not an appeal against refusal of development consent where the Court must address the merits. I am only concerned with the legal challenges made to the validity of the consent. The feelings of the occupants of 19 Coolong Road are perfectly understandable but nevertheless are irrelevant to the determination of a legal challenge to the validity of the consent.
The application is dismissed with costs. The exhibits may be returned.
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