Northern Beaches Council v Tolucy Pty Ltd

[2020] NSWLEC 76

Land and Environment Court

New South Wales

Medium Neutral Citation:

Northern Beaches Council v Tolucy Pty Ltd [2020] NSWLEC 76

Hearing dates:

19, 20, 23, 24 and 25 March 2020

Date of orders:

3 August 2020

Decision date:

03 August 2020

Jurisdiction:

Class 1

Before:

Moore J

Decision:

See orders at [290]

Catchwords:

APPEAL - appeal against Commissioner’s judgment on questions of law (Grounds 1 to 4 - the bushfire grounds) - whether the Commissioner prejudged bushfire matters required to be considered by virtue of cl 27(2)(h) of State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 (the SEPP) (Ground 1) - in the alternative, whether the Commissioner failed to consider relevant matters required by cl 27(2)(h) of the SEPP (Ground 2) - whether the Commissioner denied the Council procedural fairness by accepting bushfire evidence from the Company only and not giving the Council the opportunity to be heard concerning it (Ground 3) - whether the Commissioner failed to give reasons for granting approval despite insufficient evidence on bushfire issues (Ground 4) - Ground 1 upheld rendering it unnecessary to determine Ground 2 - Ground 3 not established - Ground 4 upheld

APPEAL - appeal against Commissioner’s judgment on questions of law (Ground 5) - whether the Commissioner failed to address relevant mandated matters concerning (i) access to facilities and services vis appropriate pedestrian and public transport facilities and (ii) failed to consider relevant contextual building design matters - (i) dealt with through subsequent ground - complaint in (ii) not established - Ground 5 rejected

APPEAL - appeal against Commissioner’s judgment on questions of law (Ground 6) - whether the Commissioner erred in concluding he could be satisfied, on the basis of written evidence, that required services would be available to residents of the self-care units - consideration of what might constitute satisfactory written evidence - no error established - Ground 6 rejected

APPEAL - appeal against Commissioner’s judgment on questions of law (Ground 7) - whether the Commissioner erred in concluding that required minibuses would be available from the time the first occupants of the development took up residence - meaning of words in a condition of consent that buses be available for “the life of the development” – “life of the development” can only commence with issuing of an occupation certificate - residents not permitted to occupy prior to such a certificate - buses therefore required to be available from time first residents take up occupation - Ground 7 rejected

APPEAL - appeal against Commissioner’s judgment on questions of law (Ground 8) - whether the Commissioner adequately considered matters of character and contextual fit of the proposed development in its locality - whether the Commissioner inappropriately relied on the Site Compatibility Certificate in lieu of undertaking the assessment mandated by s 4.15 of the Environmental Planning and Assessment Act 1979 - no error disclosed - Ground 8 rejected

APPEAL - appeal against Commissioner’s judgment on questions of law (Ground 9) - whether the Commissioner misapplied test in cl 26 of the SEPP - Commissioner’s conclusion based on acceptance of the evidence of the Respondent’s expert town planner on the underlying objective of the clause - evidence not challenged by Council’s expert - position consistent with the formulation of the underlying objective of the clause adopted the Senior Commissioner in an earlier case - this issue not pressed by Council in submissions to the Commissioner - Ground 9 rejected

APPEAL - appeal against Commissioner’s judgment on questions of law (Ground 10) - whether the Commissioner erred in concluding that the specific provisions of cl 43 of the SEPP ousted the general provisions of cl 26 - both clauses capable of satisfaction - cl 4.6 process in Warringah Local Environmental Plan 2011 provides mechanism for seeking to avoid compliance with the general provisions - cl 26 not ousted - Ground 10 upheld

REMITTER - should the appeal be remitted or should it be dismissed - if remitted, should remitter be exclusionary - appeal should not be dismissed - appeal is against Commissioner’s decision to grant consent to proposed development - approach adopted by Preston CJ in Ballina Shire Council v Palm Lake Works Pty Ltd [2020] NSWLEC 41 appropriate to be followed and matter remitted not dismissed - finding in Ground 1 warrants exclusionary remitter

COSTS - presumption that costs follow the event - Council successful in appeal but not on the majority of grounds pleaded - costs to follow the event unless Respondent seeks to be heard to propose some alternative costs order

Legislation Cited:

Environmental Planning and Assessment Act 1979, s 4.15

Land and Environment Court Act 1979, ss 25 and 56A

State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004, cll 14, 15, 24(2), 25(7), 26(1), 27(2), 32 to 39 and 42 to 44

State Environmental Planning Policy (Seniors Living) 2004, cll 25, 27(1), 74(1) and 75

Warringah Local Environmental Plan 2011, cl 4.6

Cases Cited:

Australian Nursing Home Foundation Limited v Ku‑ring ‑gai Council [2019] NSWLEC 1205

Ballina Shire Council v Palm Lake Works Pty Ltd [2020] NSWLEC 41

Bankstown City Council v Mohamad El Dana [2009] NSWLEC 68

Baulkham Hills Shire Council v Basemount Pty Ltd (2003) 126 LGERA 339

Boral Cement Pty Ltd v SHCAG Pty Ltd [2013] NSWLEC 2013

Brimbella Pty Ltd v Mosman Municipal Council (1985) 79 LGERA 367

Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280

Council of the City of Sydney v Base Backpackers Pty Ltd (2015) 208 LGERA 342

Crighton Properties Pty Ltd v Kiama Municipal Council (2006) 146 LGERA 271

Design Power Associates Pty Ltd v Willoughby City Council (2005) 148 LGERA 233

Ex parteHebburn Ltd.; Re Kearsley Shire Council (1947) 47 SR (NSW) 416

Gary Abrams v The Council of the City of Sydney (No 4) [2019] NSWLEC 71

Gett v Tabet [2009] NSWCA 76

Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123

Housing Commission v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378

Hoy v Coffs Harbour City Council [2015] NSWLEC 132

Information Gateways Pty Ltd v Hornsby Shire Council [2005] NSWLEC 242

Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118

Manly Council v BSDI Pty Limited [2010] NSWLEC 31

Manly Council vHortis 113 LGERA 321; [2001] NSWCA 81

Maxnox Pty Ltd v Hurstville City Council (2006) 145 LGERA 373; [2006] NSWLEC 146

Mike George Planning Pty Ltd v Woollahra Municipal Council (No 3) [2014] NSWLEC 123

Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

Northern Beaches Council v Tolucy Pty Ltd [2019] NSWLEC 151

NSW Aboriginal Land Council v Minister Administering the Crown Lands Act (No 2) [2008] NSWLEC 13

Principal Healthcare Finance Pty Limited v Council of the City of Ryde [2016] NSWLEC 88

Principal Healthcare Finance Pty Ltd v Council of the City of Ryde [2016] NSWLEC 153

Seltsam v Ghales in Castle Constructions Pty Ltd v North Sydney Council (2007) 155 LGERA 52

Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247

Sze Tu v Lowe (No 2) [2015] NSWCA 91

Tanious v Georges River Council [2016] NSWLEC 142

Taylor v Owners Strata Plan 11564 (2014) 253 CLR 531

Tolucy Pty Ltd v Northern Beaches Council [2019] NSWLEC 1284

Warkworth Mining Ltd v Bulga Milbrodale Progress Association Inc (2014) 86 NSWLR 527; [2014] NSWCA 105

Wechsler v Sydney City Council (No 2) [2015] NSWLEC 35

Wentworth Securities Ltd v Jones [1980] AC 74

Zhiva Living Dural Pty Limited v Hornsby Shire Council (No 3) [2019] NSWLEC 152

Category:

Principal judgment

Parties:

Northern Beaches Council (Appellant)
Tolucy Pty Ltd (Respondent)

Representation:

Counsel:
Mr A Stafford, barrister (Appellant)
Mr T Robertson SC/Ms J Walker, barrister (Respondent)

Solicitors:
King & Wood Mallesons (Appellant)
McKees Legal Solutions (Respondent)

File Number(s):

252551 of 2019

Publication restriction:

No

 Decision under appeal 

Court or tribunal:

Land and Environment Court of New South Wales

Jurisdiction:

Class 1

Citation:

Tolucy Pty Ltd v Northern Beaches Council [2019] NSWLEC 1284

Date of Decision:

21 June 2019

Before:

Horton C

File Number(s):

398283 of 2018

TABLE OF CONTENTS

Introduction

The merit appeal hearing and decision

Introduction

The background facts

The addendum to the decision

The appeal against the Commissioner’s decision

Introduction

The orders sought in the Amended Summons commencing the appeal

Extension of time to commence this appeal

The grounds of the appeal

Relevant statutory provisions

The nature of s 56A appeals

Grounds 1 to 4 - the bushfire grounds

Introduction

The relevant elements of the Commissioner’s judgment

The Council’s position

The position advanced for the Company

Grounds 1 and 2

Ground 3

Ground 4

The Council’s response to the Company’s submissions

Consideration of Grounds 1 to 4

Grounds 1 and 2

Ground 3

Ground 4

Ground 5

Introduction

The Council’s submissions

The Company’s position

The Council’s submissions in reply

Consideration

Ground 6

Introduction

The Council’s submissions

The Company’s position

The Council’s submissions in reply

Consideration

Ground 7

Introduction

The Council’s position

The Company’s submissions

The Council’s submissions in reply

Consideration

Ground 8

Introduction

The Council’s submissions

The Company’s submissions

The Council’s submissions in reply

Consideration

Ground 9

Introduction

The Council’s position

The Company’s position

Consideration

Ground 10

Introduction

The Council’s position

The Company’s position

The Council’s oral submissions in reply

Consideration

The approach to the absence of a current Site Compatibility Certificate

Introduction

An exclusionary remitter?

The Council’s submissions

The Company’s submissions

Consideration

Costs

Orders

JUDGMENT

Introduction

1. On 28 December 2018, Tolucy Pty Ltd (the Company) lodged a development application with Northern Beaches Council (the Council) for development at 58 Laitoki Road, Terrey Hills (the site). The nature of the development sought was for two facilities - the first being a residential aged care facility (RACF) and the second being a number of independent living units (the ILU facility).

2. Such a development was not permissible on the site pursuant to the Warringah Local Environmental Plan 2011 (the LEP) but was rendered potentially permissible by the Company availing itself of the beneficial and facultative provisions of State Environmental Planning Policy for Seniors Living or People With A Disability 2004 (the SEPP). It will be necessary to turn, later, in some detail to a number of the provisions of the SEPP.

3. It is also appropriate to note that, during the period between the lodgement of the Company’s development application with the Council and the granting of consent by this Court, the application underwent a number of significant modifications, being modifications not merely to the proposed built form but also to the broader nature of the proposed operational structure for the RACF and the ILU facility. These changes will also require later consideration.

4. On 28 December 2018, the Company commenced Class 1 proceedings to appeal against the deemed refusal of its proposed development.

5. On 1 May 2019, Sydney North Planning and Assessment Panel, as the consent authority, resolved to refuse the Company's proposed development.

The merit appeal hearing and decision

Introduction

6. The substantive merit hearing of the appeal was heard by Horton C on 20 to 22 May and 24 May 2019. The hearing had been expedited because of the comparative imminence of the expiry of the Company’s Site Compatibility Certificate (the Certificate) issued pursuant to the SEPP. The terms and effect of this Certificate also require subsequent consideration.

7. On 21 June 2019, the Commissioner handed down his decision (Tolucy Pty Ltd v Northern Beaches Council [2019] NSWLEC 1284).

The background facts

8. The Commissioner summarised the relevant background facts concerning the Company’s proposed development at [4] to [13] and [15] of his decision, as follows:

1. The current site consists of one allotment legally described as Lot 368 in DP 752017, known as 58 Laitoki Road, Terrey Hills with a total site area of 19,536m2. The site is located on the north western corner of the intersection of Laitoki Road which forms the eastern boundary of the site, and Cooyong Road which forms the site’s southern boundary.

2. The site is generally a rectangular shaped allotment, with the exception of the western boundary that is splayed in deference to the meandering alignment of Neverfail Gully Creek beyond.

3. The site slopes steeply, and unevenly, from a high point at the intersection of Laitoki Road and Cooyong Road, with an overall fall of around 28m to the western boundary adjacent to Neverfail Gully Creek.

4. Neverfail Gully Creek is identified as a waterway and Riparian Lands in the Warringah Development Control Plan 2011 (WDCP).

5. The site contains areas of the Duffy’s Forest Endangered Ecological Community that is listed in Sch 2 of the Biodiversity Conservation Act 2016 as having high retention value (Ex N).

6. Both Cooyong Road and Laitoki Road are sealed roads with no line marking and a grass and gravel verge in place of a kerb and gutter.

7. The closest bus stop to the site is located on Myoora Road at Terry Hills Public School at a walking distance of around 500m-550m from the intersection of Laitoki Road and Cooyong Road. A public bus route map is shown in Exhibit L, Appendix B.

8. The Terrey Hills town centre is located on Booralie Road at a distance of around 850m to the east of the site.

9. A Site Compatibility Certificate (SCC) (Ex S, Folio 824-825) was issued by the Acting Deputy Secretary of the Department of Planning and Environment, under delegation of the Secretary, on 14 July 2017. Schedule 1 of the SCC described the use as follows:

   “To permit self-care dwelling, bed [sic] residential care facility, community facilities and ancillary services and basement carparking for seniors living at 58 Laitoki Road, Terrey Hills.”

10. Sch 2 of the SCC states the requirements imposed on determination in the following terms:

    “The final layout, building construction and onsite facilities in the proposed seniors housing development will be subject to the resolution of issues relating to:

    •   access to services and facilities via appropriate pedestrian and public transport facilities;

    •   building bulk and scale

    •   flora and fauna issues

    •   land slip issues

    •   flooding

    •   traffic; and

    •   potential contamination”

…

1. Following notification of the original development application on 26 October 2018, the Council received more than 170 submissions in response to the proposal, and a further 125 submissions were received following the notification of the amended development application on 27 April 2019.

The addendum to the decision

9. On 12 July 2019, by addendum (later set out) to his decision of 21 June 2019, the Commissioner recorded the provision of further information from the Company; made further, short findings based on it; and made orders granting the Company development consent for the proposal in the then amended form before him - making it subject to the conditions that (now) form Annexure A to his decision.

The appeal against the Commissioner’s decision

Introduction

10. The Council has appealed pursuant to s 56A of the Land and Environment Court Act 1979 (the Court Act) against the Commissioner's decision. Such appeals are limited to ones on questions of law as can be seen from the terms of the section which reads:

56A   Class 1, 2, 3 and 8 proceedings—appeals to the Court against decisions of Commissioners

(1)   A party to proceedings in Class 1, 2, 3 or 8 of the Court’s jurisdiction may appeal to the Court against an order or a decision of the Court on a question of law, being an order or a decision made by a Commissioner or Commissioners.

(2)   On the hearing of an appeal under subsection (1), the Court shall:

(a)   remit the matter to the Commissioner or Commissioners for determination by the Commissioner or Commissioners in accordance with the decision of the Court, or

(b)   make such other order in relation to the appeal as seems fit.

(3)   Notwithstanding subsection (1), an appeal shall not lie to the Court under that subsection in respect of a question of law that has been referred to, and determined by, a Judge pursuant to section 36.

11. As later set out in detail, the Council has pleaded 10 grounds in the Summons commencing its appeal. The Council proposes that this appeal ought to be upheld and the Class 1 appeal dismissed on the basis of Appeal Ground 6, being the ground concerning “reasonable access”. If this ground fails, then the Council presses nine other grounds as material errors which should have the Commissioner’s decision set aside, with the Class 1 appeal to be remitted to a differently constituted Court.

The orders sought in the Amended Summons commencing the appeal

12. The orders sought in the Amended Summons commencing the appeal were in the following terms:

1. If required notwithstanding rule 7.1(1)(a) of the Land and Environment Court Rules 2007, the time for filing of the summons commencing this appeal under UCPR rule 50.3(1)(a) is extended to 14 August 2019.

1A   Appeal allowed.

1. The 21 June 2019 decision and 12 July 2019 orders of Commissioner Horton are set aside.

2. Leave is granted to the respondent to amend the application for development consent to rely on the amended plans that were identified in Condition 1(a) of Annexure A to the decision of Comissioner Horton, being the conditions referred to in paragraph 175(3) of the 12 July 2019 addendum.

3. If the appeal is allowed on bases that include Appeal Ground 6, order that the Class 1 appeal be dismissed.

4. If the appeal is allowed on bases that do not include Appeal Ground 6, the proceedings are remitted to a Commissioner or Commissioners (other than Commissioner Horton) to be determined in accordance with the Court’s reasons for judgment.

5. The respondent is to pay the appellant’s costs of the appeal.

Extension of time to commence this appeal

13. The question of whether or not an extension of time was required to commence the appeal was heard and determined by Duggan J (Northern Beaches Council v Tolucy Pty Ltd [2019] NSWLEC 151). Her Honour granted the short extension of time required for the commencement of the appeal.

The grounds of the appeal

14. The Council has pleaded 10 separate grounds of appeal. It is appropriate to set out, in full, all the grounds of appeal raised by the Council. The grounds are in the following terms:

1. The Commissioner erred on a decision on a question of law in that he prejudged, giving rise to a reasonable apprehension of bias, the outcome of his consideration of the matters he was required to consider under subclause 27(2) of State Environmental Planning Polcy (Housing for Seniors or People with a Disability) 2004 (SEPP HSPD) by indicating that he proposed to grant consent to the proposal (decision at [174]) before he received evidence that he had found was required to undertake his consideration of the matters required by subclause 27(2) of SEPP HSPD (decision at [143], [147], [170], [171] and [174(1) and (2)]).

2. Further or in the alternative to Appeal Ground 1, if the Commissioner’s findings at [174] constituted a decision to approve the proposal on 21 June 2019, the Commissioner erred on a decision on a question of law by failing to take into account a mandatory consideration in that he made the decision to approve the proposal (decision at [174]) before he undertook his consideration of the matters required by subclause 27(2) of SEPP HSPD, because he made that decision before he received evidence that he found was required to undertake his consideration of the matters required by subclause 27(2) of SEPP HSPD (decision at [143], [147], [170], [171] and [174(1) and (2)]).

3. The Commissioner erred on a decision on a question of law in that he failed to afford procedural fairness to the respondent below because he sought further evidence from the applicant below (decision at [174(1) and (2)]), after finding that he proposed to approve the proposal anyway (decision at [174]), without affording to the respondent an opportunity to respond to that evidence.

1. The Commissioner erred on a decision on a question of law by failing to disclose reasons, adequately or at all, on a material issue in the proceedings, being why he approved the proposal notwithstanding Council’s position on contention 3A that the Court should consider the resident submissions on bushfire in the course of undertaking the task required by subsection 27(2) of SEPP HSPD and refuse to grant consent to the proposal on that basis; including because all the findings the Commissioner made on 21 June 2019 relating to bushfire were to the effect that the information before him did not fully address Council’s contention or matters of concern raised by the Commissioner (decision at [143], [147], [170] and [171]).

2. The Commissioner erred on a decision on a question of law by failing to reach, or failing to evidence the reaching of, the satisfaction required by subclause 24(2) of SEPP HSPD, which was a jurisdictional pre-requisite to the exercise of power to grant consent, in that:

   a. the Commissioner failed to address Sch 2 of the site compatibility certificate insofar as it required the final development to resolve “access to services and facilities via appropriate pedestrian and public transport facilities” (Council’s Submissions dated 22 May 2019 at [12], [42]-[51] and [138]-[139]; Statement of Facts and Contentions at [16] and Contentions 1);

   b. the Commissioner did address Sch 2 of the site compatibility certificate insofar as it required the final development to resolve bulk and scale (decision at [165] and [167] - albeit that Council did not submit that this requirement applied only if he chose to rely on the certificate);

   c.   if a requirement of the site compatibility certificate was not satisfied the effect was that the certificate did not certify that the development to which it relates was compatible with surrounding land uses and the Commissioner was not capable of reaching satisfaction as to the matter required by subclause 24(2) (Council’s Submissions dated 22 May 2019 at [47]-[51]); and

   d.   there is no evidence that the Commissioner, having addressed the matter in (b) but not (a) and having been made aware of the matter in (c), satisfied himself of the matter required by subclause 24(2).

3. The Commissioner erred on a decision on a question of law in that he misdirected himself and misapplied clause 42 of SEPP HSPD in finding (decision at [96]) that the applicant’s proposed conditions of consent (conditions 84A and 93), including public positive covenant condition, were written evidence in sufficient detail to satisfy the Court that residents of the serviced self-care housing would have reasonable access to the services required by clause 42, because:

   a.   clause 42 required the Commissioner to be satisfied when the application was determined that residents of the serviced self-care housing will have “reasonable access” to the relevant services in their homes, whereas Condition 93(g) (and through it condition 84A) largely repeated the terms of clause 42 and so left what constitutes “reasonable access” to be determined at a time after the consent is issued; and

   b.   except for the conditions of consent, there was no evidence as to the basis on which (such as how, when or how frequently) residents of the serviced self-care housing would have access in their homes to the services otherwise provided to the residential care facility on the same lot.

4. The Commissioner erred on a decision on a question of law in that he did not reach the satisfaction required by clause 44 of SEPP HSPD in respect of the bus service because it was not enough that the Commissioner was satisfied under clause 43 that the bus service will be provided to the serviced self-care housing (decision at [92] and [97]) as the Court also had to be satisfied that the bus service would be available to residents when the housing is ready for occupation.

5. The Commissioner erred on a decision on a question of law by misdirecting himself as to the task required under section 4.15 of the Environmental Planning and Assessment Act 1979 in connection with character, compatibility with the locality, neighbourhood amenity and streetscape, or so failed to apply himself to the question that the law prescribed under that section that in approving the proposal he constructively failed to exercise the jurisdiction that he was required to exercise under section 4.16 of the Environmental Planning and Assessment Act 1979, in that:

   a. the Commissioner relied on the site compatibility certificate issued under SEPP HSPD when undertaking the considerations under section 4.15 of the EP&A Act (decision at [165]), whereas subsections 4.15(1)(b), (c) and (e) required the Commissioner to make his own assessment of the likely impacts of the development in the locality, the suitability of the site for development and the public interest, and subclause 24(3)(b) of SEPP HSPD precluded a site compatibility certificate from limiting the matters to which a consent authority must otherwise have regard (if clause 24 was ever capable of having such effect);

   b. the Commissioner wrongly considered that he was only required to satisfy himself that the requirements in Sch 2 to the site compatibility certificate were satisfied if he considered himself bound by the site compatibility certificate (decision at [165] - which was not the Council’s submission), which he proceeded to do, so that he wrongly precluded himself from undertaking relevant considerations under section 4.15 of the EP&A Act or acted under dictation by abdicating those considerations to the site compatibility certificate;

   c.   the Commissioner misstated the task required of him (decision at [44] - which was not the parties’ submission) as being to grant consent if the development application complied with the relevant provisions of the Warringah Local Environmental Plan 2011;

   d. the Commissioner’s conclusions on Contention 5 were confined to satisfaction that the requirements in Sch 2 to the site compatibility statement were met (decision at [167]), satisfaction that reliance on landscaping was appropriate in the setting (decision at [169]), and satisfaction that the form and layout of the proposed development was developed with consideration of the site and that the proposed development demonstrates adequate regard was given to the design principles in Div 2 of SEPP HSPD as required by clause 32 (decision at [168]); and

   e.   the Commissioner failed to disclose reasons, adequately or at all, on why the proposal was approved having regard to the broader material contentions raised regarding character, compatibility with the locality or with the local environment, neighbourhood amenity and streetscape, which is a different question from whether the development has been developed with consideration of the site or whether adequate regard has been given to the SEPP HSPD design principles or whether reliance on landscaping was appropriate.

6. The Commissioner erred on a decision on a question of law in that he misconstrued and misapplied clause 26 of SEPP HSPD, and so misdirected himself in considering the exception submission under clause 4.6 of Warringah Local Environmental Plan 2011 (decision at [114]-[116] and [125]), because he took the underlying objective of clause 26 to be to ensure that the future residents of the development will have access to all services and facilities required by the clause that they would reasonably require (decision at [123] and [125]) which is inconsistent with the terms of clause 26 and the broader objectives of that clause.

7. The Commissioner erred on a decision on a question of law in finding that clause 26 of SEPP HSPD does not apply to serviced self-care housing (decision at [98]).

Relevant statutory provisions

15. Various provisions of the Environmental Planning and Assessment Act 1979 (the EP&A Act); the SEPP; and the LEP require to be considered in addressing the various grounds of appeal pleaded by the Council. The appropriate course, rather than reproducing a compendium of the relevant provisions at this point in my decision, is to set them out, as relevant, when addressing the individual ground pressed by the Council.

The nature of s 56A appeals

16. Mr Stafford, barrister for the Council, adopted the principles applying to a s 56A appeal, as have been set out Tanious v Georges River Council [2016] NSWLEC 142 at [10] by Pepper J and Hoy v Coffs Harbour City Council [2015] NSWLEC 132 at [4] by Pain J. He emphasised that an important point restated in each of these decisions is that such an appeal must concern a question of law and not merely raise questions of fact.

17. Mr Robertson SC, for the Company, submitted that several further important principles also applied to s 56A appeals, these being that:

1. The Court should not read the reasons of a commissioner with an eye attuned to error (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272, citing Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at [37]);

2. A commissioner’s decision should not be read as if written by a lawyer (Brimbella Pty Ltd v Mosman Municipal Council (1985) 79 LGERA 367 (Brimbella) at 368); and

3. Such decisions should be read as a whole, such that a “verbal slip or infelicity of expression does not necessarily warrant drawing an inference of an error of law”: Council of the City of Sydney v Base Backpackers Pty Ltd (2015) 208 LGERA 342 at [57].

18. It is to be observed that the various above propositions are unexceptional. However, for these proceedings, each of the 10 grounds pleaded by the Council require considered examination to establish whether or not the basis for complaint raises, and then establishes, error going beyond the benign approaches warranted by the propositions advanced above by Mr Robertson.

Grounds 1 to 4 - the bushfire grounds

Introduction

19. Grounds 1 to 4 concerned Contention 3A of the Amended Statement of Facts and Contentions, being the bushfire grounds. As a consequence, it is convenient to group these grounds together for the purposes of consideration. The Council’s Contention 3A before the Commissioner was in the following terms:

3A   Bush fire risk management

The proposal ought be refused because it has not been supported by sufficient information to demonstrate that the site is appropriate for the type of the development proposed and the residents’ safety in the event of bush fire.

Particulars:

a) The site is located on land that is within the vicinity of land identified on a bush fire prone land map certified under section 10.3 of the EP&A Act (being the Warringah Bush Fire Prone Land Map) as “Bush fire prone land—vegetation category 1”, “Bush fire prone land—vegetation category 2” and “Bush fire prone land—vegetation buffer”. The DA has not been supported by sufficient information (i.e. a bush fire report) to demonstrate that the bush fire solution is adequate or appropriate for the site, and to enable consideration to be given to the matters specified in clause 27(2) of SEPP (HSPD).

b)   The residents of the proposed 90 bed RACF and 48 self-contained dwellings would add additional pressure during emergency and evacuation.

c)   Access for (15 tonne) firefighting vehicles around the proposed buildings has not been demonstrated. Perimeter access has not been demonstrated, nor has a perimeter road been provided.

Controls:

- Section 10.3 of EP&A Act and Warringah Bush Fire Prone Land Map

-   Clause 27(2) of SEPP (HSPD)

20. The relevant element of the SEPP, contained in cl 27(2)(h), is in the following terms:

1. Bush fire prone land

   (1)   …

   (2) A consent authority, in determining a development application made pursuant to this Chapter to carry out development on land in the vicinity of land identified on a bush fire prone land map certified under section 10.3 of the Act as “Bush fire prone land—vegetation category 1”, “Bush fire prone land—vegetation category 2”, “Bush fire prone land—vegetation category 3” or “Bush fire prone land—vegetation buffer”, must take into consideration the general location of the proposed development, the means of access to and egress from the general location and other relevant matters, including the following—

   …,

   (h)   the nature, extent and adequacy of bush fire emergency procedures that are able to be applied to the proposed development and its site,

   21. The terms of the grounds of appeal as pleaded were earlier set out at [14]. Mr Stafford’s written submissions to me conveniently provided a summary of each of the grounds pressed by the Council. For Grounds 1 to 4, that summary was that the Commissioner had:

(a) pre-judged the mandatory considerations regarding bushfire under subclause 27(2) of State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 (SEPP HSPD) by finding on 21 June 2019 that he proposed to grant consent to the development before he had evidence that he said he required to undertake those considerations (Appeal Ground 1) or, if the effect of his decision on 21 June 2019 was to actually approve the proposal, he failed to consider the mandatory considerations under subclause 27(2) before he granted approval (Appeal Ground 2);

(b)   failed to afford procedural fairness to Council by seeking further evidence from the Respondent to this appeal (Tolucy) on bushfire, after deciding to approve the proposal anyway, without affording to Council an opportunity to respond with its own evidence or submissions except insofar as those submissions concerned conditions (Appeal Ground 3);

(c)   failed to disclose reasons as to why he decided to approve the proposal notwithstanding Contention 3A regarding bushfire, because all of the findings he made on bushfire were to the effect that the information before him did not fully address Council's contention or other matters of concern raised by the Commissioner (Appeal Ground 4) - Council had submitted that the Court should consider the resident submissions on bushfire in the course of undertaking the task required by subsection 27(2) of SEPP HSPD and refuse to grant consent to the proposal on that basis;

The relevant elements of the Commissioner’s judgment

22. In his decision delivered on 21 June 2019, the Commissioner said, at [174]:

1. For the reasons already stated, I propose to grant consent to the development. …

   23. However, critical to these grounds in the Council’s appeal, the Commissioner continued, in [174], saying:

… However as the parties require my findings in order to settle an agreed set of conditions, the Court directs that within 14 days of these orders:

(1)   The applicant is to provide an assessment that details the effect of achieving a BAL rating of 12.5 to the RACF, including any implications for building design, material selection, landscaping or the like

(2)   The applicant is to provide a detailed report on the nature, extent and adequacy of bush fire emergency procedures that are able to be applied to the proposed development and its site, as set out in cl 27(2)(h) of the SEPP HSPD.

(3) The parties to settle the preferred approach to the Cooyong Road verge, noting my comments at [172].

(4)   The parties are to confer and to settle conditions.

(5)   In the event that the parties cannot agree terms of any of the conditions, the parties have leave to approach the Registrar to relist the matter before me for short arguments about the conditions at issue.

24. On 12 July 2019, the Commissioner attached an addendum to his 21 June 2019 decision. The addendum incorporated orders granting the Company development consent for the RACF and the ILU facility at the site subject to conditions. The addendum reads:

Addendum made on 12 July 2019

175   In accordance with the terms of my directions in [174] of my judgment of 21 June 2019, the parties provided me with the following:

(1) Expert report prepared by Building Code & Bushfire Hazard Solutions dated 1 July 2019 comprising a bushfire design impact response;

(2) Proposed draft Bushfire Emergency Management Plan prepared by Building Code & Bushfire Hazard Solutions filed on 2 July 2019;

(3) An agreed set of conditions of consent filed on 9 July 2019 containing conditions responsive to the reports prepared by Building Code & Bushfire Hazard Solutions.

176   I am satisfied that the reports and conditions of consent respond to my findings and that consent to the application should be granted on the basis that the development be carried out in accordance with those amended plans. As a result and in accordance with those findings, I am therefore satisfied that consent to the development application should be granted subject to conditions of consent.

177   The Court orders that:

(1)   Leave is granted to the applicant to amend the application for development consent, by relying on the information and the amended plans identified in Condition 1(a) of Annexure ‘A’.

(2)   The appeal is upheld.

(3)   Development consent is granted for DA 2018/1752 for a 90 bed Residential Aged Care Facility providing beds to dementia and respite care patients and 48 Serviced Self-Care Housing dwellings together with basement car parking, landscaping and ancillary works, subject to the conditions in Annexure ‘A’.

(4)   The exhibits are returned, except for Exhibits A, LL and 7.

The Council’s position

25. Mr Stafford submitted that the development should have been refused because the evidence did not demonstrate that the site was appropriate for residents’ safety in the event of bushfire, a consideration that was required by cl 27(2) of the SEPP.

26. He further submitted that the Commissioner had prejudged bushfire‑related matters or, in the alternative, failed to consider bushfire‑related matters. He highlighted four elements in the Commissioner’s decision, in which the Commissioner indicated that he did not consider that he had all the necessary information to make a determination. Those elements were set out in Mr Stafford’s written submissions at [17] as being:

(a)   at [143] - the factors for consideration in clause 27(2) were “to some extent” addressed in Exhibit DD;

(b)   at [170] - the Council’s contention in relation to inadequate provision for fighting bushfire would appear to be “partially addressed” by Tolucy in the form of the RFS letter (referred to earlier at [139]) and the report of Tolucy’s bushfire expert (referred to earlier at [147]);

(c)   at [171] - the RFS letter and the report of Tolucy’s bushfire expert pre-date the final amended plans (and the proposed BAL rating condition) so that it was his view that the Court requires greater confidence in the nature, extent and adequacy of bush fire emergency procedures that are able to be applied to the proposed development and its site as set out in cl 27(2)(h) of SEPP HSPD; and

(d)   at [174(2)] - Tolucy was directed to provide a detailed report on the nature, extent and adequacy of bush fire emergency procedures that are able to be applied to the proposed development and its site, as set out in cl 27(2)(h) of SEPP HSPD.

27. Despite these identified deficiencies, the Commissioner had said, at [174] as earlier noted:

For the reasons already stated, I propose to grant consent to the development.

28. Mr Stafford put that the Commissioner was purporting to grant consent in the future without first receiving all the evidence that he said he was required to consider for the purposes of cl 27(2)(h). The Commissioner therefore prejudged these mandatory considerations (Appeal Ground 1). Such action represents apprehended bias, a proper ground founding a s 56A appeal: Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118 (Initial Action) at [139].

29. In the alternative, this statement by the Commissioner amounted to a decision to approve the development before taking into consideration the mandatory considerations in cl 27(2)(h) (Appeal Ground 2). Mr Stafford submitted that Appeal Ground 2 is the more likely correct position, as the Commissioner did not evince any intention that he might change his mind in response to any further information received. This scenario is to be contrasted with Ku-ring-gai Council v Bunnings Properties Pty Ltd [2019] NSWCA 28 (Bunnings Properties), in which Preston CJ found that the Commissioner had indicated that a path adverse to that applicant would be taken if the new evidence did not remedy the deficiencies; those circumstances did not represent a purported use of power to grant or refuse consent.

28. A failure to consider a matter that the decision-maker is required to consider is an error on a question of law: Warkworth Mining Ltd v Bulga Milbrodale Progress Association Inc (2014) 86 NSWLR 527; [2014] NSWCA 105 (Warkworth Mining) at [4].

29. The Commissioner sought further evidence from the Company in regard to Contention 3A, without allowing Council any opportunity to put on any evidence in reply. Upon evincing an intention to grant approval and requesting additional information from only the Company, a denial of procedural fairness crystallised (Appeal Ground 3). The fact that Council did not pursue any relisting to deal with this matter is irrelevant to the issue of whether the Commissioner denied the Council procedural fairness. A failure to accord procedural fairness is an appealable error of law: Warkworth Mining at [5]; Wechsler v Sydney City Council (No 2) [2015] NSWLEC 35 at [13]; Mike George Planning Pty Ltd v Woollahra Municipal Council (No 3) [2014] NSWLEC 123 at [72]. It is unusual that a denial of procedural fairness will not result in the Court granting relief.

30. The Commissioner did not give reasons why he was satisfied that the development ought to be approved, notwithstanding the gaps in evidence in regard to cl 27(2) (Appeal Ground 4). The lay evidence given by the local residents on site revealed considerable concerns about bushfire in the locality. It was not possible for an objective observer to discern how the Commissioner approved the proposal in light of the bushfire considerations.

The position advanced for the Company

Grounds 1 and 2

33. Mr Robertson submitted that, whilst the Commissioner stated on 21 June 2019, “I propose to grant consent to the development”, he prefaced this statement with the view that he did not yet have all the information to grant consent. In literal terms, the Commissioner merely stated a proposal.

34. Mr Robertson advanced the proposition that approval was actually given in the addendum dated 12 July 2019, whereby the Commissioner satisfied himself of the additional reports and conditions of consent. This is inconsistent with the assertion by Council that the Commissioner decided to grant consent on 21 June 2019.

35. Commissioners are able to make interim findings, subject to the submission of additional information. These findings may be found at the conclusion of merits hearings: Bunnings Properties at [173]. There may be public benefits in promoting the practical resolution of merits appeals by way of interim judgments: Maxnox Pty Ltd v Hurstville City Council (2006) 145 LGERA 373; [2006] NSWLEC 146 (Maxnox) at [57].

36. The Commissioner was not purporting to give an “amber light” judgment. Nevertheless, interim decisions to refuse and interim decisions to approve cannot be distinguished meaningfully.

37. Consequently, if the Commissioner did not decide to approve the proposal on 21 June 2019, then Grounds 1 and 2 must fail.

38. Ground 1 must also fail because the interim decision does not amount to prejudgement. The Commissioner’s view was open to change. Council submitted that the phrase “I propose to grant consent to the development” indicated a fixed and irrevocable decision to grant consent. Such an approach entails reading the phrase as if written by a lawyer, being an unacceptable approach: Brimbella.

39. Ground 2 must also fail because the obligation to take environmental planning instruments into account arises at the point of determination. If it is accepted that approval was given on 12 July 2019, then all the information required by cl 27(2) was before the Commissioner.

Ground 3

40. The submissions made for Council that there was no utility in approaching the Court after 21 June 2019 (since the decision had allegedly been made) is incorrect. Indeed, a listing had been made for 2 July 2019 for argument about conditions and the resolution of any outstanding matters. On Council’s request, this listing was vacated. Mr Robertson submitted that Council was bound by the way it conducted its case below.

Ground 4

41. A decision-maker is only required to give reasons to state “the grounds which have led him or her to the conclusions reached concerning disputed factual questions and to list the findings on the principal contested issues”: Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 (Soulemezis) at 259. This does not require the decision-maker to respond to every fact or law raised in argument: Housing Commission v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378.

42. The only bushfire‑related contention was Contention 3A. Mr Robertson put that:

This contention was concerned with failure to provide adequate information, rather than with bushfire risk per se. (emphasis in original)

43. Council abandoned this contention at hearing, leaving the Commissioner to consider the merits under cl 27(2). Mr Robertson elaborated, stating:

At one point counsel for the Council claimed that the bushfire contention “maintained on the basis of the residents’ experience evidence that was given on site”, but this was in substance a different contention: it was “scary”.

44. This was not a principal contested issue. It was not the subject of any pleaded contention or expert evidence. If the Commissioner intended to decide the matter based on a factor not raised in the contentions, then procedural fairness would require notification to the Company: Boral Cement Pty Ltd v SHCAG Pty Ltd [2013] NSWLEC 2013 at [35]-[36]. Failure to give reasons for issues not raised in Council’s contentions therefore does not constitute an error of law: Soulemezis at 259.

45. Regardless, the Commissioner sufficiently demonstrated that Contention 3A was resolved in the Company’s favour, at [136]-[147], [170]-[171] and [174] of the substantive judgment. The Company was invited to remedy deficiencies identified. The inference that is created here is that apart from these deficiencies, the Commissioner was satisfied of the documentation. Therefore, once the inference is accepted, the Commissioner’s reasons contain a complete examination of how Contention 3A was resolved.

46. With regard to the additional information provided, he submitted that “the sufficiency of the additional information was not in contest, so there was no obligation to provide reasons for accepting it”.

The Council’s response to the Company’s submissions

47. Contrary to the Company’s submissions, the Council did not change its course in respect of Contention 3A. At no point did the Council submit that the issues raised by Contention 3A issue were resolved. The Council did not accept that the Company had provided sufficient information to enable a merits assessment with regard to cl 27(2). Further, Contention 3A was not limited to considerations of cl 27(2), as satisfaction of Contention 3A required demonstration that the matters in the whole of the contention had been addressed. The provision of information, which cl 27(2) required to be considered, involved only part of the process of demonstrating resolution of the matters raised by the contention. Contention 3A remained at issue.

48. The theoretical possibility that the Commissioner may have refused approval following the provision of the requested evidence by the Company is irrelevant to the question of apprehended bias. A complaint based on, and established by, actual past conduct or comments is sufficient to found apprehended bias.

49. With respect to Appeal Grounds 1 to 2, none of the authorities advanced by the Company support its argument. It was not the case where the Commissioner was expressing a preliminary view and inviting the parties to respond. The Commissioner indicated his intention to approve the proposal and invited the Company only to provide evidence that would support his announced course. The calling for evidence to support an already disclosed decision discloses apprehended bias.

50. In his oral submissions in reply, Mr Stafford conceded that (2) of the Commissioner’s findings at [174] was partly directed at dealing with the conditions of consent. However, they were also directed at the task of assessment required by cl 27(2)(h). On the issue of cl 27(2) (Transcript, 25 March 2020, page 7, lines 13 to 15), he submitted:

Nowhere did the commissioner identify in the decision that council had in fact sought refusal on the basis of the bushfire contention. Ultimately, nowhere was that addressed.

51. With respect to Appeal Ground 3, authority stands for the proposition that a person with an interest in a decision is not always required to show what would have occurred if they had been accorded procedural fairness: Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326 at [58]-[59]. The Company has not provided any authority that shows that it was incumbent upon the Council to take additional steps outside of the directions to ensure procedural fairness was accorded to it. It is unclear what steps the Council could even have taken, as relisting was not an “applicable procedure” in this context.

52. With regard to Appeal Ground 4, the Company incorrectly asserts that the Council abandoned Contention 3A at trial and that the Council accepted that the information required by cl 27(2) had been provided. The only consideration of cl 27(2) evident in the decision lies at [176], in which it is not possible to discern why the Commissioner approved the proposal.

53. In his oral submissions in reply, Mr Stafford also pointed to the extensive involvement and consideration of the neighbours’ concerns as evidence that Council had not dropped the bushfire contention. He had made the following submissions to the Commissioner (Transcript, 22 May 2019, page 61, lines 3 to 25):

Finally in terms of effectively the fifth reason as to why the proposal ought be refuse is that we maintain contention 3(a), which is the bushfire contention, on the basis of the submissions that were made by the residents at the hearing. The residents spoke forcefully with a collection of experience evidence, effectively, about their experiences in connection with bushfire in that locality. In my submission, that's relevant to the task that you're required to undertake under s 27(2) of SEPP HSPD.

You heard evidence in connection with how close bushfires had come to the subject site and people's concern about embers. You've obviously been given evidence by the applicant in exhibit DD dealing with that but I'd ask that you consider the evidence in exhibits 2 and 7 as well as what you've heard and ultimately the summary of the evidence of the residents so as to, council would say, refuse to grant consent for the proposal on the basis of the bushfire risk. I accept that there's nothing in s 27(2) that requires you to reach that conclusion.

They are merely considerations but it is open to you, in my submission, in undertaking the considerations under s 4.15 of the EP&A Act, considering those submissions to determine that you are not satisfied in connection with some matter relating to bushfire. I would summarise the residents' evidence as saying that it was scary. They're the bases on which I say the proposal should be refused.

54. He submitted to me (Transcript, 25 March 2020, page 10, lines 25 to 42):

In addition, it’s not apparent from the reasons that have been given why the commissioner, having found in paras 170 and 171 that the information before him wasn’t sufficient to undertake the mandatory considerations required by cl 27(2), why it was that the learned commissioner was then satisfied in cl 176 that what he had received led to it being appropriate for approval. I have to acknowledge, if direction 2 had only been dealing with conditions para 176 would have been an entirely appropriate finding in the context of conditions. But that wasn’t what was happening here.

The commissioner left himself, after making the decision, to determine - either determined in para 174 finally the application or left himself to determine to consider the cl 27(2)(h) considerations after receiving the evidence. If he did that, he did that in circumstances where he'd already indicated that he proposed to grant consent. For those reasons I say the reasons that were purportedly given in para 176 do not shed light on why it is that the commissioner decided not to refuse the proposal in the face of the submissions on contention 3A and why the commissioner changed his position notwithstanding what he had said in paras 170 and 171.

Consideration of Grounds 1 to 4

Grounds 1 and 2

55. I have earlier set out the terms of cl 27(2)(h) of the SEPP. It is to be noted that, in the element of the Commissioner's decision giving rise to this complaint by the Council, he had said (at [174](2)) - emphasis added by me:

1. For the reasons already stated, I propose to grant consent to the development. However as the parties require my findings in order to settle an agreed set of conditions, the Court directs that within 14 days of these orders:

   (1)   …

   (2)   The applicant is to provide a detailed report on the nature, extent and adequacy of bush fire emergency procedures that are able to be applied to the proposed development and its site, as set out in cl 27(2)(h) of the SEPP HSPD.

   56. The complaint made by the Council in Ground 1, of prejudgement, must be viewed in light of the earlier paragraphs relied upon by the Council in support of this ground.

   57. The first of the preambular sentences in [174] of the Commissioner's decision was only qualified to the extent that that which followed was said to be necessary for the purposes of settling the conditions of the development consent which he proposed to grant. It is clear, in the way that element had been written, that the Council’s complaint based on Initial Action is well‑founded. The proposition advanced on behalf of the Company that the Commissioner had merely made interim findings subject to the submission of additional information is rejected.

   58. What was proposed in Bunnings Properties was an opportunity provided to an applicant to amend an application in response to concerns raised by the adjudicating commissioner. That is not the case here. The statement by the Commissioner, at the commencement of [174], was a specific and precise intention to grant consent, with the only conditionality being that which related to the conditions upon which that would occur.

   59. Similarly, the Company's reliance on Maxnox at [57] is misplaced. The concluding sentence of the paragraph upon which reliance is placed is in the following terms:

2. … That may sometimes be achievable through an interim judgment, which gives an applicant the opportunity to amend its application before the Court pronounces its final judgment.

   60. Although the Commissioner’s July 2019 addendum was based on conditions of consent responsive to the additional Bushfire Emergency Management Plan provided by the Company ([175](2) and (3)), this falls short of the approach taken in Bunnings Properties where a further hearing took place based on the proposed amendments.

   61. In addition, the short discussion following from [57] in Maxnox made it clear that the context was whether or not a response to the findings that were made on an interim basis would result in the necessity for an amended development proposal so different from that which was then before the Court that it would be inappropriate to permit that course to be followed.

   62. In this instance, the Commissioner made an unconditional statement that he proposed to grant development consent on the basis of an as yet to be provided document that would satisfy the necessity of him taking into consideration that which was required by cl 27(2)(h) of the SEPP.

   63. The sufficiency or otherwise of the additional material is irrelevant in the context where the Commissioner had unequivocally stated that he was going to give consent - a statement made prior to, and in anticipation of, the provision of that material.

   64. The consequence of the course of action embarked upon by the Commissioner in [174] of his decision provides a proper foundation for upholding Ground 1, in that the Commissioner determined to grant development consent without having a proper evidentiary basis to permit him to have taken into consideration the matters required by cl 27(2)(h), with such taking into consideration being a mandatory necessary prerequisite to the granting of consent to the Company's development proposal.

   65. Grounds 1 is made out. As Ground 2 was pleaded by the Council in the alternative to Ground 1 and I have upheld Ground 1, it is not necessary to address it. However, against the event that my approach to Ground 1 is in error, I would uphold Ground 2 in the alternative.

Ground 3

66. The complaint asserting that the Council had been denied procedural fairness by the Commissioner in that there had been no opportunity for the Council to address the additional evidence provided by the Company concerning bushfire issues can be disposed of in short compass. It raises no great matter of principle. The general propositions espoused on behalf of the Company on this point are correct.

67. The regime established by the Commissioner by virtue of [174](5) of his June 2019 decision provided a basis upon which the matter could be relisted before the Commissioner to address the detail of bushfire issues to be incorporated in conditions of consent. Indeed, the matter was so relisted for 2 July 2019, but that relisting was vacated at the request of the Council.

68. Although the specific opportunity to relist was expressed by the Commissioner to be a confined one, had the Council exercised the right provided for by the Commissioner, nothing would have prevented those representing the Council at such a relisting from putting the proposition to the Commissioner that the Council should have an opportunity to deal with the merits of the material subsequently noted by the Commissioner in [175] as having been provided on behalf of the Company to address bushfire issues.

69. As submitted on behalf the Company, the Council is bound by the forensic decision below not to exercise the opportunity to relist the matter and, at such relisting, propose to the Commissioner that it wished to be heard in a broader sense than had been provided for in the framework of the Commissioner’s decision at [174(5)].

70. The Council failed to avail itself of the (limited) opportunity clearly left open to it, expressly, by the Commissioner - an opportunity where the Council could have requested to be heard further on bushfire matters. It cannot now complain about the consequences of its forensic decision not to take advantage of that opportunity.

71. Ground 3 is rejected.

Ground 4

72. On the first day of the hearing, Mr Robertson noted, with respect to the bushfire contention (Transcript, 20 May 2019, page 25, lines 27 to 33):

But as you heard this was added to the SOFAC a couple of weeks ago, this issue. It hadn't arisen between us and council, although it had been a concern of the residents from last year, but apparently not for council, and it became an issue - I think it might have been the panel.

73. In his opening submissions to the Commissioner, Mr Stafford summarised the bushfire issue in the following terms (Transcript, 21 May 2019, page 13, lines 46 to 49):

Contention 3A is the bushfire risk management contention. The contention as framed, as you will be aware, was that cl 27(2) of SEPP HSPD, effectively that there wasn't any material provided that would have enabled you to undertake the consideration required under cl 27(2) of SEPP HSPD.

74. In Mr Stafford's subsequent, more lengthy opening submissions, he addressed, relevantly, the outstanding concerns relating to bushfire at page 21 of the transcript of 21 May 2019. It is unnecessary to quote the entirety of what was put to the Commissioner; it is sufficient to note that, at lines 26 to 35 on that day this passage make it clear that there did, in fact, remain a significant contest between the Council and the Company before the Commissioner concerning bushfire issues.

74. In this context, I am unable to accept the submission advanced on behalf of the Company that this was not a principal contested matter.

75. I have earlier set out, at [26], the four locations in the Commissioner's decision where the Council had submitted that the Commissioner had acknowledged the inadequacy of the information available to him for the purposes of considering cl 27(2)(h) of the SEPP. An examination of each of those elements of the Commissioner's decision confirms that he had indicated that he did not have a full suite of necessary information for him to be satisfied that, in taking into consideration location and access/egress from the relevant locality, appropriate bushfire emergency procedures were able to be applied to the proposed development and its site.

76. The language used by the Commissioner in directing the Company to provide a detailed report as specified by the Commissioner in [174(2)] clearly demonstrated that, as at 21 June 2019, he did not have adequate evidence concerning bushfire matters but that he had decided to approve the proposed development despite the inadequacy of the material then available to him on this topic.

77. The Commissioner provided no adequate reasons (indeed, no reasons at all) as to why he had reached this decision, given his acknowledgements of the inadequacy of the material before him on this topic.

78. Reasoning as to why the bushfire information (acknowledged to be deficient) was nonetheless sufficient to enable proper consideration of this issue (as required by cl 27(2)(h) of the SEPP) was absent. As earlier noted at [41], Mr Robertson relied on portion of a passage from the decision of Kirby P in Soulemezis at 259. The full text of the relevant passage is:

But the judicial obligation to give reasons, and not to frustrate the legislative facility of appeal on questions of law, at least obliges the judge to state generally and briefly the grounds which have led him or her to the conclusions reached concerning disputed factual questions and to list the findings on the principle contested issues.

80. The position with respect to the Commissioner's addressing of the bushfire issues can be seen as one where the Commissioner acknowledged the inadequacy of the information before him, but provided no explanation as to why he should conclude that he should approve the proposed development - doing this in a fashion where he did not explain why the inadequacies of the bushfire information did not act as an impediment to him doing so. He has stated the conclusion but no grounds for supporting it. It is the absence of any relevant explanation that gives rise to the complaint in this ground, a complaint which is well-founded.

81. Ground 4 is upheld.

Ground 5

Introduction

82. The SEPP provides, in cl 24(2) that:

1. A consent authority must not consent to a development application to which this clause applies unless the consent authority is satisfied that the relevant panel has certified in a current site compatibility certificate that, in the relevant panel’s opinion—

   (a)   …, and

   (b)   development for the purposes of seniors housing of the kind proposed in the development application is compatible with the surrounding environment having regard to (at least) the criteria specified in clause 25(5)(b).

   83. The SEPP also provides, in cl 25(7), that:

A certificate may certify that the development to which it relates is compatible with the surrounding land uses only if it satisfies certain requirements specified in the certificate.

84. The Certificate included Sch 2, a schedule in the following terms, under the heading “Requirements imposed on determination”:

1. The final layout, building construction and onsite facilities in the proposed seniors housing development will be subject to the resolution of issues relating to:

   •   access to services and facilities via appropriate pedestrian and public transport facilities;

   •   building bulk and scale;

   •   flora and fauna issues;

   •   land slip issues;

   •   flooding;

   •   traffic; and

   •   potential contamination.

   85. Mr Stafford’s written submissions summarised Ground 5 as being that the Commissioner had:

(d) failed to reach (or evidence) the satisfaction required by subclause 24(2) of SEPP HSPD, which was a jurisdictional pre-requisite to the exercise of power to grant consent - the Commissioner addressed this partly insofar as “bulk and scale” in the Sch 2 requirements to the site compatibility statement was concerned, but failed to consider the Sch 2 requirement in respect of “access to services and facilities via appropriate pedestrian and public transport facilities” and failed to evidence the satisfaction required by subclause 24(2) (Appeal Ground 5)

The Council’s submissions

86. Mr Stafford submitted that, as the Commissioner had failed to evidence satisfaction of one aspect of the matters mandated by the Certificate (cl 24(2) and cl 25(7) of the SEPP), the power to grant consent was not enlivened. This subclause concerns the presence and validity of a current site compatibility Certificate. He submitted that requirements in Sch 2 to the Certificate were not satisfied, therefore cl 25(7) of the SEPP operated to preclude the Certificate certifying that the development to which it relates is compatible with the surrounding land use. Building bulk and scale, as well as access to services and facilities, were requirements within Sch 2 of the Certificate. These issues were raised in Council’s Amended Statement of Facts and Contentions.

87. The decision-maker failed to explain why he had reached the conclusion there was satisfaction of cl 24(2) of the SEPP. Schedule 2 of the Certificate contained requirements dealing with public transport facilities and pedestrian access. Whilst two dedicated buses were included in the development proposal, there is nothing that evidences connection with the public transportation network or pedestrian facilities. Since requirements of the Certificate were ultimately not met, cl 25(7) does not permit the use of the Certificate to satisfy cl 24(2).

88. However, Council conceded that there was no dispute as to the validity of the Certificate, merely as to whether cl 24 was in fact satisfied. Mr Stafford submitted (Transcript, 19 March 2020, page 27, lines 27 to 30 and 36 to 39):

There is no finding anywhere in the judgment as to whether the commissioner was satisfied that any of the material of evidence before him satisfied the other requirement of the SCC in connection with access to services relevantly via pedestrian links and public transport… I also note in 47 that the Sch 2 requirements via appropriate pedestrian and public transport facilities were squarely put in issue in the submissions but failed to be addressed.

89. It is to be noted that the reference to “47” in the above extract is to [47] of Mr Stafford’s written submissions, a paragraph relevantly in the following terms:

… Sch 2 to the SCC imposes a number of requirements relating to resolution of issues concerning access to services and facilities, building bulk and scale, flora and flora issues, landslip issues, flooding, traffic and potential contamination.

The Company’s position

90. Mr Robertson submitted that the error alleged by Council in its fifth ground, being the Commissioner's approach to the requirements of the Certificate, was misconceived. In his written submissions, at [48], he submitted that:

… the only matters about which the Commissioner needed to be satisfied were that:

1   there was a SCC; and

2   the SCC certified that, in the author's opinion,

a.   the site was suitable for more intensive development, and

b.   the development was compatible with the surrounding development having regard to the criteria specified in clause 25(5)(b).

Read literally, this is not an evaluative power but a power which must be exercised if there is in existence a certificate of a certain description.

91. Later, on this point, he said (Transcript, 20 March 2020, page 81, lines 19 to 24):

As I said, in reviewing the SEPP, we consider the ground completely misconceived anyway because all the commissioner has to do is to be satisfied that was an SCC and that it certified in the secretary of the department's opinion that the site was suitable and the development was compatible, as it sets out. It didn't involve any evaluative power on the part of the commissioner.

92. He proposed that it was clear that the Commissioner was satisfied of these matters. The terms of the Certificate and cl 24(2) were so close that it would have been redundant of the Commissioner to specifically and expressly state that he was satisfied that the Certificate complied with cl 24(2). The parties were furthermore in agreement as to the efficacy of the Certificate.

93. This ground of appeal represented a challenge to the decision-maker's state of mind. Such a challenge will not succeed simply because the state of mind was not expressed in the terms of the statute. The challenger must show that the decision-maker did not attain the required mental state: Manly Council v BDSI Pty Ltd [2010] NSWLEC 31 (BDSI) at [40]-[41]; Bankstown City Council v Mohamad El Dana [2009] NSWLEC 68 at [27] and [54]; Design Power Associates Pty Ltd v Willoughby City Council (2005) 148 LGERA 233 (Design Power) at [55].

94. The substantive judgment does not support such a conclusion. Council's approach requires the reading of additional words into the clause. Situations where the Court will do so are limited and depend upon a purposive interpretation requiring such an addition: Wentworth Securities Ltd v Jones [1980] AC 74 at [105]-[106]; Taylor v Owners Strata Plan 11564 (2014) 253 CLR 531 at [37]-[40]. Council has not justified why additional words ought to be added and therefore the argument must be rejected.

95. If the Court finds to the contrary, and the Commissioner was required to consider Sch 2 of the Certificate, then failure to reach a state of satisfaction has not been demonstrated.

96. On the issue of access to services, extraordinary detail was given by the Commissioner in his judgment: [65]-[135]. This included a consideration of cll 26, 42 and 43. The basis of Council's submission rested on the lack of express words from the Commissioner stating that he had reached mental satisfaction in this area. Failure to reach mental satisfaction must be found on the basis of the evidence as a whole; a conclusion that could not be founded. If the Commissioner was satisfied with the issues under cll 26, 42 and 43, then the Commissioner would have been tacitly satisfied of the "issues" relating to access to services under Sch 2 of the Certificate.

97. Later, Mr Robertson submitted (Transcript, 20 March 2020, page 82, lines 1 to 4):

Yes, the certificate is not a mandatory relevant consideration. If it was intended to make it such, it would've done so. The SEPP makes dozens of things mandatory relevant considerations, but no (sic) the certificate, not the substance of the certificate. It makes the fact of the certificate.

98. Even if the Commissioner had not reached the requisite state of satisfaction mandated by cl 24(2), there would still not be any material error that would justify setting the decision aside: Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123 at [30], [72]; Design Power at [34]. There was no chance that, had he turned his mind to cl 24(2), he would have refused to grant consent based on a failure to resolve access to services. The proposal already complied with cll 26, 42 and 43.

The Council’s submissions in reply

99. Mr Stafford submitted that it was not redundant for the Commissioner to express his view on cl 24(2). Whilst the efficacy of the Certificate was not in dispute, satisfaction of the matters required by cl 24(2) was plainly in issue. The Certificate contained conditions that needed to be satisfied before the suitability of the proposed development with the surrounding land use could be established. The Commissioner did not address all of the conditions contained in the Certificate’s second schedule.

100. Specifically, the issue of “access to services and facilities via appropriate pedestrian and public transport facilities” was not addressed. Mr Stafford put that the Commissioner was required to consider these matters. Consideration of cl 4.6 of the LEP and cll 26, 42 and 43 of the SEPP did not amount to addressing this requirement.

101. BDSI at [40]-[41] does not stand for the proposition that an appellant must show that the decision-maker attained the required mental state. Whilst Council may be required to demonstrate an error of law for the purposes of s 56A, there is no inherent presumption that the Commissioner reached the required mental satisfaction unless Council shows to the contrary.

102. An inference of failure to consider a matter may be found in the absence of evidence toward the satisfaction of a precondition: Manly Council vHortis [2001] NSWCA 81; 113 LGERA 321 (Hortis) at [40]. This principle is apt in this case. There is no evidence that the Commissioner was satisfied of the matters raised by cl 24(2). There is no mention in the Commissioner’s judgment of the “via appropriate pedestrian and public transport facilities” requirement contained within Sch 2 of the Certificate.

103. Mr Stafford directly disagreed with Mr Robertson’s characterisation of cl 24(2), being that the subclause only requires the existence of a certificate in order to be satisfied. Rather, Mr Stafford put that the requirements contained within the Certificate also need to be satisfied, or else they would have no work to do.

104. Since cl 24(2) contains jurisdictional matters, the Commissioner ought to have satisfied himself. Where a view must be formed as a prerequisite to the exercise of power, whether that view has been formed is a question of fact: NSW Aboriginal Land Council v Minister Administering the Crown Lands Act (No 2) [2008] NSWLEC 13 at [76]. Portions of the decision suggest that the Commissioner reached a partial view of Sch 2, but he did not explicitly conclude his satisfaction of the matter in cl 24(2). The Commissioner relieved himself of concern with regard to access to services and facilities by accepting the provision of a community bus. He did not consider pedestrian and public transport facilities, as required by Sch 2. The decision should be set aside because of this failure.

Consideration

105. To the extent that the Commissioner's judgment expressly referred to evidence dealing with Sch 2 of the Certificate, it was noted, under the heading “Character”, with the comment at [148] and [149] that:

1. In the interests of providing an overview of the proposed development, the applicant’s landscape architect expert, Mr Smart, played vision of a computer generated flythrough to the Court, followed by evidence of the town planning and urban design experts relating to Contention 5 which is, in effect, that the proposal is not compatible with the character of the locality.

2. This is reflected in the requirements imposed on the site by Sch 2 of the SCC which includes the resolution of issues relating to building bulk and scale. To the respondent, failing to meet the terms of the SCC means that the Court cannot be satisfied the proposed development is compatible with the surrounding land uses.

   106. To the extent, later, that the Commissioner also expressly addressed Sch 2 of the Certificate in his findings, those findings were, relevantly, at [165] and [167] of his decision. Those paragraphs were in the following terms:

3. The respondent submits that the Court is not bound by the fact that a SCC has been issued when undertaking an assessment under cl 4.15 of the EPA Act. However, in the event the SCC is relied on by me, the respondent asserts that the proposed development does not satisfy the requirements specified in the certificate to resolve building bulk and scale, and so the Court cannot be satisfied under cl 24(2) of the SEPP HSPD.

…

1. I am satisfied that the amended plans have adequately resolved building bulk and scale for the purposes of the SCC.

   107. In the context of the complaint in this ground, precise attention needs to be given to the chapeau in Sch 2(1) of the Certificate. In this context, what is required is the resolution of issues relating to the topics listed rather than a requirement mandating that access to services and facilities had to be provided via appropriate pedestrian and public transport facilities. The matter to which the Commissioner needed to turn his mind was merely the resolution of issues relating to the topic.

   108. As submitted by Mr Robertson, the Council must show that the Commissioner both had not turned his mind to the topic and also had not considered that the matters raised by the bullet point had been appropriately resolved.

   109. The Commissioner's decision, at [95] and [97], although in the context of a specific provision of the SEPP (cl 43(1)), said:

2. I consider it relevant that the application was amended to withdraw a proposed subdivision so that the site is to remain a single allotment. The practical effect of this amendment on the provision of services and facilities is that the ILUs and the RACF are likely to be under a single ownership, and a single operator model.

…

1. Furthermore, I consider the provision of the bus to have been meaningfully integrated into the development, and not merely proposed by way of condition.

   110. As was explained by Pepper J in [40] and [41] of BSDI, a failure to refer expressly to a particular provision is not determinative of demonstrating error. What must be considered is not, in this instance, whether the Commissioner made specific reference to the first bullet point in Sch 2, but whether he considered the substance of the matter referred to in that bullet point and whether the Commissioner had reached the necessary mental state as to the resolution of issues relating to that element of Sch 2.

   111. It seems to me that, given that Commissioner's decisions are not to be analysed as if they had been drafted with legal precision (Brimbella), the Commissioner had, by necessary implication, sufficiently applied his mind to this element of Sch 2 of the Certificate, even though he had not made express reference to it. Although this is to be contrasted with his specific addressing of the second bullet point of Sch 2 at [165] to [169], that consideration arose as a separate specific issue rather than one capable of being seen through the lens of another provision of the SEPP.

   112. Although, in this present context, the Council acknowledged the requirement for the provision of a facility-operated bus service, its complaint was that there was no connection with the public transportation network or pedestrian facilities considered by the Commissioner. I am not satisfied that he was required to do so within the narrow framework postulated by the Council. He was required to address the resolution of issues relating to the topic and he clearly considered that those issues were appropriately resolved by the provision of the facility‑operated bus service.

   113. It is to be observed that there is a degree of overlap between this ground and Ground 8. Ground 8 is separately dealt with later, as consideration of it requires addressing matters in a different contextual setting.

   114. Ground 5 is rejected.

Ground 6

Introduction

115. The requirements of the SEPP relevant to this ground are cll 42(1) and 44, provisions in the following terms:

1. Serviced self-care housing

   (1)   A consent authority must not consent to a development application made pursuant to this Chapter to carry out development for the purpose of serviced self-care housing on land that adjoins land zoned primarily for urban purposes unless the consent authority is satisfied, by written evidence, that residents of the proposed development will have reasonable access to—

   (a)   home delivered meals, and

   (b)   personal care and home nursing, and

   (c)   assistance with housework.

   44   Availability of facilities and services

   A consent authority must be satisfied that any facility or service provided as a part of a proposed development to be carried out on land that adjoins land zoned primarily for urban purposes will be available to residents when the housing is ready for occupation. ….

   116. Mr Stafford’s written submissions summarised this ground as being that the Commissioner had:

242. Mr Stafford expanded on the issue of displacement for Ground 10 (Transcript, 23 March 2020, page 7, lines 40 to 54):

Mr Robertson took you to Burt v Barry Roberts which deals with whether there are two grounds on which a finding is made. But, your Honour, I would say this is a very different situation. We’re really dealing with the different proposition in ISPT. In, and this is in connection with whether Information Gateways is binding. We know from, sorry, we know from Information Gateways that the Council was submitting in, in that matter that both of the clauses ought be considered to apply and that submission was made at, one can see at [32] of Information Gateways and then the finding is ultimately made by his Honour in Information Gateways at [34] that cl 75 operates to exclude cl 25 in relation to those developments referred to in cl 75. So this was a submission made by the party that was ultimately unsuccessful, sorry, the party that was ultimately successful in the proceedings that was rejected by the Court. I acknowledge that a submission was accepted for it to be sent back to the Registrar’s List, presumably ultimately to give the applicant another crack at being able to put this information on, but the bottom line, in my submission, your Honour, is it’s obiter because in connection with the question that was here before the Court, the Court was finding against the, against a submission of the party that was ultimately successful and for the reasons in ISPT it ought not be considered to constitute part of the ratio in connection with the proceedings.

Consideration

243. It is appropriate to commence my consideration of this ground by setting out the terms of cll 26 and 43 of the SEPP (to the extent that they are here relevant). The relevant terms of cl 26 are:

1. Location and access to facilities

   (1)   A consent authority must not consent to a development application made pursuant to this Chapter unless the consent authority is satisfied, by written evidence, that residents of the proposed development will have access that complies with subclause (2) to—

   (a)   shops, bank service providers and other retail and commercial services that residents may reasonably require, and

   (b)   community services and recreation facilities, and

   (c)   the practice of a general medical practitioner.

   (2)   Access complies with this clause if—

   (a)   the facilities and services referred to in subclause (1) are located at a distance of not more than 400 metres from the site of the proposed development that is a distance accessible by means of a suitable access pathway ……, or

   (b)   in the case of a proposed development on land in a local government area within the Greater Sydney (Greater Capital City Statistical Area)—there is a public transport service available to the residents who will occupy the proposed development—

   (i)   that is located at a distance of not more than 400 metres from the site of the proposed development and the distance is accessible by means of a suitable access pathway, and

   (ii)   that will take those residents to a place that is located at a distance of not more than 400 metres from the facilities and services referred to in subclause (1), and

   (iii)   that is available both to and from the proposed development at least once between 8am and 12pm per day and at least once between 12pm and 6pm each day from Monday to Friday (both days inclusive),

   and the gradient along the pathway from the site to the public transport services (and from the public transport services to the facilities and services referred to in subclause (1)) complies with subclause (3), or

   244. The terms of cl 43 are:

2. Transport services to local centres

   (1)   Aconsent authority must not consent to a development application made pursuant to this Chapter to carry out development for the purpose of serviced self-care housing on land that adjoins land zoned primarily for urban purposes unless the consent authority is satisfied that a bus capable of carrying at least 10 passengers will be provided to the residents of the proposed development—

   (a)   that will drop off and pick up passengers at a local centre that provides residents with access to the following—

   (i)   shops, bank service providers and other retail and commercial services that residents may reasonably require,

   (ii)   community services and recreation facilities,

   (iii)   the practice of a general medical practitioner, and

   (b)   that is available both to and from the proposed development to any such local centre at least once between 8am and 12pm each day and at least once between 12pm and 6pm each day.

   245. The question of the interaction of these clauses (or what might be the exclusionary effect of cl 43 in its application to the ILU aspect of the Company's proposed development) were set out at [76] to [82] of the Commissioner’s decision where he set out the competing positions of the Company and the Council.

   246. Unsurprisingly, the position advanced for the Company was that cl 43 ousted the operation of cl 26, whilst the Council submitted that the contrary position was correct and that both clauses applied to the proposed development.

   247. The Commissioner felt that he was, with respect to the ILU element of the proposed development, bound by the decision of Cowdroy J in Information Gateways where his Honour dealt with the relationship between the two provisions (to identical effect) in the former SEPP (although, in that earlier instrument, the numbering of the clauses differed). His Honour observed, at [33] and [34]:

3. Both cll 25 and 75 are mandatory, but while cl 25 is a general provision relating to development for seniors housing, cl 75 pertains solely to development of serviced self-contained housing on land which adjoins lands zoned primarily for urban purposes.

4. Clauses 25 and 75 are each directed to ensuring that residents of seniors living developments will have access to the facilities which are identically referred to in each of such clauses. Clause 75 ensures the provision of transportation to the listed facilities where the development is of the type and on land referred to in the said clause. Both clauses prima facie are operative. It would be illogical however to require the provision of a bus service for the residents where the development was located within 400 m of the facilities. Clause 75 is clearly intended to operate in those circumstances where the development is located further distant than 400 m from the nominated facilities. As such, cl 75 operates to exclude cl 25 in relation to those developments referred to in cl 75.

   248. In the present circumstances, the Commissioner applied the final sentence of [34] of his Honour's decision and concluded that cl 43 of the SEPP operated to exclude the operation of cl 26 of the SEPP.

   249. In Mr Stafford's submissions, he advanced the proposition that neither the Commissioner nor I was bound by his Honour's decision, in this regard, in Information Gateways. He proposed that this conclusion should be adopted, advancing two bases for such a conclusion. The first was that the proposition extracted above from Information Gateways was obiter dicta and, therefore, not binding. In the alternative, he submitted that the decision was clearly wrong on a proper construction of the SEPP.

   250. As I am satisfied that the second of these propositions is correct, it is unnecessary to explore, further, any analysis of the context in which his Honour's observations were made. In expressing this conclusion, I am mindful of what was said by the Court of Appeal in Gett v Tabet [2009] NSWCA 76, where there was a discussion of the meaning of the phrase “plainly wrong”. The Court of Appeal observed, at [294] and [295]:

5. The phrases "plainly wrong" or "clearly wrong" can be understood to focus on at least one or more of the following attributes of a ruling:

   (a)   the fact of error is immediately (in the sense mentioned in [283] above) apparent from reading the relevant judgment;

   (b)   the strong conviction of the later court that the earlier judgment was erroneous and not merely the choice of an approach which was open, but no longer preferred (cf Chamberlain and Clutha), and

   (c)   the nature of the error that can be demonstrated with a degree of clarity by the application of correct legal analysis.

6. In our view, the first possibility is liable to be highly subjective and should not be required, where the other two possibilities are satisfied. The existence of (b) and (c) is a precondition to the exercise of the power to depart from earlier authority.

   251. In this context, I am satisfied that a proper application of (b) and (c) above, when applied to the element of Information Gateways earlier extracted, shows that the conclusion there expressed was clearly wrong and is not to be followed.

   252. The starting point for this analysis is to consider the context in the SEPP where the two provisions are located. The SEPP contains a number of chapters. Chapter 3 encompasses a wide range of provisions, some of which apply specifically to developments proposed for land zoned primarily for urban purposes (for example infill self-care housing - see cl 13(2)) or others that only apply to development proposed to be constructed on land adjoining land zoned primarily for urban purposes (see cl 17 and Pt 5 of Ch 3).

   253. All the relevant provisions, including the two clauses here requiring consideration, are contained in Ch 3. Relevant to understanding what is addressed by this chapter of the SEPP, it is appropriate to reproduce cll 14 and 15 (they being located in Pt 1 General of the Chapter). These clauses are in the following terms:

7. Objective of Chapter

   The objective of this Chapter is to create opportunities for the development of housing that is located and designed in a manner particularly suited to both those seniors who are independent, mobile and active as well as those who are frail, and other people with a disability regardless of their age.

8. What Chapter does

   This Chapter allows the following development despite the provisions of any other environmental planning instrument if the development is carried out in accordance with this Policy—

   (a)   development on land zoned primarily for urban purposes for the purpose of any form of seniors housing, and

   (b)   development on land that adjoins land zoned primarily for urban purposes for the purpose of any form of seniors housing consisting of a hostel, a residential care facility or serviced self-care housing.

   254. The two clauses that are here in contest are located in different elements of Ch 3. Clause 26 is contained in Pt 2 Site Related Requirements. There is nothing elsewhere in any element of Ch 3 that indicates that the clauses in Pt 2 of Ch 3 are other than of general applicability to all types of development for seniors housing rendered permissible by the SEPP.

   255. Clause 43, on the other hand, is contained in Pt 5 Development on land adjoining land zoned primarily for urban purposes of Ch 3. This clause applies, as can be seen from its terms as earlier set out, to seniors housing development that is of the serviced self-care housing typology and is proposed to be constructed on land that adjoins land zoned primarily for urban purposes. There is nothing in Pt 5, a Part which contains a limited range of specific criteria applicable to housing of this type, that says expressly that cl 43 ousts cl 26.

   256. Two questions then arise to be considered in this context of absence of specific ouster. The first is whether it is possible to comply with both provisions. The second is whether it is possible for a development proponent to seek to set aside the necessity to comply with the requirements of both clauses.

   257. As to the first proposition, from a reading of cll 26 and 43 in close sequence, it is clear that the terms of both clauses are capable of being satisfied by one or other of the elements of cl 26(2)(a) or (b) together with cl 43. There is, therefore, no inherent contradiction between the two provisions (onerous though compliance with both might be considered).

   258. Because it is possible for both provisions to be complied with, the circumstances discussed in the separate note provided on behalf of the Company do not here arise as that note addressed circumstances where there was an inherent and irreconcilable difference between two provisions and thus the necessity to determine whether or not the specific ousted the general.

   259. It is, therefore, necessary to consider whether a development proponent can seek to set aside the necessity for compliance with both. The answer, clearly, is “yes”. This is because what is required to satisfy cl 26 is a development standard and it does not act as a prohibition (as earlier noted concerning availability of cl 4.6 of the LEP).

   260. In this instance, as the Commissioner noted at [77] of his decision, the Company had submitted a written request pursuant to cl 4.6 of the LEP to be exempted from compliance with the provisions of cl 26 of the SEPP with respect to the RACF element of its proposed development. At [103], he observed:

The applicant’s written request, made pursuant to cl 4.6 of the WLEP, seeks to contravene the provisions of cl 26 of the SEPP HSPD, already reproduced at [52] as it relates to the RACF.

261. The Commissioner considered the merits of this cl 4.6 request at [105] to [131] of his decision. He concluded, as set out at [132]:

For those reasons the applicant’s written request made pursuant to cl 4.6 of the WLEP to contravene cl 26 of the SEPP is approved.

262. From all of the foregoing, it can be seen that the appropriate conclusions are that:

1. Clauses 26 and 43 both applied to the Company's proposed development;

2. Both clauses were capable of being given effect without there being an irreconcilable tension between them if complete compliance was required;

3. The ability to make a request pursuant to cl 4.6 of the LEP to seek to avoid compliance with cl 26 in its application to the ILU element of the Company's development was available to the Company because, consistent with Robson J’s reasoning in Principal Healthcare [2016] NSWLEC 153, cl 26 embodied a development standard capable of being the subject of such a request;

4. Absent the granting of a request pursuant to cl 4.6 of the LEP, the Company was obliged to satisfy the requirements of both clauses; and

5. Such a request with respect to the ILU element of the Company's proposed development would have been capable of being dealt with by the Commissioner in the same fashion as he had addressed the cl 4.6 request with respect to the RACF element of the proposed development.

263. As the Commissioner was led into error by his reliance on Information Gateways (and he is not to be criticised for this), it follows that the Council's complaint that he was obliged to (but did not) address cl 26 of the SEPP in the context of the ILU element of the proposed development was an error of law.

264. In reaching this conclusion, I am not to be taken to be criticising the analysis that the Commissioner did apply to the request pursuant to cl 4.6 of the LEP concerning the RACF element of the Company's proposed development, nor to be expressing any view as to the adequacy or otherwise of the cl 4.6 request which the Commissioner did not address - one seeking through that mechanism for the Company to avoid the necessity of compliance with cl 26 of the SEPP for the ILU element of the proposed development.

265. Ground 10 is upheld.

The approach to the absence of a current Site Compatibility Certificate

Introduction

266. In Zhiva Living Dural Pty Limited v Hornsby Shire Council (No 3) [2019] NSWLEC 152 (Zhiva Living), I had held that the expiry of the Certificate meant it was appropriate that, pursuant to s 56A(2)(b) of the Court Act, the appeal should be dismissed, despite the fact that there were proper bases to conclude that the Commissioner there involved had committed legal error that might otherwise warrant remitter.

267. Mr Robertson proposed that I ought not adopt the course I had taken in Zhiva Living. He advanced a range of propositions founded on aspects of the Environmental Planning and Assessment Regulation 2000 and what he put were parallels with issues relating to owner’s consent for proposed developments. For the reasons which follow, it is unnecessary for me to address those submissions because, as outlined below, I do not propose to dismiss these proceedings.

268. Since reserving my decision in this matter, Preston CJ delivered his decision in Ballina Shire Council v Palm Lake Works Pty Ltd [2020] NSWLEC 41 (Palm Lake) - a decision where his Honour did not determine the development application by refusal but remitted the matter to the Commissioner for further consideration on the merits with the observation, at [135]:

1. Palm Lake submitted that remitter is futile as the site compatibility certificate has expired, so that consent can no longer be granted to the proposed seniors housing development. This might be so, but Palm Lake can apply for another site compatibility certificate. In the meantime, it can seek an adjournment of the remitted proceedings before the Commissioner to await the outcome of its application for another site compatibility certificate.

   269. The difference between Zhiva Living and Palm Lake was that, in Zhiva Living, the Commissioner had, in the first instance, determined that the development should be refused consent and, as a consequence, there was no development consent that would be forgone by the upholding of the appeal against that Commissioner's decision. In Palm Lake, as here, the Commissioner had determined in the first instance that the outcome should be the grant of a development consent to the proposed seniors living project.

   270. There, as here, the local council appealed on the basis of what was said to be errors of law in that Commissioner's decision-making process. There, as here, such legal flaws were established. If I was to adopt, in these circumstances, the approach I had taken in Zhiva Living by utilisation of the power available to me pursuant to s 56A(2)(b) of the Court Act to refuse development consent to the Company's proposal, I would be denying it the potential of the benefit of the consent already obtained as a result of the Commissioner's first instance determination.

   271. Under the circumstances, I am satisfied that the appropriate course to follow here is to adopt the approach taken by Preston CJ in Palm Lake.

   272. There, as here, the respondent to the proceedings was seeking to defend the development consent that had been given to it as the outcome of the Commissioner’s merit consideration. Such a development consent, if successfully defended, is a matter of considerable benefit to a development proponent. Equally, loss of such a consent is a considerable detriment. This is a factor to which it is appropriate to give considerable weight in my assessment of the appropriate process outcome in these proceedings.

   273. In taking this approach, I am not to be taken to be expressing any merit opinion concerning this development proposal, merely that it is inappropriate to deny the Company the opportunity to establish that it should continue to have the benefit of a development consent of the type proposed for its site.

   274. In doing so, it is also unnecessary to embark on an exploration (fascinating though that might be) of the propositions advanced by Mr Robertson as to whether or not power exists pursuant to s 39(6) of the Court Act for the Court to grant a fresh Certificate. Nor is it necessary to explore the proposition that, in some fashion not readily able to be discerned, the power available to me pursuant to s 25B of the Court Act to preserve this development consent could be exercised in the circumstances of an appeal against the Commissioner's decision pursuant to s 56A of the Court Act.

   275. Given that, for the reasons set out below, I have concluded that the appropriate outcome of the Commissioner’s decision-making miscarrying is that, and that the appropriate consequence on remitter is that the matter return for proper consideration but to a different Commissioner, the Company will need to resolve the question of the availability of a new Certificate before any fresh, valid development consent could be granted (if this was to become the outcome of the proper merit consideration of the Company’s development proposal). The timing of, and preparation for, such a hearing on remitter are matters to be addressed with the Commissioner to whom the Chief Judge assigns the matter.

An exclusionary remitter?

The Council’s submissions

276. Mr Stafford proposed, as a general proposition, that there should be an exclusionary remitter if the appeal was upheld (unless the Council’s sole success was with respect to Ground 10).

277. Of the bushfire grounds in particular, the Council submitted that Ground 4, involving a failure to give reasons, was a failure which was far from the discrete and narrow failure to give reasons as considered by Robson J in Gary Abrams v The Council of the City of Sydney (No 4) [2019] NSWLEC 71 (Gary Abrams) and held not to warrant an exclusionary remitter (at [70] to [73]).

278. Grounds 6 to 9 involve prejudgement of issues of fact in the course of wrongly applying the law. It is submitted that this situation is analogous to the circumstances founding exclusionary remitter in Initial Action at [136]. Council conceded that success on Ground 10 would not found an exclusionary remitter of itself.

The Company’s submissions

279. Mr Robertson submitted that there was no proper basis mandating an exclusionary remitter

280. He rejected the proposition that an exclusionary remitter would be appropriate if Grounds 1 to 4 and 5 to 9 were upheld. Though the Company conceded that the Commissioner may have created a perception that he would likely approve the proposed development again, Mr Robertson emphasised the distinct difference between that and prejudgement.

281. He also advanced the following propositions:

1. Not every case in which a Commissioner’s decision has been set aside by a s 56A appeal will justify exclusionary remitter: Baulkham Hills Shire Council v Basemount Pty Ltd (2003) 126 LGERA 339 (Basemount) at [23]; and

2. Not in every case in which there has been prejudgement will the proceedings be remitted to a different Commissioner. Such orders must be made “sparingly”: Seltsam v Ghales in Castle Constructions Pty Ltd v North Sydney Council (2007) 155 LGERA 52 at [72]. In order to justify exclusionary remitter, the findings must have “involved pre-judgment of quite a high order”: Basemount at [24].

282. He further submitted that the Council had failed to explain why Ground 4 would justify exclusionary remitter, other than citing that the Commissioner has already decided issues of fact favourably to one party. However, this would be true of any Class 1 appeal. As put by Mr Robertson:

In Gary Abrams v the (sic) Council of the City of Sydney [2019] NSWLEC 71 at [72]-[73] Robson J held that there was no reasonable apprehension that the Commissioner would not decide the case impartially on a remitter, in circumstances where the sole ground for setting aside the Commissioner’s original decision as a failure to give reasons for a discrete finding.

283. Grounds 6 to 10 each involve allegations of narrow misapplication of the statutory framework. It is reasonable to assume that the Commissioner would remake the decision correctly if remitted. Council has not explained why remitter would create a reasonable apprehension of prejudgement.

Consideration

284. In the final analysis, the sole factor that needs to be weighed, in my assessment, is the conventional one addressing the question of the defects in this Commissioner’s decision-making process, as revealed during the course of this appeal, were such that the degree of prejudgement involved disclosed that the initial Commissioner, if the matter was to be remitted to him, would not be able to bring an open mind to the fresh consideration of the matters where his original decision-making process had been shown to be defective.

285. Without undertaking an extensive canvassing of the principles that here arise, it is sufficient that I cite what was said by Robson J in Gary Abrams (a decision relied upon by the Company in these proceeding). His Honour there said (at [72]):

1. … While there may be situations where previous decisions of a judicial officer or commissioner may generate an expectation that they are likely to decide issues adversely to one of the parties, this does not mean that the outstanding issues would be considered other than with an impartial and unprejudiced mind. Further, there are other types of error where an exclusionary remitter order may be appropriate, such as where proceedings have been conducted in such a way as to give rise to a reasonable apprehension of bias, or where there has been a denial of procedural fairness in the determination of proceedings below. …

   286. I am satisfied that the defects in this Commissioner’s decision-making process are sufficiently egregious that public confidence that a further decision-making process would be undertaken in the fair and balanced fashion required, without prejudgement, would not be available to a properly informed lay observer. As a consequence, the flaws revealed in the Commissioner’s decision-making process here involved are ones where there would be a reasonable apprehension of bias if the matter was remitted to him.

   287. Therefore, I am satisfied that an exclusionary remitter is warranted, thus rendering it necessary for the parties to discuss how the future conduct of the remitted Class 1 appeal is to be conducted. To enable this to occur, I do not propose to return the matter to the Registrar's list forthwith but to allow a short period for discussion between the parties before their attendance for the purposes of making further directions for the conduct of the remitted appeal.

Costs

288. I have concluded that the Council has succeeded on Grounds 1, 4 and 10. As the Council succeeded on Ground 1, it was not necessary to address Ground 2. Had it been necessary to do so, I would have upheld Ground 2. The Council has failed on Grounds 3, 5, 6, 7, 8 and 9.

289. In appeals such as these, costs ordinarily follow the event. The practical result of these proceedings, in the sense used in Sze Tu v Lowe (No 2) [2015] NSWCA 91 at [39], the event is that the Council’s appeal has been upheld. However, as it is possible that the Company may wish to propose some alternative costs order because the Council did not enjoy success on all grounds pleaded, provision for that is made, on a contingent basis, in the orders set out below.

Orders

290. The orders of the Court are;

1. The appeal is upheld;

2. The 21 June 2019 decision and 12 July 2019 orders of Commissioner Horton are set aside;

3. Leave is granted to the Respondent to amend the application for development consent to rely on the amended plans that were identified in Condition 1(a) of Annexure A to the decision of Commissioner Horton, being the conditions referred to in [175](3) of the Commissioner’s 12 July 2019 addendum;

4. The matter is set down, on 18 August 2020, before the Registrar for further directions;

5. The proceedings are remitted to a commissioner, other than Commissioner Horton, to be determined according to these reasons for judgment;

6. Unless the Respondent notifies my Associate by 4.30 pm on 14 August 2020 that it wishes to be heard to propose some different costs order, the Respondent is to pay the Applicant's costs of the appeal as agreed or assessed; and

7. The exhibits are returned.

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Decision last updated: 03 August 2020