Sanderson Elizabeth Ann v Woollahra Municipal Council

[2007] NSWLEC 417

Land and Environment Court

of New South Wales

CITATION:

Sanderson Elizabeth Ann v Woollahra Municipal Council [2007] NSWLEC 417

PARTIES:

APPLICANT
Sanderson Elizabeth Ann
RESPONDENT
Woollahra Municipal Council

FILE NUMBER(S):

10964 of 2006

CORAM:

Talbot J

KEY ISSUES:

Appeal :- alleged failure to give reasons - consideration of an irrelevant matter - failure to hear evidence - prejudice of lay evidence over expert evidence - apprehension of bias and prejudgment - appeal dismissed

LEGISLATION CITED:

Environmental Planning and Assessment Act, 1979
Land and Environment Court Act, 1979, s 56A
Woollahra Heritage Conservation Area Development Control Plan, 2003

DATES OF HEARING:

19/06/07

 
DATE OF JUDGMENT: 

12 July 2007

LEGAL REPRESENTATIVES:

APPLICANT
Mr Harper SC
Mr Pesman (Solicitor)
SOLICITORS
Schraders Lawyers

RESPONDENT
Mr Clay (Barrister)
SOLICITORS
Home Wilkinson Lowry Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Talbot J

12 July 2007

10964 of 2006 Sanderson Elizabeth Ann v Woollahra Municipal Council

JUDGMENT

1 Talbot J: On 20 February 2007 Commissioner Watts delivered a judgment following a hearing on 13 February 2007. The appeal under s 97 of the Environmental Planning and Assessment Act 1979 (EPA Act) was dismissed so that a modification application made pursuant to s 96 of the EPA Act dated 12 October 2006 in respect of Development Consent No. 355/03, 7 October 2003 to alter and add to a terrace dwelling at Lot 1, DP 136824, No. 32 Holdsworth Street, Woollahra, was refused.

2 In the written judgment delivered on 20 February 2007, after identifying the land, the relevant planning controls, the proposal and its history, issues raised by the objectors following notification and the council’s decision, Commissioner Watts outlined the issues and the evidence before concluding that the appeal should be dismissed.

3 The original development consent granted approval to part demolition alterations and additions to the dwelling on the land. At [11] and [12] of the judgment the Commissioner explained his understanding of the application for modification pursuant to section 96 of the Act lodged with the council on 24 April 2006 as follows: -

11 The original modification application proposed the following:

· New carport over approved hardstand parking space.

· An amendment to the design of the approved sliding and pedestrian gates on the eastern boundary.

· New front fence.

· Rendering of the front façade.

· The removal of the original front entry and its replacement with a window (and by implication deletion of condition 3).

· New timber shutters to the ground and first floor windows in the eastern elevation.

· New metal balustrade to first floor balcony in eastern elevation.

· Removal of the Magnolia from front yard.

12 The new front fence is no longer sought as it was decided to reuse the existing fence. The rendering to the front façade is not longer sought. The shutters are subject to another modification application and an amended design was received on the 21 August 2006. The modifications made in the amended plans include:

· A reduction in the length of the carport (and consequential increase in the setback of the carport from the eastern boundary).

· The retention of the existing metal balustrade to the first floor balcony, rather than its replacement with a new metal balustrade.

· The deletion of the timber screens to the windows in the eastern elevation.

Several proposed changes were not pursued at the hearing, including the rendering of the front façade.

4 The applicant has lodged an appeal pursuant to s 56A of the Land and Environment Court Act, 1979 (the Act) relying upon the following grounds:-

1. In relation to the proposed carport, the Commissioner erred in:

(a) treating the objector’s concerns as expert evidence;

(b) rejecting the expert evidence of both the applicant and the Council without providing reasons;
(c) taking into account the objector’s desire to facilitate maintenance access in circumstances where the only evidence was that no easement existed to allow access to occur;
(d) failing to take into account:
(i) the evidence that the proposed carport in substance reinstated a pre-existing carport/pergola;
(ii) the evidence that the proposed setback of the carport was to the same position as pre-existing carport/pergola; and
(iii) the Council had approved plans including two car spaces.
2. In carrying out a view at 32 Holdsworth Street, the Commissioner erred in:
(a) Listening to evidence and submissions from objectors and Council experts without interruption;
(b) Inviting evidence from the appellant’s heritage expert, but continuously interrupting and seeking to truncate such evidence;

thereby acting in a biased or unfair manner, or creating a reasonable apprehension of bias, or creating a reasonable apprehension that he would decide the appeal before him by the application of preconceived ideas.
3. Generally, in deciding the appeal the Commissioner erred:
(a) Failing to take any account of the evidence of the applicant’s architect that the face of the southern fin wall had been rendered in the past;
(b) In taking into account his hope that the face of the southern fin wall would have been retained as fair faced stonework.
Thereby acting in a biased of unfair manner, or creating a reasonable apprehension of bias, or creating reasonable apprehension that he would decide the appeal before him by the application of preconceived ideas.
4. Generally, in deciding the appeal the Commissioner erred:
(a) Failing to take any account of the evidence of the applicant’s architect that the face of the southern fin wall had been rendered in the past;
(b) In taking into account his hope that the face of the southern fin wall would have been retained as fair faced stonework.
(c) Forming the view that failure to retain the face of the southern fin wall as fair faced stonework was detrimental to the conservation area and the streetscape, and then taking such view into account.

The applicant’s arguments

5 According to the applicant, by the time of the hearing the only matter still in dispute was the distance of setback of the carport from the street boundary. This was either to be the alignment of the verandah or the façade on the house of the subject property or a further setback to the front wall of the adjoining property at No. 28 Holdsworth Street. In this respect the commissioner found at [29] and [30] that if he were minded otherwise to approve the modification application he would impose a condition that the proposed carport be set back to be aligned with the front wall of the property at 28 Holdsworth Street so that it would visually relate better to that dwelling by diminishing the dominance of the proposed roof “and would facilitate maintenance, access to the verandah roof of that abutting property”.

6 The Commissioner explained at [31] that he had enquired through Mr Harper SC whether his client the applicant would accept a setback to align with No. 28 Holdsworth Street. He was informed she would not “as the second car closest to the street would be exposed to the elements”. The Commissioner’s decision was made in the context that the applicant agreed to set the carport back about 1.150 metres whereas the council’s preferred position was that it be set back 2.2 metres to align the front facade with the existing dwelling. In each case the contention for a setback was on the basis that the carport roof would be lowered by 500mm.

7 The council had raised the design of the carport as an issue on the ground that it would “detract from the street scape” contrary to the provisions of Woollahra Heritage Conservation Area Development Control Plan, 2003 [the DCP].

8 The applicant contends that the Commissioner was in error to accept lay evidence on that issue. Moreover, he failed to provide any reasons for rejecting expert evidence and ignored the impact of a pre-existing carport/pergola (already demolished) and the approval for two parking spaces already granted.

9 The relevant objective of the DCP is to ensure that residential buildings, rather than vehicle access and parking structures, remain the dominant elements in the streetscape.

10 If I understand the applicant’s submission correctly the Commissioner took into account irrelevant considerations when he found that if the carport was setback to the alignment of No. 28 Holdsworth Street not only would it diminish the dominance of the proposed roof but it would facilitate access to the verandah roof of the adjoining property in circumstances where there is no evidence of any easement or other right to such access nor any evidence of how the deeper setback would facilitate access for maintenance.

11 The applicant also complains that the Commissioner conducted the hearing in a manner that was unfair to the applicant for the following reasons:-

(a) Consent to render part of the front façade of the subject building was not pursued at the hearing. Yet nevertheless, the commissioner appears to have taken into account the fact that it had been rendered to the detriment of retaining it as fair-faced stonework and not rendered.
(b) The Commissioner declined an opportunity for Mr Davies the applicant’s heritage consultant to give evidence during the site inspection.

12 It is claimed by the applicant that the issue of the render of part of the wall was not an issue raised by the council and accordingly was not before the Commissioner for decision. Notwithstanding, during the course of the hearing the Commissioner asserted that:-

… I would be requiring that render on the front face to be removed to try and harmonise the streetscape more so if you wish to bring any evidence about that…

13 Following that observation, uncontested evidence from an architect was called to justify the application of the render. The juxtaposition of observations regarding a preference for the preferred retention of the stonework immediately above the final paragraph in the judgment causes the applicant to submit that it was one of the reasons that formed the basis for the decision by the Commissioner.

14 The final paragraph [42] was simply: -

For the above reasons, the appeal is dismissed.

15 The applicant contends there was reasonable apprehension of bias on the part of the Commissioner for the following reasons:-

(a) The conduct of the Commissioner in relation to Mr Davies’ evidence;
(b) The conduct of the Commissioner at the hearing in concentrating at some length on a render issue which was not, initially at least, before him.
(c) The reliance on an irrelevant matter in relation to the render, particularly in circumstances where there was unchallenged evidence the steps taken were appropriate and necessary;
(d) The Commissioner set out in paragraph 23 of the judgment the issues to be determined, but paragraphs 38 to 40 of the judgment had nothing to do with those issues, either the carport or the front door, nor any ancillary issue to be determined.
(e) Thus the Commissioner in paragraphs 38 to 40 considered a render issue which did not require consideration, for the purpose of making critical and prejudicial comments about the applicant’s use of render in paragraph 41, a matter irrelevant to his decision.
(f) As noted above, in reaching a conclusion about the carport the Commissioner simply embraced the subjective preference of a neighbour.
(g) The absence of reasons generally.

The council’s argument

16 In response to the applicant’s argument that the Commissioner failed to consider and to take into account the evidence of the experts in relation to the impact on streetscape, the council maintains that he clearly did so at [26] when he made the following observation:-

The experts agreed that the lowering and setting back of the carport roof would reduce its visual impact and make it more compatible in the heritage conservation area.

17 This observation was made after identifying the conflicting positions of the parties, including the objector, and making it obvious that he considered that a greater setback was desirable. There was no issue about the height of the roof. The remaining issue was the distance of the setback of the carport roof. At [26] the Commissioner made it clear that it was agreed between the experts that in principle the greater the setback the less visual impact and the greater the compatibility. He explains the council’s preferred position enunciated by its experts at [26] and then explained the concerns expressed by Ms Falkiner the next door neighbour at [28].

18 The question of setback was in the opinion of council self evidently resolved by an objective consideration that did not demand additional analysis. The Commissioner explained at [30] that setting back the extra distance would have three benefits. Firstly it would diminish the dominance of the proposed roof. Secondly it would visually relate better with the dwelling at No. 28 Holdsworth Street. Thirdly it would facilitate maintenance access to the verandah roof of the abutting property. The observations and findings of the Commissioner were made in the context of the second identified issue in [23] namely:-.

1. …..
2. The proposed carport will detract from the streetscape.
Particulars
The proposed height and location of the carport would result in it becoming a dominant element in the streetscape. The proposal would be contrary to the requirements of the Woollahra Heritage Conservation Area Development Control Plan, Part 3.4.9 Control C1 and Objectives O1

19 It is submitted by the Council that the subsequent paragraphs in the judgment where they relate to the setting back of the carport are clearly relevant to the effect on streetscape and the amelioration of that impact by setting the carport back to relate to the adjoining property. The deference to the impact on the property of Ms Falkiner was not determinative according to the council, but nevertheless, the issues raised by the neighbour were matters that the Commissioner was entitled to have regard to.

20 Setback is a matter upon which minds may differ and the Commissioner was entitled to make a value judgment. The issue was legitimately raised by the objector and accordingly, the Commissioner was entitled to also take into account the impact of the proposed development on adjoining development. The Council contends the assessment of such an impact is not confined to the evaluation of expert evidence.

21 In any event the impact of the proposal on the adjoining property and its place as part of the streetscape was a relevant consideration to which the Commissioner was entitled to bring his own mind and expertise having regard to the expert evidence and the assistance it provides.

22 In relation to a pre-existing pergola and carport the council says that the applicant fails to identify why they were relevant considerations. Such matters are not relevant considerations by virtue of s 79C of the EPA Act. The existence or otherwise of an earlier consent permitting a particular development for the existence of buildings which are to be demolished are not necessarily relevant considerations. In the present case the pergola had already been demolished. It would therefore be an exercise in futility to contrast or compare the impact of the proposed carport with an earlier but currently non- existent structure.

23 In relation to the issue concerning the conduct of the hearing by the Commissioner and his alleged prevention of the giving of evidence by the applicant’s experts, the council notes that Mr Davies gave his evidence on site when Senior Counsel for the applicant was present. Senior Counsel did not raise the issue during the onsite inspection. No subsequent application for leave to lead further evidence from Mr Davies was made at the hearing that took place in Court subsequently.

24 Having regard to the nature of the observations made by the Commissioner in relation to the render of the facade, the council contends that at its worst it is a tentative view expressly inviting a response from the applicant, which the applicant subsequently accepted. Notwithstanding the juxtaposition of the observations of preference in relation to the treatment of the façade and the final determination by the Commissioner, it is submitted by the council that the Commissioner was plainly referring to his reasons previously expressed in the judgment and not the matters dealing with the facade which immediately preceded the final expression of his decision.

25 In relation to the alleged apprehension of bias and denial of natural justice the council makes the point that the issues were not raised during the course of the hearing and accordingly, the applicant must be regarded as having waived the right to raise the objection. No mention of any concern in regards to the apprehension of bias was raised when the hearing commenced in Court following the site visit. Nor was it raised following completion of the hearing after the Commissioner reserved judgment.

26 The alleged cutting off of Mr Davies in the course of giving his evidence on site can, according to the council, rightly be regarded as no more than an exercise in management during the site inspection. That action did not operate as a bar to the applicant raising her concerns through counsel when the hearing subsequently resumed in Court. Rather than the decision of the Commissioner and the contents of his judgment reflecting an apparent bias they are simply an expression of his opinion adverse to the applicant’s case.

Was there an error of law on behalf of the Commissioner?

27 It is not appropriate to trawl through reasons for judgment given by the Commissioner looking for legal error following a hearing on the merits of an application. That the Commissioner made a factual error or reached an apparently perverse finding contrary to the applicant’s case will not generally amount to an error of law.

28 He is nevertheless required to act in accordance with the rules of procedural fairness and to take an even handed approach without bias or prejudgment. The Commissioner is entitled to inform himself in such manner as is appropriate to the case in hand and to rely on his own expertise and experience to reach a balanced decision. He is required to give reasons for his decision so that the basis for his conclusion can be understood and appreciated by the parties.

29 What the Commissioner found and explained in his case was that he preferred an extended setback for the proposed carport in order to relate it to the house next door in a manner confirming to the objectives of the DCP. That is, to maintain a low profile for structures providing accommodation for the parking of cars consistent with the contribution of the individual dwellings to the highly regarded streetscape.

30 Although experts, such as Mr Davies, were entitled to assist the Court with their opinion, nevertheless the Commissioner was not bound to accept that advice particularly where subjective assessment is involved, even if the criteria is expressed objectively. That the opinion of the Commissioner coincided with the expressed preference of the neighbour contrary to the so called expert opinion of others is not a matter that generates a finding of legal error. The Commissioner was fully entitled to reach his own conclusion and he did so giving sufficient reasons. He may not have been as extravagant with his explanation as he could have been but he was sufficiently explicit for his reasoning to be understood.

31 The suggestion that the hearing was conducted in a manner that created an injustice by truncating the opportunity for the applicant’s witness to be fully heard on site only has to be stated to be recognised as untenable in circumstances where the applicant was at all times represented by Senior Counsel and there was ample opportunity for the matter to be raised in Court subsequently.

32 The observations made by the Commissioner in relation to the treatment of the façade were related to an issue that was originally an issue in the proceedings and which obviously was a concern to the Commissioner. However, the applicant was able to deal with it. Nevertheless I do not perceive the issue of the façade as being anything more than of passing interest to the Commissioner after he had made it abundantly clear that he was of the opinion the application to build the carport would be refused. He was not obliged to conditionally approve the erection of the carport in a situation where the applicant had expressly rejected the proposal to set it back to align with the adjoining property.

33 The consideration of the relationship to pre-existing historical structures was an immaterial consideration and the Commissioner was correct to ignore them.

34 The apprehension of bias or prejudgment issue substantially depends upon a finding by me that the combination of the alleged errors relied upon by the applicant are evidence that the Commissioner was prejudiced against the applicant. I am not able to find that is the case having regard to the dismissal of the other arguments developed by the applicant. Moreover, it is not generally appropriate for an issue of apprehended bias to be raised for the first time on appeal.

35 Having regard to the whole of the circumstances and to the individual reasons for rejection of the arguments raised by the applicant, the appeal will be dismissed.

Orders
1. Appeal dismissed;
2. The exhibits may be returned.