Peter Weir and Associates Pty Ltd v Parramatta City Council

[2007] NSWLEC 734

Land and Environment Court

of New South Wales

CITATION:	Peter Weir and Associates Pty Ltd v Parramatta City Council [2007] NSWLEC 734
PARTIES:	APPLICANT Peter Weir and Associates Pty Ltd RESPONDENT Parramatta City Council
FILE NUMBER(S):	11065 of 2006
CORAM:	Pain J
KEY ISSUES:	Appeal :- s56A appeal on question of law where development refused is private road bridge over public road - whether Comissioner erred in exercise of jurisdiction in deciding that assessment of long term vision of public art is beyond Court's role - whether Comissioner erred in exercise of jurisdiction in considering leasing arrangements for public space - whether Comissioner took into account irrelevant considerations by considering need for and public use of proposed development.
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 s79C, s97 Land and Environment Court Act 1979 s56A Parramatta City Centre Plan – Development Control Plan Sydney Regional Environmental Plan No 28 - Parramatta
CASES CITED:	Brimbella Pty Limited v Mosman Municipal Council (1985) 79 LGERA 367; Estate Project Development Pty Ltd v City of Sydney Council (2005) 141 LGERA 86; Kentucky Fried Chicken Pty Ltd v Gantidis (1979) 40 LGRA 132; Peter Weir and Associates v Parramatta City Council [2007] NSWLEC 353
DATES OF HEARING:	5 November 2007
DATE OF JUDGMENT:	6 November 2007
LEGAL REPRESENTATIVES:	APPLICANT Mr J Maston SOLICITOR Robinson Legal RESPONDENT Mr T Pickup (Solicitor) SOLICITOR Storey & Gough Solicitors

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Pain J

6 November 2007

11065 of 2006 Peter Weir & Associates Pty Limited v Parramatta City Council

JUDGMENT

1 Her Honour: This is a s 56A appeal under the Land and Environment Court Act 1979 seeking orders that the decision of Commissioner Hussey in Peter Weir and Associates v Parramatta City Council [2007] NSWLEC 353 be set aside. An order that the proceedings be remitted to another commissioner is also sought. Such appeals must identify errors of law in a commissioner’s findings in order to succeed.

2 The Class 1 application concerned a development application for a private cantilevered bridge over the public road Anderson Street, Parramatta made of concrete, steel frame and metal clad sides. In amended plans filed by the Applicant this was altered to include coloured panels and a shape intended as a public art feature.

3 The issues in the amended statement of issues were (relevantly) issues 3, 4, 5, 6, 7 and 9. The Council argued that these issues were relevant to the findings of the Commissioner in relation to streetscape, not just issues 4 and 9 as the Applicant argued. Issue 4 states:

Whether approval should be granted as the proposal does not comply with the objectives of the Parramatta City Centre, as contained in clause 4.2 of the Parramatta City Centre Plan – Development Control Plan (City Centre DCP).
Particulars
The proposed development does not achieve the following objectives:

· objective 4.2.4 – The proposed bridge would not clarify the urban form of the streetscape and would not promote consistency in the building alignments. The proposal would not positively influence the building form and street character as it would represent a dominant foreign feature in the streetscape;

· objective 4.2.5 – The proposed bridge would set an undesirable precedent and would not provide certainty of outcome in relation to future building form.

4 Issue 9 states:

Whether approval should be granted as the proposed development is not in the public interest.
Particulars
The proposed bridge, on balance, would not be in the public interest as the extent of public benefit likely to be achieved with the development would not outweigh the negative visual impact that the proposal would create.

5 Issue 3 was that the proposed bridge would disrupt the continuity of street alignment and would not be compatible with the scale of surrounding buildings contrary to cl 25 of the Sydney Regional Environmental Plan No 28 - Parramatta relating to urban design.

6 Issue 5 was that the proposed bridge would introduce a foreign element, disrupting the continuity of streetscape, and would not strengthen the visual character of the street. It would not comply with cl 6.4 of the City Centre DCP relating to build-to lines and setbacks.

7 Issue 6 stated that the proposed bridge would be contrary to cl 6.5 of the City Centre DCP relating to building articulation.

8 Issue 7 stated that a bridge for the purpose of accessing additional parking was contrary to the objective of minimising methods of accessing off-street parking and retaining streetscape continuity in objective (b) of cl 9.2 of the City Centre DCP relating to the vehicular and service access.

Commissioner’s judgment

9 The Commissioner summarised the issues in the proceedings at [4] as:

· Aesthetic impacts;

· Safety;

· Access, parking and traffic;

· Precedent;

· View impacts.

10 The Commissioner held at [25] - [38] that:

25 Having considered the evidence, submissions and undertaken of view, I am satisfied that this proposal represents a well-designed and attractive vehicle/ pedestrian bridge, which is likely to improve the functions of the associated automotive enterprises. In doing so however, the assessment as to its public artwork contribution to the streetscape/public domain involves a very subjective assessment, ideally resulting in a determination, which reflects broad community expectations.
…

The Commissioner made the finding at [27] that minimal public safety benefits were likely to be achieved; at [28] that the development was a foreign element in the streetscape; at [29] that it had substantial view blocking impacts; and at [34] that there was little concern raised by the precedent issue.

35 In the ultimate, I am satisfied that the proposal is for an attractive, well-designed connection bridge in a highly visible location over Anderson Street. As such, it nevertheless represents a foreign element in the streetscape, which provides major functional benefits for the private automotive operators but minimal public (safety, usage, minimisation of vehicular entrances) benefits except for any "public artworks" contribution to the streetscape.

36 Prior to the granting of consent for the exclusive use of this airspace, it would seem reasonable to consider other management initiatives to show how the functional requirements for these separate properties may otherwise be achieved. The lack of these details does not adequately satisfy the ‘highly specific circumstances’ referred to by Mr Harrison, in my assessment.

37 According to the urban structure controls contained in clause 4.2 of the DCP, the objective is to ensure a high level of environmental amenity in the public domain, which may be enriched with artworks. However it seems to me that the controls also require these artworks to interpret Parramatta's historic, cultural and social identity. In my opinion, the evidence before the Court does not satisfy this requirement so as to represent a reasonable balance between competing private and public interest, so as to merit approval of this proposal.

38 As I stated initially, the determination of the merits of this proposal depends on a subjective assessment whereby other public interest benefits may arise due to some more detailed longer-term vision of public artwork contributions and the leasing arrangements of areas of the public domain, including airspace. However these public policy issues are beyond the Court's role.

Grounds of appeal

11 Five grounds were identified in the amended grounds of this s 56A appeal. Grounds 2 and 3 raise the same issue and will be considered together. Ground 5 does not arise as a separate ground but rather identified the error of law in grounds 1 and 2/3. I do not need to consider ground 5 separately.

Ground 1

12 Ground 1 in the Applicant’s amended grounds of appeal states that:

The Commissioner erred in law in holding that determination of the public policy issues as to the longer-term vision for public artwork contributions in developments in Parramatta was beyond the Court’s role.

13 According to the Applicant, the legal error is that the Commissioner erred in determining the scope of the jurisdiction he had to exercise.

Applicant’s submissions

14 There is legal error disclosed at [37] and [38] as the Commissioner has misdirected himself as to jurisdiction. The issues in the case required him to consider the benefits of the public artwork aspects of the proposal. He erred when he declined to do so by failing to exercise his jurisdiction.

15 The Commissioner was bound to make the “very subjective assessment” ([25]) or the “subjective assessment” [[38]) referred to. It related to the appearance of the proposed building works and the issue of public art contributions referred to in the planning instruments and clearly fell within the relevant matters for consideration under s 79C of the Environmental Planning and Assessment Act 1979.

16 He treated the requirement for artworks to interpret Parramatta’s identity as part of a reasonable balance between competing private and public interest (at [37]). This indicates, consistently with the preceding paragraphs of the conclusions, that the Commissioner was weighing the competing private and public interests. Public benefit by way of “public artworks” contribution in a streetscape was on the positive side and the competing private use of the airspace was in the counterbalance. On that basis, [37] of the judgment is dealing with the question of the public interest of the development as a whole.

Council’s submissions

17 The judgment shows that the Commissioner did consider the merits of the public art work in [30], [31] and [35]. He balanced this against other considerations of the impact on traffic safety ([27]), streetscape ([28]) and views ([29]). He notes at [30] that little guidance is provided about the assessment of the public artwork contribution of the structure apart from cl 11.3 in the DCP and cl 4.2.4. He does make a finding of fact on the quality of the artwork.

Finding on ground 1

18 A reading of the whole judgment demonstrates that the Commissioner did consider the evidence of the public artwork aspects of the proposal (see [31], [32] of judgment). When he weighed this issue against other issues (traffic safety [27], streetscape [28] and views [29]) he concluded at [35] that the proposed bridge should not be approved.

19 The determinative paragraph in the judgment is [35]. Paragraphs [36], [37] and [38] are obiter in my view. While the meaning of [37] is not entirely clear in the context of the Commissioner’s conclusions I consider it is not determinative of the merit issues in the appeal but is the Commissioner’s obiter response to matters put before him. As identified in Brimbella Pty Limited v Mosman Municipal Council (1985) 79 LGERA 367 per Kirby P at 368 ( McHugh JA concurring) it is not appropriate in an appeal from a lay tribunal on a question of law to examine words in a judgment too narrowly. The qualifying words of Kirby P “unless the works are central to the decision involved” are not applicable in the context of this judgment.

20 I agree with the Council’s submissions that the reference to public artwork in [38] reflects the issue raised in [30] that there is little evidence provided to assist in assessing public artworks. Paragraph [38] refers to the need for a “more detailed longer term vision of public artwork contributions” reflecting the lack of guidance which he referred to at [30]. That obiter reference does not give rise to a finding that the Commissioner erred in the exercise of his jurisdiction in this Class 1 appeal. This ground of appeal fails.

Grounds 2 and 3

21 Grounds 2 and 3 in the Applicant’s amended grounds of appeal state that:

The Commissioner erred in law in holding that the merits of the proposed development depended upon a subjective assessment of the public policy issue of the leasing arrangements of areas of the public domain, including airspace.
The Commissioner erred in law in deciding that the leasing arrangements for areas of public domain in the ownership of the respondent were relevant matters to take into consideration pursuant to s 79C of the Environmental Planning and Assessment Act 1979.

22 According to the Applicant, the legal error is that the Commissioner erred in determining the scope of the jurisdiction he had to exercise.

Applicant’s submissions

23 The Applicant submitted the Commissioner erred in his findings at [36] and [37] because these paragraphs indicate that he did consider that the proposed bridge would be leased for private purposes. In [36] the Commissioner states that “prior to the granting of consent for the exclusive use of this airspace…”. This paragraph confuses the grant of development consent and the grant of right for the exclusive use of the roadway air space. The Commissioner intended to consider other ways of the separate properties operating before he granted consent. This error continues in [37] which refers to the need to balance competing private and public interests. According to the Applicant, [38] indicated that the Commissioner considered the merit assessment of the proposal depended on a subjective assessment of leasing arrangements of the public domain. These errors mean that the Commissioner misconceived his jurisdiction in this appeal.

24 This submission is supported by Estate Project Development Pty Ltd v City of Sydney Council (2005) 141 LGERA 86. It is not part of the Commissioner’s function under s 79C to consider the desirability of granting to a private developer an interest in the use of public airspace. That is an issue that arises when an application to lease that space is made to the Council under the Roads Act 1993.

Council’s submissions

25 There is no error of law as the Commissioner was engaged in the usual merit assessment process which is required under s 79C.

Finding on ground 2/3

26 Estate Project concerned whether in a s 97 merit appeal the Court could give owner’s consent in the absence of the council doing so as the owner of a public road. Parts of a road were required to be closed for the development application in issue during the construction phase. McClellan J held that the Court could exercise the function of the council as owner of the road for the limited purpose of considering the development application. He stated at [22] that any application concerning the Roads Act was a separate matter and the Court was not exercising any power under that Act in the s 97 appeal.

27 I do not consider that Estate Project is authority for the broader proposition for which it is relied on by the Applicant’s counsel that in a merit appeal there can be no consideration of the private use of public space separate from any consideration of a lease of that public road under the Roads Act. Estate Project dealt only with the issue of owner’s consent. There is no basis to apply the decision beyond its facts as the Applicant has argued. In this case the Council gave its owner’s consent to this development application. In the draft conditions of consent there was a deferred commencement condition which required that the consent not become operative until the Applicant had agreement for the use of airspace over Anderson Street. The Commissioner would have been well aware that he was not dealing with any issues under the Roads Act.

28 The fact that this was a private proposal for use of public airspace for a traffic bridge was clearly and appropriately before the Commissioner. Paragraph [26] reflects the Commissioner’s factual finding of the purpose of the bridge, as identified by the Applicant, a relevant matter in the context of this merits assessment.

29 Paragraph [35] is the determinative paragraph in the judgment and demonstrates the Commissioner was weighing up the various merit issues raised by the evidence before him. As already stated in relation to ground 1, [36] – [38] are obiter and do not form part of the Commissioner’s analysis of the planning merits of the proposal which culminated in [35]. In relation to [36] I agree with the Council that that is a response by the Commissioner to the evidence of Mr Harrison as identified at [21]. I note that in [38] the Commissioner states that leasing arrangements of areas of public domain are public policy issues beyond the Court’s role. There is no error of law in terms of a failure to properly exercise jurisdiction by the Commissioner. These grounds of appeal must fail.

Ground 4

30 Ground 4 in the amended grounds of appeal states:

The Commissioner had erred in law by taking into account irrelevant considerations, namely the need for the development and the extent of public usage of the development.

Applicant’s submissions

31 The Applicant’s submissions focussed on the argument that the need for the development was self evidently a material consideration in the Commissioner’s decision given the wording of [36] and [37]. As this issue had the capacity to be determinative, and was central to the Commissioner’s consideration, he committed an error of law because the matter was irrelevant to his decision.

32 This approach is also in breach of findings in Kentucky Fried Chicken Pty Ltd v Gantidis (1979) 40 LGRA 132 that the economic effect of a development should not be considered. Consideration under s 79C requires analysis of town planning issues not economic issues. The need for the development would be considered in any application made under the Roads Act. In [24] the Commissioner referred to the question of whether the number of traffic movements justified the construction of a private bridge. This shows the error by the Commissioner. (As the Council identified [24] is the Commissioner’s summary of the evidence of the Council’s planner.) The issue of justification for the project was not an issue raised in the amended statement of issues.

33 The Commissioner did not determine the appeal on the basis of issues 4, 5, 7 or 8 leaving only issue 9 (public interest). His reasoning in [37] – [38] shows that he did consider his role was to balance the private interests of the developer in using public airspace for a bridge against the public interest benefits.

Council’s submissions

34 The Commissioner did not base his decision on the need for the development. Rather he focussed on whether the proposal would minimise traffic and pedestrian conflicts at street level, see [1]. The Applicant advised the Commissioner of the purpose of the development in its evidence and he was invited to determine the proposal in light of its stated purpose. The Commissioner considered the merits of the development in that light. The factors he considered when weighing up the merits were based on the evidence before him. The impact of streetscape is raised by issues 3, 4, 5, 6 and 7 and the Commissioner had regard to these issues in determining the appeal in addition to issue 9 (public interest).

Finding

35 When the whole of the Commissioner’s decision is considered, particularly the concluding section from [25] onwards, this ground of appeal is not made out. I accept the Council’s submissions set out above in par 35. In particular I consider the primary matters on which, inter alia, the Commissioner determined the appeal was the impact on streetscape and views, as is raised in issues 3, 4, 5, 6, 7 and 9. He also considered whether the proposal would have positive public safety benefits in terms of traffic and pedestrian use of the public road.

36 Paragraphs [36] and [37] which were relied on as the main “offending” paragraphs by the Applicant are obiter and have no legally binding effect. Paragraph [36] appears to be responsive to the evidence of Mr Harrison summarised at [24]. I do not consider the error of considering the need for the development permeates the whole decision of the Commissioner as the Applicant submitted.

37 Further, the findings in Kentucky have no application in this case. No error of law is disclosed and this ground of appeal must fail.

38 As the Applicant has been unsuccessful in this appeal it should be dismissed. Costs in s 56A appeals are generally awarded on the basis of costs following the event. The Council has been successful and should have its costs.

Orders

39 The Court makes the following orders:

1. The appeal is dismissed.
2. The Applicant must pay the Council’s costs as agreed or assessed.
3. Exhibits to be returned.