Randwick City Council v Micaul Holdings Pty Ltd

[2016] NSWLEC 7

Land and Environment Court

New South Wales

Medium Neutral Citation:	Randwick City Council v Micaul Holdings Pty Ltd [2016] NSWLEC 7
Hearing dates:	16 February 2016
Date of orders:	19 February 2016
Decision date:	19 February 2016
Jurisdiction:	Class 1
Before:	Preston CJ
Decision:	(1)   The appeal is dismissed.  (2)   The applicant is to pay the respondent’s costs of this appeal.
Catchwords:	APPEAL – appeal against Commissioner’s decision on questions of law – grant of consent to development that contravenes development standards – written request justifying contravention – Commissioner’s satisfaction of required matters to justify contravention – whether development consistent with objectives of development standards and zone – whether Commissioner so satisfied – whether adequate reasons given for being so satisfied – whether compliance with development standards was unreasonable or unnecessary – whether Commissioner gave adequate reasons for being so satisfied – non-compliance with control in development control plan – whether principal contested issue requiring resolution and reasons
Legislation Cited:	Land and Environment Court Act 1979 s 56A
Cases Cited:	Micaul Holdings Pty Limited v Randwick City Council [2015] NSWLEC 1386 Segal v Waverley Council [2005] NSWCA 310; (2005) 64 NSWLR 177 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
Category:	Principal judgment
Parties:	Randwick City Council (Applicant) Micaul Holdings Pty Ltd (Respondent)
Representation:	Counsel: Mr A M Pickles SC (Applicant) Mr I J Hemmings SC (Respondent)   Solicitors: Norton Rose Fulbright (Applicant) Apex Planning and Environment Law (Respondent)
File Number(s):	10903 of 2015
Publication restriction:	No
Decision under appeal	Court or tribunal: Land and Environment Court Jurisdiction: Class 1 Citation: Micaul Holdings Pty Limited v Randwick City Council [2015] NSWLEC 1386 Date of Decision: 25 August 2015 Before: Commissioner Morris File Number(s): 10170 of 2015

Judgment

A commissioner’s decision is appealed on questions of law

1. Randwick City Council (‘the Council’) appeals against a decision of a commissioner of this Court to uphold an appeal by Micaul Holdings Pty Ltd (‘Micaul’) and to grant development consent for the demolition of existing buildings, tree removal and construction of a residential flat building (‘the development’) at 293-297 Alison Road, Coogee (‘the land’). The Commissioner delivered written reasons for her decision: Micaul Holdings Pty Ltd v Randwick City Council [2015] NSWLEC 1386. The appeal under s 56A of the Land and Environment Court Act 1979 is limited to questions of law.

2. The Council contended the Commissioner erred in law in three main respects:

1. the Commissioner failed to be satisfied as required by cl 4.6(4)(a)(ii) of Randwick Local Environmental Plan 2012 (‘Randwick LEP’) that the development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out (ground 1);

2. the Commissioner failed to give any reasons for concluding:

1. that it was unreasonable or unnecessary for the development to comply with the standards for building height and floor space ratio under Randwick LEP; and

2. that the development will be in the public interest because it is consistent with the objectives of the particular standards and the objectives for development within the zone in which the development is proposed to be carried out (ground 2(i) and (ii)); and

3. the Commissioner failed to consider the wall height control in cl 4.4 of Randwick Development Control Plan 2013 (‘Randwick DCP’) (ground 3).

3. The alleged errors of law, therefore, fall into three categories: failure to be satisfied about a precondition to the exercise of the power to grant development consent (ground 1); failure to give reasons about alleged primary contested issues (ground 2); and failure to consider an alleged relevant matter (ground 3).

Ground 1: Satisfaction about a precondition

4. The land on which the development was proposed to be carried out was zoned R3 Medium Density Residential (‘R3 zone’) under Randwick LEP. The Land Use Table in Randwick LEP specified for the R3 zone that development for the purpose of residential flat building was permissible with consent and specified the objectives of the R3 zone. Part 4 of Randwick LEP contains the principal development standards, of which the height of building standard in cl 4.3 (‘building height standard’) and the floor space ratio standard in cl 4.4 (‘FSR standard’) were relevant to the development on the land. The maximum height of buildings for the land was 9.5m and the maximum floor space ratio was 0.75:1.

5. The development proposed would contravene each of these development standards in certain respects. Accordingly, Micaul made two written requests under cl 4.6 of Randwick LEP seeking to justify the contravention of each of the building height standard and the FSR standard (‘the cl 4.6 objections’). The cl 4.6 objections were tendered in evidence before the Commissioner.

6. Clause 4.6 of Randwick LEP, so far as is relevant, provides as follows:

(1)   The objectives of this clause are as follows:

(a)   to provide an appropriate degree of flexibility in applying certain development standards to particular development,

(b)   to achieve better outcomes for and from development by allowing flexibility in particular circumstances.

(2)   Development consent may, subject to this clause, be granted for development even though the development would contravene a development standard imposed by this or any other environmental planning instrument. However, this clause does not apply to a development standard that is expressly excluded from the operation of this clause.

(3)   Development consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating:

(a)   that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and

(b)   that there are sufficient environmental planning grounds to justify contravening the development standard.

(4)   Development consent must not be granted for development that contravenes a development standard unless:

(a)   the consent authority is satisfied that:

(i)   the applicant’s written request has adequately addressed the matters required to be demonstrated by subclause (3), and

(ii)   the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, and

(b)   the concurrence of the Secretary has been obtained.

(5)   In deciding whether to grant concurrence, the Secretary must consider:

(a)   whether contravention of the development standard raises any matter of significance for State or regional environmental planning, and

(b)   the public benefit of maintaining the development standard, and

(c)   any other matters required to be taken into consideration by the Secretary before granting concurrence.

7. Under cl 4.6, therefore, the Commissioner, exercising the functions of the consent authority on the appeal, had power to grant development consent to the development even though the development would contravene the building height standard and FSR standard. However, the Commissioner could not grant development consent for the development unless the Commissioner considered the cl 4.6 objections (the requirement in cl 4.6(3)) and was satisfied that, first, the cl 4.6 objections adequately addressed the matters required to be demonstrated by cl 4.6(3) (the requirement in cl 4.6(4)(a)(i)) and, second, the development will be in the public interest because it is consistent with the objectives of the height standard and the FSR standard and the objectives for development with in the R3 zone in which the development is proposed to be carried out (the requirement in cl 4.6(4)(a)(ii)).

8. The Council’s first ground of appeal was that the Commissioner did not, in fact, form the satisfaction required by cl 4.6(4)(a)(ii) that the development will be in the public interest because it is consistent with the objectives of the building height standard and the FSR standard and the objectives of the R3 zone.

9. The Council submitted that the Commissioner’s reasons for judgment did not disclose that she had formed the required satisfaction about this matter. The Council noted that unless the Commissioner was so satisfied, the Commissioner had no power to grant development consent to the development.

10. Micaul joined issue with the Council’s submission, saying that a fair reading of the Commissioner’s reasons for judgment established that the Commissioner did in fact form the requisite satisfaction about the matter in cl 4.6(4)(a)(ii).

11. I agree with Micaul’s submission that the Commissioner’s reasons for judgment reveal that the Commissioner was satisfied about the matter in cl 4.6(4)(a)(ii). The Commissioner’s process of reasoning on this matter can be summarised as follows:

1. The development exceeded both the building height standard and the FSR standard: at [25].

2. Mr Betros (the town planner for Micaul) had prepared two written requests under cl 4.6 of Randwick LEP seeking to justify the contraventions of the building height standard and the FSR standard (the cl 4.6 objections): at [25] and [32].

3. The Commissioner summarised the cl 4.6 objections at [52]-[55]. The Commissioner noted that “because the objectives of particular development standards are similar, the objections are also similar in terms and matters argued”: at [52]. Clause 4.6(3) requires a written request that seeks to justify the contravention of a development standard to demonstrate two things: first, compliance with the development standard is unreasonable or unnecessary in the circumstances of the case (cl 4.6(3)(a)) and, second, there are sufficient environmental planning grounds to justify contravening the development standard (cl 4.6(3)(b)). To this end, the Commissioner summarised the reasons the cl 4.6 objections gave for why compliance with the two development standards was unreasonable and unnecessary (at [52] and [53]) and why there were sufficient environmental planning grounds to justify contravening the development standard (at [54]). The Commissioner also recorded that the cl 4.6 objections concluded that “the development is consistent with the objectives of the zone and the development standards” (at [55]), this being the matter in cl 4.6(4)(a)(ii) about which the Commissioner was required to be satisfied.

4. The Commissioner observed that cl 4.6 “imposes a precondition to a consent authority exercising the power to grant consent to development on land to which the clause applies and if I am not satisfied that the provisions of the clause are met, consent cannot be granted”: at [56].

5. The Commissioner quoted the relevant parts of cl 4.6: at [57].

6. The Commissioner discerned that cl 4.6 imposes four tests:

This imposes a number of tests, the first that compliance with the development standard must be unreasonable or unnecessary in the circumstances of the case, the second that there are sufficient environmental planning grounds to justify contravening the development standard, the third that the applicant’s written request has adequately addressed the matters required to be demonstrated by subclause (3) and the fourth, that the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out. In addition, satisfaction of those matters that must be considered by the Secretary in determining whether concurrence should be granted is required: at [58].

7. The Commissioner stated that she was satisfied that these tests (including the fourth test which is the matter in cl 4.6(4)(a)(ii)) had been met:

Having regard to the evidence and in particular to the written objections prepared, I am satisfied that these tests have been met. The site is unusual in terms of its location at the lowpoint of the locality, its proximity to larger RFBs that would not comply with the building height development standard and its flood affectation. These constraints provide sufficient environmental planning grounds when considered with the issues raised in Mr Betros’ written objection to justify an exception to both the FSR and building height control. I do not consider, in the circumstances of the case that it is necessary to comply with those standards and that adequate reasons have been provided for the exception: at [59];

8. The Commissioner later made two more comments that she was satisfied under cl 4.6 so as to be able to grant development consent. First, the Commissioner stated in [60] “having found the precondition to consent is met” and, second, the Commissioner stated in [61] “having found that it is appropriate to vary the building height and FSR controls”.

12. These reasons reveal that the Commissioner was satisfied as to the matter in cl 4.6(4)(a)(ii), this being what the Commissioner referred to as her fourth test, which she said had been met. I reject ground 1.

Ground 2: Reasons for being satisfied of two matters

13. The applicant’s second ground was that the Commissioner failed to give reasons for two of her conclusions: first, that it was unreasonable or unnecessary for the development to comply with the building height standard and FSR standard (ground 2(i)) and, second, that the development was in the public interest because it was consistent with the objectives of the building height standard and FSR standard and the objectives of the R3 zone (ground 2(ii)). I will deal with ground 2(ii) before ground 2(i).

Reasons for consistency with objectives

14. Ground 2(ii) was in the alternative to ground 1. If the Commissioner did form the required satisfaction about the matter in cl 4.6(4)(a)(ii), the Council contended that the Commissioner did not give reasons for being so satisfied. The Council submitted that the Commissioner had a duty to make specific findings of fact to ground the power to grant consent and where the ultimate finding of fact is dependent on the application of a legal standard: Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 273, 281. This was the case here as the Commissioner had to make findings under and had to apply the legal standards in cl 4.6.

15. The Council submitted that [59] of the Commissioner’s reasons dealt with other matters required to be addressed under cl 4.6, but not the matter in cl 4.6(4)(a)(ii). The first sentence in [59] is a broad encompassing conclusion without reasons. The second sentence of [59] records findings of fact that are the foundation of the conclusion in the third sentence that there are sufficient environmental planning grounds to justify contravening the development standards. The second and third sentences and the second part of the fourth sentence record the Commissioner’s finding of satisfaction under cl 4.6(4)(a)(i) that Micaul’s written request adequately addressed the matter in cl 4.6(3)(b) that there were sufficient environmental planning grounds to justify contravening the building height standard and the FSR standard.

16. The Council submitted that the first part of the fourth sentence of [59] might possibly record the Commissioner’s finding that it was not necessary to comply with the building height standard or the FSR standard, but this was not the finding of satisfaction required by cl 4.6(4)(a)(ii). The Commissioner did not find that compliance with those standards was not necessary because the development would nevertheless be consistent with the objectives of the development standards and the objectives of the zone in which the development was proposed to be carried out.

17. The Council accepted that the Commissioner did set out the requirement of cl 4.6(4)(a)(ii), both by quoting it (in [57]) and in observing that it was a precondition or a test that must be met before consent could be granted (in [56] and [58]), and that the Commissioner also set out the objectives of the building height standard and the FSR standard (in [24]) and the objectives for development within the applicable R3 zone (in [23]). However, the Council submitted, the Commissioner did not expressly address the terms or effect of clause 4.6(4)(a)(ii) or the objectives of the applicable development standards or zone in her reasons for finding (in [59]) that she was satisfied that the tests had been met.

18. Micaul submitted that, when the Commissioner’s reasons are read fairly and as a whole, the Commissioner does provide sufficient reasons for her finding that she was satisfied about the matter in cl 4.6(4)(a)(ii). Micaul summarised the Commissioner’s process of reasoning in a similar manner to the summary I have earlier provided in dealing with ground 1. This process of reasoning, Micaul submitted, revealed that the Commissioner asked herself the correct question, set out the evidence she relied on to answer the question, and adequately exposed her reasoning for answering the question.

19. I find that the Council has not established that the Commissioner’s reasons for her finding that she was satisfied about the matter in cl 4.6(4)(a)(ii) was inadequate in law. I consider that it is sufficiently clear that the Commissioner was satisfied about the matter in cl 4.6(4)(a)(ii) for the reasons provided in the cl 4.6 objections. Impliedly, the Commissioner adopted the reasons in the cl 4.6 objections as her reasons.

20. The cl 4.6 objections were in evidence, both before the Commissioner and on this appeal. In each objection to the development standard, there was a section entitled:

4.   The proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out – cl 4.6(4)(a)(ii).

21. In each of these sections of the cl 4.6 objections, each of the objectives of the relevant development standard (the building height standard and the FSR standard) were set out and the consistency of the development with each objective assessed. This analytical process was repeated for the objectives of the R3 zone: the objectives were set out and the consistency of the development with the objectives assessed. The cl 4.6 objections each concluded in similar terms:

This Clause 4.6 variation has also demonstrated that the proposed [height/floor space] satisfies the objectives for both the zone and [height/floor space] standard, thereby confirming that the proposed [height/floor space] is in the public interest.

22. The Commissioner noted that the cl 4.6 objections had been made and, as required by cl 4.6(3), considered them. The Commissioner summarised the matters the cl 4.6 objections addressed (in [52]-[55]) and noted the conclusion that the development is consistent with the objectives of the zone and the development standards (at [55]).

23. The Commissioner expressly recorded that she was required to be satisfied that the development will be in the public interest because it is consistent with the objectives of the particular standards and the objectives for development within the zone in which the development is proposed to be carried out (at [58]). This was stated to be the fourth of the tests that must be met. The Commissioner stated that she was satisfied that these tests (including relevantly the fourth test) had been met “having regard to the evidence and in particular to the written objections prepared” (at [59]). The expression “having regard to” the written objections prepared was not used by the Commissioner in the sense that she merely referred to the written objections, but rather that the written objections were the basis for the Commissioner’s satisfaction that the tests had been met.

22. This is supported by the Commissioner’s subsequent statements in [59] of her reasons that “the issues raised in Mr Betros’ written objection to justify an exception to both the FSR and building height control” and that “adequate reasons have been provided for the exception”. The Commissioner in these statements is expressing her agreement and adoption of the reasons in the cl 4.6 objection.

23. On a fair reading of the Commissioner’s reasons, the Commissioner has explained that she was satisfied as to the matter in cl 4.6(4)(a)(ii) for the reasons given in the cl 4.6 objections. This is sufficient in law. I reject ground 2(ii).

Reasons for compliance being unreasonable or unnecessary

26. The second matter in respect of which the Council contended that the Commissioner did not give adequate reasons was the matter in cl 4.6(3)(a). The Council submitted that the Commissioner said nothing in her reasons for judgment about why compliance with the building height standard or FSR standard was unnecessary or unreasonable in the circumstances of the case.

27. The Council submitted that when the Commissioner’s reasons in [59] are scrutinised, it is clear that the reasons address the matter in cl 4.6(3)(b) of whether there are sufficient environmental planning grounds to justify contravening the development standards, but these cannot be equated with demonstrating that compliance with the development standards is unreasonable or unnecessary, being the matter in cl 4.6(3)(a)). Although in the last sentence of [59] the Commissioner said she “did not consider in the circumstances of the case that it is necessary to comply with those standards”, no reasons are given for that finding.

28. The Council submitted that the summary the Commissioner gave in [52] of the cl 4.6 objections also does not illuminate any reasons demonstrating that compliance with the development standards was unreasonable or unnecessary. All of the criteria the Commissioner identified (in [52]) are merit considerations that amount to no more than establishing an absence of environmental harm. The summary of the cl 4.6 objections does not identify a basis on which it would be accepted, on the established tests, that compliance was unreasonable or unnecessary.

29. Micaul firstly submitted that on a fair reading of the judgment, the Commissioner did conclude that compliance with each of the building height standard and FSR standard was unreasonable or unnecessary in the circumstances of the case and gave adequate reasons for that conclusion. The Commissioner’s process of reasoning was similar to that undertaken for the matter in cl 4.6(4)(a)(ii).

30. The Commissioner acknowledged that cl 4.6 operates as a precondition to the exercise of power and that, unless satisfied, consent cannot be granted: at [56]. The Commissioner quoted the relevant parts of cl 4.6: at [57]. The Commissioner identified the question under cl 4.6(3)(a) of whether compliance with the development standards is unreasonable or unnecessary in the circumstances of the case as being the first of her four tests that must be satisfied: at [58].

31. The Commissioner considered the cl 4.6 objections to compliance with the building height standard and the FSR standard and summarised the objections: at [52]-[55]. In particular, the Commissioner noted that the cl 4.6 objections said that “compliance with the development standards is unreasonable or unnecessary following an assessment of the proposal against a number of criteria …”: at [52]. Each cl 4.6 objection had a section entitled “1. Compliance where the development standard is unreasonable or unnecessary in the circumstances of the case – cl 4.6(3)(a)”, which demonstrated the reasons why compliance with the development standard was unreasonable or unnecessary. As the Commissioner recorded in [52], each cl 4.6 objection, in establishing that compliance with the relevant development standard was unreasonable or unnecessary in the circumstances of the case, assessed the development and the development standard against identified criteria. The cl 4.6 objections stated that “the following assessment demonstrates that the proposed [height/floor space] satisfies each of these criteria which is considered to form a reasonable and appropriate basis that the [height/floor space ratio] standard is unreasonable and unnecessary in the circumstances of this application”. Over eight pages, each cl 4.6 objection assessed the development and the development standard against these criteria. The Commissioner summarised this assessment against these criteria in [52].

32. The Commissioner then expressed her satisfaction that the tests (including the first test of whether compliance with the development standard was unreasonable or unnecessary in the circumstances of the case), have been met “having regard to the evidence and in particular the written objections prepared”: at [59].

33. Micaul submitted that this reasoning is adequate in law.

34. Second, Micaul responded to the Council’s submission that the criteria used to assess whether compliance with the development standards was unreasonable or unnecessary in the cl 4.6 objections and in the summary by the Commissioner in [52] were not merely merit considerations of absence of environmental harm that could not demonstrate that compliance was unreasonable or unnecessary. One of the established tests to demonstrate that compliance with a development standard is unreasonable or unnecessary is if the development is consistent with the objectives of the development standard. The objectives of the building height standard and the FSR standard (which the Commissioner set out in [24]) included ensuring that the development does not cause environmental harm (such as adversely impacting on the amenity of adjoining and neighbouring land). Hence, establishing that the development would not cause environmental harm and is consistent with the objectives of the development standards is an established means of demonstrating that compliance with the development standard is unreasonable or unnecessary.

35. Third, Micaul submitted that the Commissioner was only required to give reasons on the principal contested issues: Segal v Waverley Council [2005] NSWCA 310; (2005) 64 NSWLR 177. The principal contested issues were those identified in the Council’s Amended Statement of Facts and Contentions. The Council contended in contentions 1 and 2 that the development application should be refused because the development application exceeds the building height standard and the FSR standard and the accompanying cl 4.6 variation requests were not well founded. The particulars to each contention identified three reasons for the Council’s contentions. They addressed the grounds advanced by Micaul in the cl 4.6 objections that the underlying objectives of the standards are achieved, the development is consistent with the objectives of the R3 zone and the development achieves a better planning outcome than a compliant scheme. The Council did not particularise as a reason for contentions 1 or 2 that Micaul’s request to vary the building height standard or the FSR standard, via cl 4.6, on the ground that compliance is unreasonable or unnecessary in the circumstances of the case was not well founded and no reference was made to cl 4.6(3)(a).

36. Accordingly, Micaul submitted, the determination of the question in cl 4.6(3)(a) was not of itself, and did not form part of, a principal contested issue. The Commissioner was not under a duty to give reasons in relation to a question that was not a principal contested issue.

37. I agree with Micaul’s submissions, for the reasons it gives, which I adopt. The Council has not established that the Commissioner failed to give adequate reasons to a principal contested issue.

38. I add a further reason concerning the matters about which the Commissioner needed to give reasons. The matters about which the Commissioner was obliged to be satisfied before being able to grant development consent for the development were those in cl 4.6(4)(a). One of these matters is that “the applicant’s written request has adequately addressed the matters required to be demonstrated by subclause (3)”. The two matters in subclause (3) are that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case (para (a)) and that there are sufficient environmental planning grounds to justify contravening the development standard (para (b)).

39. Hence, the Commissioner did not have to be satisfied directly that compliance with each development standard is unreasonable or unnecessary in the circumstances of the case, but only indirectly by being satisfied that the applicant’s written request has adequately addressed the matter in subclause (3)(a) that compliance with each development standard is unreasonable or unnecessary.

40. The Commissioner’s reasons for judgment need to be scrutinised with this correct inquiry in mind. The Council needed to establish that the Commissioner did not provide adequate reasons for concluding that Micaul’s cl 4.6 objections adequately addressed the matter of whether compliance with the relevant development standard is unreasonable or unnecessary in the circumstances of the case. I find that the Council has not established that the Commissioner’s reasons were inadequate in law in this regard.

41. As Micaul submitted, the Commissioner found that the cl 4.6 objections demonstrated that compliance was unreasonable or unnecessary and summarised the assessment in the objections that demonstrated this matter (in [52]-[55] of her reasons). The Commissioner found that, having regard to in particular the cl 4.6 objections, the test that compliance with the development standards must be unreasonable or unnecessary in the circumstances of the case had been met (at [59]). The Commissioner stated that she did “not consider, in the circumstances of the case, that it is necessary to comply with those standards and that adequate reasons have been provided for the exception” (meaning the exception to compliance with the development standards): at [59]. These reasons are sufficient to explain why the Commissioner was satisfied that the cl 4.6 objections adequately addressed the mater required to be demonstrated by subclause (3)(a) that compliance with the development standards is unreasonable or unnecessary in the circumstances of the case.

42. I reject ground 2(i).

Ground 3: Non-consideration of wall height control

43. The Council’s third ground was that the Commissioner failed to consider the relevant matter of the wall height control in cl 4.4 of Randwick DCP. The development would exceed the external wall height control on certain elevations. The Council submitted that under s 79C(1)(a)(iii) of the Environmental Planning and Assessment Act 1979 (‘EPA Act’), the Commissioner was bound to consider the wall height control in cl 4.4 of Randwick DCP, although the Commissioner could be flexible and was not bound to strictly apply the wall height control by reason of s 79C(3A)(b) of the EPA Act.

44. The Council submitted that the wall height control was raised as an issue in the proceedings. Contention 1 of Council’s Amended Statement of Facts and Contentions related to building height and one of the particulars given for the Council’s contentions that the application should be refused, because the development exceeds the building height standard in Randwick LEP and the accompanying cl 4.6 objection was not well founded, was that the northern and southern buildings of the development exceeded the external wall height control in Randwick DCP and “the application does not demonstrate how the objectives of that control are achieved, particularly relative to a compliant design, in terms of overshadowing to Nos 2-6 Abbott Street”.

45. The Council submitted that the Commissioner (at [61]) made a sweeping statement to the effect that “where there is non-compliance with DCP controls, that is not a reason to refuse consent”. However, the Council submitted, the Commissioner did not address the evidence on the issue of the wall height control or its relevance to an assessment of the wall height or any submissions regarding the wall height control.

46. Micaul’s response was that non-compliance with the wall height control in cl 4.4 of Randwick DCP was not a principal contested issue for two reasons: first, it was not raised as an issue in itself in the Council’s Amended Statement of Facts and Contentions and, second, in any event, the issue was resolved by the experts so as to no longer be in contest. Hence, the Commissioner was not obliged to give reasons in relation to the issue.

47. As to the first, Micaul submitted that the Council did not raise non-compliance of the development with the wall height control in cl 4.4 of Randwick DCP as a separate contention. It was only referred to as a particular to contention 1 that the application should be refused if the development exceeds the different control of the building height standard in the different environmental planning instrument of Randwick LEP and the accompanying cl 4.6 objection to compliance with that standard was not well founded, and in particular to the sub-contention that Micaul’s request to vary the building height standard in Randwick LEP on the ground that the underlying objectives of that building height standard are achieved was not well founded. Logically, non-compliance with the quite different wall height control in cl 4.4 of the different Randwick DCP could never be a particular of the contention concerning non-compliance with the building height standard in Randwick LEP. In any event, however, the particular concerning non-compliance with the wall height control in Randwick DCP had no independent existence other than to support the Council’s argument that the cl 4.6 objection to compliance with the building height standard in Randwick LEP was not well founded.

48. As to the second, Micaul submitted that the issue concerning non-compliance with the wall height control in the Randwick DCP was resolved by the end of the hearing before the Commissioner. The particular to contention 1 that noted that the development did not comply with the wall height control in Randwick DCP only contended that the application “does not demonstrate how the objectives of that control are achieved … in terms of overshadowing to Nos 2-6 Abbott St”. This concern about non-compliance was limited to overshadowing to Nos 2-6 Abbott St. This contention was repeated in contention 8 that “insufficient information has been provided to determine the extent of overshadowing of units within adjoining Nos 2-6 Abbott Street”.

49. The parties’ experts subsequently jointly conferred and produced an experts’ joint report (which was tendered as exhibit 4 before the Commissioner). The experts’ joint report addressed each of the Council’s contentions. In relation to contention 8, the experts’ joint report recorded: “The experts agree that Steve King’s report [Steve King was the applicant’s solar access expert] demonstrated that solar access to Nos 2-6 Abbott St (adjacent to the west) is acceptable”. As a result, Micaul submitted, the only ground upon which the Council had contended that non-compliance with the wall height control in cl 4.4 of Randwick DCP was unacceptable, being overshadowing of the adjoining units in Nos 2-6 Abbott Street, was resolved. The issue was no longer in contest between the parties.

50. In these circumstances, Micaul submitted, the Commissioner was under no obligation to give reasons as to how she resolved an issue that was not in contention or needing resolution.

51. I agree with Micaul’s submissions. For the two reasons identified by Micaul, non-compliance with the wall height control in cl 4.4 of Randwick DCP was not a principal contested issue that the Commissioner was required to resolve or to give reasons as to how or why she resolved it.

52. In any event, the Commissioner did record that “the experts agree that solar access is acceptable” (at [48]) and that she accepted “the evidence of the applicant’s experts [who included Mr Steve King] that the development provides an acceptable level of amenity and solar access”: at [61]. It was immediately after stating this finding in [61] that the Commissioner made her statement “where there is non-compliance with DCP controls, that is not a reason to refuse consent”. This statement logically follows the previous statements that there was no longer a contest that the development provides an acceptable level of solar access. The only basis that the Council had raised in objection to the development exceeding the wall height control in cl 4.4 of Randwick DCP had disappeared.

53. In so far as non-compliance with the wall height control in cl 4.4 of Randwick DCP was raised as a particular to contention 1 that the cl 4.6 objection to compliance with the building height standard in Randwick LEP was not well founded, the Commissioner was not required to deal with it. The Commissioner’s duty to give reasons for not upholding contention 1 was confined to the essential ground or grounds upon which the Commissioner’s decision rested and did not include a requirement to deal with a submission or argument that was otherwise unnecessary to the decision arrived at, provided that in respect of that decision the Commissioner’s reasoning process was articulated and relevant findings made: Segal v Waverley Council at [93]. As I have found in dealing with grounds 1 and 2(ii), the Commissioner gave adequate reasons for her decision that she was satisfied of the matter in cl 4.6(4)(a).

54. For these reasons, I reject ground 3.

Conclusion and orders

55. The Council has not established that the Commissioner erred on any question of law in deciding to grant consent to the development. The Council’s appeal should therefore be dismissed.

56. The parties agreed that the usual costs order applying to appeals under s 56A of the Court Act, namely that costs follow the event, should be made.

57. I order:

1. The appeal is dismissed.

2. The applicant is to pay the respondent’s costs of this appeal.

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Decision last updated: 19 February 2016