SDHA Pty Ltd v Waverley Council

[2015] NSWLEC 65

Land and Environment Court

New South Wales

Medium Neutral Citation:	SDHA Pty Ltd v Waverley Council [2015] NSWLEC 65
Hearing dates:	22 February 2015
Date of orders:	24 April 2015
Decision date:	24 April 2015
Jurisdiction:	Class 1
Before:	Pepper J
Decision:	Summons dismissed.
Catchwords:	APPEAL: appeal against decision of Commissioner – whether the Commissioner failed to take into account a mandatory relevant consideration – whether the Commissioner impermissibly took into account an irrelevant consideration - whether the Commissioner failed to give adequate reasons in respect of principally contested issues – summons dismissed – no order as to costs.
Legislation Cited:	Environmental Planning and Assessment Act 1979, ss 79C, 96, 102 Land and Environment Court Act 1979, s 56A Land and Environment Court Rules 2007, r 3.7 Waverley Local Environmental Plan 2012, cls 4.3, 4.4 and 4.6
Cases Cited:	1643 Pittwater Road Pty Ltd v Pittwater Council [2004] NSWLEC 685 Arden Anglican School v Hornsby Shire Council [2008] NSWLEC 103; (2008) 158 LGERA 224 Bankstown City Council v Mohamad El Dana [2009] NSWLEC 68 Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430 Bonim Stanmore Pty Ltd v Marrickville Council [2007] NSWLEC 286; (2007) 156 LGERA 12 Boral Cement Pty Ltd v SHCAG Pty Ltd; Minister for Planning and Infrastructure v SHCAG Pty Ltd [2013] NSWLEC 203 Botany Bay City Council v Farnworth Holdings Pty Ltd [2004] NSWCA 157 Botany Bay City Council v Premier Customs Services Pty Ltd [2009] NSWCA 226; (2009) 172 LGERA 338 Brimbella Pty Ltd v Mosman Municipal Council (1985) 79 LGERA 367 Brinara Pty Ltd v Gosford City Council [2010] NSWLEC 230; (2010) 177 LGERA 296 Carstens v Pittwater Council [1999] NSWLEC 249; (1999) 111 LGERA 1 Community Association DP270253 v Woollahra Municipal Council [2015] NSWCA 80 Davis v Gosford City Council [2013] NSWLEC 49 Design Power Associates Pty Ltd v Willoughby City Council [2005] NSWLEC 470; (2005) 148 LGERA 233 Gann v Sutherland Shire Council [2008] NSWLEC 157 Goodrich Aerospace Pty Ltd v Arsic [2006] NSWCA 187; (2006) 66 NSWLR 186 Greenwood v Warringah Council [2013] NSWLEC 223; (2013) 200 LGERA 190 Hooker Corp Pty Ltd v Hornsby Shire Council (1986) 130 LGERA 438 Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378; (1983) 53 LGRA 325 Hurstville City Council v Goreski [2011] NSWLEC 188 Keith v Gal [2013] NSWCA 339 Lido Real Estate Pty Ltd v Woollahra Council (1997) 98 LGERA 1 Mifsud v Campbell (1991) 21 NSWLR 725 Minister for Aboriginal Affairs v Peko-Wallsend [1986] HCA 40; (1986) 162 CLR 24 Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 Mitchell v Cullingral Pty Ltd [2012] NSWCA 389 Norm Fletcher & Associates Pty Limited v Strathfield Municipal Council [2014] NSWLEC 157 North Sydney Council v Michael Standley & Associates Pty Ltd [1998] NSWSC 63; (1998) 43 NSWLR 468 Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 R v Hunt; Ex parte Sean Investments Pty Ltd [1979] HCA 32; (1979) 180 CLR 322 SDHA Pty Ltd v Waverley Council [2014] NSWLEC 1230 Segal v Waverley Council [2005] NSWCA 310; (2005) 64 NSWLR 177 SJ Connelly CPP Pty Ltd v Byron Shire Council [2014] NSWLEC 2; (2014) 199 LGERA 263 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 Stoker v Adecco Gemvale Constructions Pty Ltd [2004] NSWCA 449 Sydney Water Corporation v Caruso [2009] NSWCA 391; (2009) 170 LGERA 298 Thaina Town (On Goulburn) Pty Ltd v City of Sydney Council [2007] NSWCA 300; (2007) 156 LGERA 150 Village McEvoy Pty Ltd v Council of the City of Sydney (No 2) [2010] NSWLEC 17; (2010) 176 LGERA 119 Wainohu v State of New South Wales [2011] HCA 24; (2011) 243 CLR 181 Warkworth Mining Pty Ltd v Bulga Milbrodale Progress Association Inc [2014] NSWCA 105; (2014) 200 LGERA 375 Wiki v Atlantis Relocations (NSW) Pty Ltd [2004] NSWCA 174; (2004) 60 NSWLR 127 Zhang v Canterbury City Council [2001] NSWCA 167; (2001) 51 NSWLR 589 Ziliotto v Hakim [2013] NSWCA 359
Category:	Principal judgment
Parties:	SDHA Pty Limited (Applicant) Waverley Council (Respondent)
Representation:	Counsel: Mr P Tomasetti SC with Mr M Fraser (Applicant) Mr C McEwen SC with Mr M Staunton (Respondent) Solicitors: Baron & Associates (Applicant) Wilshire Webb Staunton Beattie Lawyers (Respondent)
File Number(s):	10990 of 2014
Decision under appeal	Court or tribunal: Land and Environment Court of New South Wales Jurisdiction: Class 1 Citation: [2014] NSWLEC 1230 Date of Decision: 6 November 2014 Before: Brown C File Number(s): 10574 of 2014

Judgment

SDHA Appeals Against the Decision of a Commissioner Refusing to Approve a Modification Application

1. This is an appeal by SDHA Pty Limited (“SDHA”), heard pursuant to an order for expedition, under s 56A of the Land and Environment Court Act 1979, from a decision of Brown C in SDHA Pty Ltd v Waverley Council [2014] NSWLEC 1230.

2. The appeal concerns the refusal by the respondent, Waverley Council, to approve an application made under s 96 of the Environmental Planning and Assessment Act 1979 (“the EPAA”) to modify a development consent granted on 9 December 2007 (“the consent”), in respect of a redevelopment of the Swiss Grand Hotel building located at 180–186 Campbell Parade, Bondi Beach. Construction on the redevelopment had commenced at the time of the hearing before the Commissioner, thus the urgency attending this appeal.

3. The judgment would have been delivered earlier but for the interruption of its finalisation by a period of leave, of which the parties were made aware prior to the allocation of the matter for hearing before me.

4. The consent included a total floor area of 25,926m², comprising 74 residential apartments, 68 hotel apartments, two levels of retail space, including a gymnasium, and works to the existing basement area to accommodate car parking.

5. The modification application sought to expand the areas of units 505 and 506 to include an additional bedroom, ensuite, and walk-in-wardrobe with two new curved vault shaped roof elements on the top floor. The additional proposed floor space was 117m².

6. The summons filed on 2 December 2014 appears to raise, or at least identifies, six generic “material errors of law” described as follows:

The Commissioner did not deal adequately with the principal contested issues, his decision was in part irrational, inadequately reasoned, he failed to take into account relevant matters and he took account of irrelevant matters and in deciding the appeal as he did he fettered the exercise of the statutory discretion reposed in him.

7. The summons then proceeds to purportedly particularise the identified errors of law by reference to each of the paragraphs of the judgment of the Commissioner.

8. Further grounds of appeal are then raised within the enumerated particulars.

9. On one view, the summons raises approximately 24 grounds of appeal. By recourse to that document alone, it is impossible, however, to be accurate. Drafted as it is, the summons contains reference to inappropriate factual material, is argumentative, is repetitive, and obfuscates the real issues for determination in the appeal.

10. Accordingly, and as consented to by SDHA (T34.15–35.05), the Court proceeded to determine the three arguments presented by SDHA in its oral and written submissions in order to resolve the appeal. These arguments are:

1. first, that the Commissioner failed to take into account a mandatory relevant consideration under s 79C of the EPAA, namely, cls 4.3, 4.4 and 4.6 of the Waverley Local Environmental Plan 2012 (“the LEP”), and instead substituted a different statutory requirement;

2. second, that the Commissioner took into account two impermissible irrelevant considerations, specifically, that it was impossible for SDHA to argue that the units “needed” any additional view amenity given that there was a panoramic, iconic view from the dwellings over Bondi Beach without the additional bedrooms, walk-in-wardrobes and ensuites, and that the height control “must have some work to do”; and

3. third, that the Commissioner failed to deal with the principally contested issues in the proceedings by failing to deal with Mr Harrision’s evidence.

11. In my opinion, SDHA has been unsuccessful in demonstrating any error on a question of law in respect of the Commissioner’s decision, and therefore, the appeal should be dismissed with no order as to costs.

Legal Principles Governing an Appeal from the Decision of a Commissioner

12. Prior to examining the Commissioner’s decision, it is worth recalling the principles according to which this appeal falls to be determined:

1. first, the appeal is only concerned with errors or questions of law and not questions of fact (Village McEvoy Pty Ltd v Council of the City of Sydney (No 2) [2010] NSWLEC 17; (2010) 176 LGERA 119 at [25]; Brinara Pty Ltd v Gosford City Council [2010] NSWLEC 230; (2010) 177 LGERA 296 at [28]–[30] and Hurstville City Council v Goreski [2011] NSWLEC 188 at [50]–[52]);

2. second, an overly critical examination of the Commissioner’s decision for relevant error should not be employed (Brimbella Pty Ltd v Mosman Municipal Council (1985) 79 LGERA 367 at 368; Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 291; Carstens v Pittwater Council [1999] NSWLEC 249; (1999) 111 LGERA 1 at [76]; Bonim Stanmore Pty Ltd v Marrickville Council [2007] NSWLEC 286; (2007) 156 LGERA 12 at [6]–[7]; Village McEvoy at [28]–[31] and Goreski at [53]);

3. third, the Commissioner must give adequate reasons for his decision refusing to approve the modifications. This means that he must refer to evidence that is important or critical to the determination of the principal or central issues in the case (Segal v Waverley Council [2005] NSWCA 310; (2005) 64 NSWLR 177 at [44]–[45], [62], [92] and [99], and Village McEvoy at [26], and the authorities referred to thereat). This does not mean, however, that every argument advanced by a party in support of these issues must be considered by the Commissioner or reasons given for accepting or rejecting it (Segal at [93]). A commissioner’s duty to give reasons is confined to the essential grounds upon which the decision rests and does not encompass a requirement to deal with a submission or contention that is otherwise peripheral to the decision arrived at, provided that the Commissioner’s reasoning process is articulated and relevant to the findings made (Segal at [93]);

4. fourth, and as corollary to the principle above, if the decision of the Commissioner reveals an error on a question of law, the decision is only vitiated if the error is material to the decision made (Design Power Associates Pty Ltd v Willoughby City Council [2005] NSWLEC 470; (2005) 148 LGERA 233 at [34]; Goreski at [53]–[56], Sydney Water Corporation v Caruso [2009] NSWCA 391; (2009) 170 LGERA 298 at [133]–[136] and [91], and Warkworth Mining Pty Ltd v Bulga Milbrodale Progress Association Inc [2014] NSWCA 105; (2014) 200 LGERA 375 at [194]); and

5. fifth, an error will not be material to the decision as made if the matter complained of on appeal was a matter that was not the subject of submissions made to the Commissioner below in a way that called for a reasoned consideration of that matter (Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 385–386 and Davis v Gosford City Council [2013] NSWLEC 49 at [75]). A party is bound by the way it conducted its case at the hearing (Bankstown City Council v Mohamad El Dana [2009] NSWLEC 68 at [47]–[55] and Davis at [75]–[77]).

Proceedings Before the Commissioner

13. There were two principal or central contentions before the Commissioner for determination:

1. first, whether the modification application was not substantially the same for which the development consent was granted; and

2. second, the effect of the alleged excessive visual bulk of the proposed development occasioned by the roof elements.

14. The council’s employed planner, Mr Lee Kosnetter, gave expert planning evidence on its behalf, together with Ms Gabrielle Morrish, the council’s consultant architect, an expert in urban design. Mr Michael Harrison, SDHA’s expert consultant town planner and architect, gave planning and urban design evidence on behalf of SDHA.

15. In relation to the first principally contested issue, of whether the development as modified was not substantially the same as the development for which the consent was granted, the Commissioner found in favour of SDHA (at [12]). No issue is taken with the Commissioner’s reasoning in this regard. Rather, it is the second principally contested issue with which SDHA takes umbrage.

16. Before the Commissioner it was accepted by both parties that, as approved, the development was substantially in excess of the floor space ratio (“FSR”) (the FSR control was 3:1, whereas what was approved was 4.233:1) and height controls (the height control was 15m, whereas what was approved was 21.38m) designated in the LEP.

17. Having noted this, however, it was not in dispute that the proposed modified development would result in only a marginal increase in the FSR and no additional height above that already approved by the council.

18. The real controversy between the parties in respect of the second principally contested issue was whether the proposed modification altered the design intent or objective of the development, so as to make it unacceptable by unreasonably increasing the mass and bulk of the roof.

19. The council was concerned that the originally approved individually vaulted roof design would be modified in such a way that the roof took on the appearance of an additional level of accommodation, whereas SDHA contended that the design intent was maintained by the proposed alterations.

20. The Commissioner commenced by summarising the evidence of Ms Morrish (which he noted was supported by the evidence of Mr Kosnetter) in the following way (at [14]–[17]):

14.    Ms Morrish states that the proposal has an adverse impact as, unlike the previous approvals, it joins together the distinctive vault forms on the roof. The purpose of the vaults in the original approval was to add visual interest to the top of the building (it is assumed) for any views gained down on the building from the surrounding area. The previous approvals changed the shapes of the vaults but still allowed them to be read as distinct elements. The current application joins these vaults with further vaults, losing the distinctive forms and creating, in effect, a continuous floor plate over the western section of the building.

15.    This linked form is likely to be visible from Gould Street and possibly across the park from near the beach front and will be read as a full floor of development in this location. This is counter to the intent of the original approval and goes quite some way to reintroducing massing and bulk which was deleted to gain the original approval.

16.    A sixth floor on this building is not appropriate given it is already taller than it's context and already over the height and FSR control. It will potentially set a precedent height for other buildings in the vicinity. The original design and approval had the vault forms as roof features. This sort of treatment today is supported by clauses in the LEP that allow exceedance of height. However the extent of floor space now means that the vaults are no longer roof features but actual floors in the development.

17.    In the opinion of Ms Morrish, the extent of floor space already granted is more than generous and there is no need for anything further. The need for extra floor space and vaults to enhance the amenity of the units is not required. Under the previous approval they were already generous 3 bed apartments with exceptional views from the living areas and private open space. Ms Morrish does not consider a fourth bedroom, of the extent proposed, is required to achieve amenity for these dwellings. To continue expansion of this level of the building is putting private interests ahead of the intent of the controls which was actually for four storey forms to Campbell Parade. This building is already well above the four storey desired future character.

21. He then proceeded to summarise the evidence given by Mr Harrison (at [18]–[21]):

18.    Mr Harrison considers that generally the roof vaults are placed in an irregular pattern across the sixth level and that the two small additional vaults are part of the irregular pattern The proposal is virtually indistinguishable when seen from anywhere in the public domain.

19.    The proposal greatly adds to the amenity of two apartments by having a master bedroom facing the ocean view rather than to the rear. The general roof vault design was always intended to be visible from the public domain to reduce the visual effect of a flat roof - so it is not surprising that the partial sixth floor is visible. The proposed two additional small vaults are unlikely to be able to be seen or distinguished from the other vaults because of their extent of setback from the street.

20.    With regard to the Gould Street view, the new vaults may be slightly visible although Mr Harrison considers them to be hardly noticeable given the extent of other vaults and the fact that the relevant part of the proposal is generally behind an existing lower building between the proposal and Gould Street.

21.    The planning controls while stating an intent for the area do not recognise the scale of the existing building on the site. The original approval was based on the height of the existing building in order to encourage a much better quality building in this world renown location by cleverly adaptively reusing the structure and converting a very detracting building to one that positively contributes to its special setting.

22. The Commission preferred the evidence of Ms Morrish and gave four reasons for doing so (at [22]–[27]):

22.    In balancing the competing evidence, I agree with the conclusions of Ms Morrish for a number of reasons. First, it is important to understand the history of the development on the site, and particularly the sixth floor of the development. There was no dispute that the proposed development, even in it's original approval in 2008, exceeded the height and floor space ratio controls. Given that the proposed development sought the adaptive reuse of an existing building, the council, not unreasonably in my view, allowed variations to these controls. There must however be a point where any further variations become unacceptable. I am satisfied that this point has been reached, based on the evidence of Ms Morrish.

23.    In her evidence (Exhibit 4 at [5]), Ms Morrish sets out the design approach for the sixth floor where she states:

Since the original approval FSR and habitable space has been allowed into the mezzanine level or level 6. However this space was allowed on the basis that it was contained within distinct roof forms - the vaults and was not a partial floor over the building. The original approval included roof vaults that were to light the floor below and break up the roof form. A number of the vaults had a lower profile and were smaller than the currently approved forms.

Approvals for DA applications A and B allowed these vaults to be raised and floor space to be contained within them on the basis that these vaults still essentially coincided with the existing vaults or plant areas that had additional height under the approved application.

The FSR as part of these approvals increased from 3.88:1 to 4.247:1 including wintergardens. The extent of the habitable space on the roof increased from 575 sq m to 1326 sq m. This application seeks to increase the area on the roof to 1,443 sq m and increases the FSR by a further 86 sq m. This does not result in a change to the ratio given the size of the site.

This proposal does change the approach to the discreet roof form vaults. This current application provides vaults that merge into other vaults, creating a joined roof form across the proposal.

24.    The approach that the council has adopted in allowing some development on the sixth floor through the interesting vault forms has merit in an urban design sense. I see no reason why this sensible approach should be diluted through the additional floor area proposed in this application.

25.    Second, and while the sixth floor units would have increased amenity, it is difficult, if not impossible, to argue that the units need the additional amenity given the panoramic and even iconic views over Bondi Beach that will still be available without the additional floor area.

26.    Third, and even though the additional floor area will not be viewed from all locations around the site, the vault structures on the roof can be viewed from certain locations near the beach and from other apartments to the west of the site . The irregular but separate and distinct nature of the vaults allows them to be read as distinct elements from many, but not all locations however the current proposal will see some of the vaults linked and seen as roof elements of greater mass and bulk. This is inconsistent with the approach to the development of the sixth floor where it was envisaged that there would not be a full or partial floor at this level.

27.    Fourth, and even though the council approached the redevelopment of the site through the adaptive reuse of the building it does not follow, in my view, that simply because the non-complying height of a building may not able to be seen from a number of locations that this, in itself, justifies a further breach of the height standard. The height standard must have some work to do in considering the appropriate height of a building on the site, particularly given the high prominence of the Bondi Beach area.

23. As a consequence, he dismissed the appeal (at [28]).

Failure to Take Into Account Clauses 4.3, 4.4 and 4.6 of the LEP

24. SDHA argued that because the LEP was a relevant mandatory consideration under s 79C of the EPAA, the Commissioner was required to take into account cls 4.3 (height of buildings), 4.4 (FSR) and 4.6 (exceptions to development standards) of the LEP in determining the modification application (citing 1643 Pittwater Road Pty Ltd v Pittwater Council [2004] NSWLEC 685 at [51] and [52] per McClellan J).

25. Those clauses provide as follows:

4.3 Height of buildings

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

(a) to establish limits on the overall height of development to preserve the environmental amenity of neighbouring properties,

(b) to increase development capacity within the Bondi Junction Centre to accommodate future retail and commercial floor space growth,

(c) to accommodate taller buildings on land in Zone B3 Commercial Core of the Bondi Junction Centre and provide an appropriate transition in building heights surrounding that land,

(d) to ensure that buildings are compatible with the height, bulk and scale of the existing character of the locality and positively complement and contribute to the physical definition of the street network and public space.

(2)    The height of a building on any land is not to exceed the maximum height    shown for the land on the Height of Buildings Map.

4.4 Floor space ratio

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

(a) to ensure sufficient floor space can be accommodated within the Bondi Junction Centre to meet foreseeable future needs,

(b) to provide an appropriate correlation between maximum building heights and density controls,

(c) to ensure that buildings are compatible with the bulk, scale, streetscape and existing character of the locality,

(d) to establish limitations on the overall scale of development to preserve the environmental amenity of neighbouring properties and minimise the adverse impacts on the amenity of the locality.

(2) The maximum floor space ratio for a building on any land is not to exceed the floor space ratio shown for the land on the Floor Space Ratio Map.

…

4.6 Exceptions to development standards

(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.

26. Clause 4.3 had to be taken into account, SDHA submitted, because the proposed additions were above the maximum height permitted by that clause. Clause 4.4 was relevant because the modifications added floor space above that permitted, and cl 4.6 had to be considered because the LEP permitted development that contravened the development standards in cls 4.3 and 4.4 if it could be demonstrated by written request that compliance with the development standard was unreasonable or unnecessary in the circumstances of the case and that there were sufficient environmental planning grounds to justify contravention of the development standard.

27. A written request drafted pursuant to cl 4.6 of the LEP was before the Commissioner. However, according to SDHA, neither the request, nor the salient clauses of the LEP referred to above, were considered by the Commissioner.

28. Instead, SDHA contended, the Commissioner erroneously substituted the statutory requirements for consideration under the LEP with the following test (at [22]):

There must however be a point where any further variations become unacceptable. I am satisfied that this point has been reached, based on the evidence of Ms Morrish.

29. This test was not contained in either the EPAA or the LEP and, according to SDHA, “should never [sic] be asked or considered”. In posing the question, the Commissioner either impermissibly fettered his assessment of the modification application by deciding that any further variation to the FSR or the height of the development, however inconsequential, would be unacceptable, or he substituted for the statutory requirement a different approach and failed to treat the LEP as a fundamental element or focal point of his decision-making (Zhang v Canterbury City Council [2001] NSWCA 167; (2001) 51 NSWLR 589, Botany Bay City Council v Premier Customs Services Pty Ltd [2009] NSWCA 226; (2009) 172 LGERA 338, R v Hunt; Ex parte Sean Investments Pty Ltd [1979] HCA 32; (1979) 180 CLR 322 at 329 per Mason J and Bulga at [203]–[225]), or both.

30. There are three reasons why this ground of appeal must fail.

31. The first is, as the council correctly submitted in my opinion, that the application before the Commissioner was a modification application pursuant to s 96 of the EPAA, and that, as a matter of law, s 96 constituted a complete source of power to modify a consent, and therefore, cl 4.6 did not apply and was not relevant for the purposes of s 96(3) of that Act.

32. Section 96 relevantly provides that (emphasis added):

96 Modification of consents-generally

(2)    Other modifications A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the consent authority and subject to and in accordance with the regulations, modify the consent if:

(a)    it is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted and before that consent as originally granted was modified (if at all), and

(b) it has consulted with the relevant Minister, public authority or approval body (within the meaning of Division 5) in respect of a condition imposed as a requirement of a concurrence to the consent or in accordance with the general terms of an approval proposed to be granted by the approval body and that Minister, authority or body has not, within 21 days after being consulted, objected to the modification of that consent, and

(c)    it has notified the application in accordance with:

(i) the regulations, if the regulations so require, or

(ii) a development control plan, if the consent authority is a council that has made a development control plan that requires the notification or advertising of applications for modification of a development consent, and

(d)    it has considered any submissions made concerning the proposed modification within the period prescribed by the regulations or provided by the development control plan, as the case may be.

Subsections (1) and (1A) do not apply to such a modification.

(3)    In determining an application for modification of a consent under this section, the consent authority must take into consideration such of the matters referred to in section 79C (1) as are of relevance to the development the subject of the application.

(4)    The modification of a development consent in accordance with this section is taken not to be the granting of development consent under this Part, but a reference in this or any other Act to a development consent includes a reference to a development consent as so modified.

33. Accordingly, there was nothing in the LEP that obliged, in mandatory terms, the taking into account of the objectives of the height or FSR controls because the cl 4.6 objection was otiose.

34. Just as, by analogy, an objection under the State Environmental Planning Policy No 1 does not apply to s 96 applications, neither did cl 4.6 of the LEP and the objection based upon it before the Commissioner (Lido Real Estate Pty Ltd v Woollahra Council (1997) 98 LGERA 1 at 4 per Talbot J, North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468 at 480–481 per Mason P - cited in 1643 Pittwater Road at [52] and Gann v Sutherland Shire Council [2008] NSWLEC 157 at [8]–[18] per Lloyd J).

35. Although both Lido Real Estate and Michael Standley concerned an earlier version of the power to modify development applications as contained in s 102 of the EPAA (the precursor to s 96), given the almost identical language contained in s 102(3A) and (4) to the present text of s 96(3) and (4), the same result must follow. No error, therefore, was committed by the Commissioner in not considering cl 4.6 or the objection based upon it as asserted by SDHA.

36. Second, as the authorities referred to above make plain, SDHA is bound by the manner in which it conducted its case before the Commissioner. SDHA took the position before the Commissioner that the height and FSR controls were of little assistance in evaluating the proposal. I agree with the council that it cannot now run a contrary argument.

37. Thus in oral submissions to the Commissioner SDHA said (at T52.33–52.42):

Commissioner, the building was already well in exceedance of the FSR control when it existed when the FSR control was brought in. So too was its height, and against that background, the planning authorities had to deal with this as an adaptive reuse and not only saw fit to increase the FSR and significantly, but also saw fit to increase its height. This was a recognition that so far as this site was concerned, these building controls are of little assistance in determining and evaluating a development application.

What is more important are the environmental outcomes and as I’ve submitted a number of times, those impacts are all de minimis.

38. This position was subsequently reiterated by SDHA (at T57.39–58.24):

Apart from that, the only other matter which my learned friend referred to of merit in our respectful submission there were two matters. One was to draw attention to the objectives in clause 4.3 and 4.4 of DCP, in the terms of height we note that one of the objectives relied upon is to establish limits on height to preserve environmental amenity of neighbouring properties. There’s no amenity of neighbouring properties. B and C aren’t relevant because they relate to Bondi Junction centre and D is to ensure the buildings are compatible with height, bulk and scale with the existing character of the locality and positively complement and contribute etc.

Commissioner, these two additional values are below the height of the overall building, the maximum height, and therefore in our respectful submission, don’t introduce a new height consideration. Given that the previous development was approved as being compatible with height, bulk and scale, it’s hard to see somehow how this development, this modification modest as it is, would make it otherwise than compatible with height, bulk an scale.

In terms of floor space ratio, A is not relevant. That goes to the Bondi Junction centre. B is to provide an appropriate correlation between heights and density controls. We’re adding at worst, 17 square metres to a building with 20,000-odd square metres of floor space. To ensure buildings are compatible with bulk, scale, streetscape and existing character, for all the reasons I’ve indicated the bulk and scale of the building is set and approved as having appropriate merit and this addition will be de minimis and to provide limitations on overall scale of development, this development is not changing the scale, seeking to preserve environmental amenities and localities, so we satisfy all the objectives. There’s no adverse effect. It’s a de minimis outcome, has minor impacts as Ms Morrish has conceded, and lastly she rests her argument on one of precedent. This is at p 13. If this application is supported, there’s a real risk the applicant would seek to link the other vaults. Well, in our submission as I indicated, that’s something that is only a matter of conjecture and if it’s done it’ll be assessed on its merits and I’m not suggesting for a moment it will be, it’ll be assessed on its merits and if it’s objectionable it’ll be refused and if it’s reasonable it’ll be approved.

39. The submission was consistent with the questioning by SDHA of Ms Morrish (at T42.34–43.11):

TOMASETTI: Going back to these original controls on a site like this is of little assistance. One has really got to determine what the environmental impact of the proposal is, doesn’t one?

WITNESS MORRISH: Not necessarily, no. I don’t think just because you can’t see it or it has minimal visual impact it means that it’s okay.

TOMASETTI: The original intent, I think we’re all agreed, was that the roof level had a large expansive area of concrete needed to be broken up in the architectural resolution of some kind, the vaults were after a long degree of discussion and cooperative interaction with the council and other authorities, seen as being a highly satisfactory solution, weren’t they?

WITNESS MORRISH: The individual vaults were, yes.

TOMASETTI: Those vaults lifted up the overall height even further above the 15 metre height limit?

WITNESS MORRISH: I think they did when they were made habitable, yes.

TOMASETTI: Now you’re saying you should be very mindful of the 15 metre height limit when you come to consider this application?

WITNESS MORRISH: No, what I’m saying is there was a reason why those breaches were felt to have a positive outcome. I don’t see that this intent to breach the height control has the same positive outcome that therefore would mean it’s a reasonable thing to do and reasonable not to comply with the height control.

40. Rather, SDHA’s “case in a nutshell”, which it maintained throughout the hearing before the Commissioner, was that the proposal was a very minor modification that did not increase the overall height of the building, resulted in minimal additional floor space, created high levels of additional amenity to the two units concerned, and caused “virtually no external impact”, with the public interest submissions a “repetition of the merit assessment with a different label” (T7.37–8.10).

41. It is clear, therefore, that SDHA’s case was concerned with the “de minimis” impact of the proposal, and not an absence of compliance with the planning controls concerning height and FSR in the LEP. For SDHA to now complain that the Commissioner did not take into account these controls when he was instructed by SDHA that they were, in effect, immaterial, does not result in vitiating error by the Commissioner.

42. In any event, as is evident from the Commissioner’s decision (for example, at [16], [21] and [22]), the Commissioner was aware of the height and FSR planning controls, both in respect of the council’s initial consent, and the “further variations” being proposed in the modification application. It was his conclusion, based on the evidence of Ms Morrish, that these “further variations” in relation to both height and FSR were, as a matter of fact, “unacceptable”. Plainly, he took them into account in reaching his decision.

43. Consideration of the objectives of the controls was not mandatory because having regard to the manner in which the case was presented before the Commissioner, neither cl 4.6, nor the objectives of cls 4.3 and 4.4 of the LEP, were engaged as a principal contested issue.

44. The principal merit contest between the parties was not whether the proposed modifications were compliant with the objectives (a position that was consistent with those objectives having been considered and then set aside by the earlier consent, and by the fact that the proposed modifications would result in only a minor increase in the FSR and no addition to the overall height of the development), but whether the proposed roof alterations added excessive bulk and were contrary to the design intent notwithstanding the prior approved FSR and height excesses. True it is, that SDHA referred to these objectives during the hearing, but it did not found its case on them, and it went further by repeatedly informing the Commissioner that the controls were of “little assistance” in any assessment of the merits of the proposed modification. In these circumstances, the Commissioner did not make, in my opinion, an error warranting intervention on appeal.

45. Third, the submission by SDHA that the Commissioner substituted a different approach for the statutorily mandated approach in the LEP is, in my view, misconceived.

46. Although the Commissioner had regard to the substance of the LEP, albeit not explicitly, the Commissioner did not make cls 4.3, 4.4 and 4.6 a fundamental element of his decision-making process because they were not, as is discussed above, the focal point of SDHA’s case before him. Nor did the Commissioner, by his own volition, put aside any standard set by those planning controls and apply his own version of what was reasonable. Those controls had already been put aside by the council in the earlier approvals. He did not, as that which occurred in Zhang and Premier Custom, ignore the LEP and err in the exercise of the discretion reposed in him.

47. As was observed in Bulga (at [213]–[214]):

213. What is apparent in Spigelman CJ's use of the phrases "fundamental element" and "focal point" is that the Commissioner had asked himself the wrong question or alternatively failed to take into account a relevant consideration. Section 79C required the decision-maker to consider the DCP. The terms of the DCP, including the specific planning controls it imposed, were therefore central to the decision-making process. The DCP could not be ignored. At the practical level, the decision-maker was required, at the least, to ask the question: what does the DCP provide insofar as the location of brothels is concerned? The Commissioner was not required to refuse the application because the standard specified in the DCP had not been observed. However, unless that question was asked, or unless the answer was already known, it would logically follow that consideration would not have been given to the DCP standard on the location of brothels, namely, a distance of 200 m from a place of worship.

214. Something more would usually be required than merely ascertaining what the mandatory considerations are that must be taken into account. A decision-maker may need to consider why it may be appropriate to not apply the subject matter of the mandatory consideration, such as a specified standard, or whether, in the particular application under consideration, the standard might be ameliorated by the imposition of conditions. Reasons may be advanced by an applicant as to why the subject matter of the mandatory consideration ought not to apply at all. These will also have to be considered. Much will depend upon the subject matter of the mandatory consideration and the nature and extent of the application under consideration.

48. In this case, the Commissioner posed the issue for determination as “does the development have excessive bulk as a result of the proposed modification” (at [12]). He found that it did, based on the evidence of Ms Morrish which he accepted (at [22]), because however minimal the proposed changes, in his opinion, their effect was to adversely impact the design intent of the building. This was because the result was to join together the distinctive vault forms on the roof which were designed to add visual interest to the top of the building and to reintroduce the bulk deleted from the original approval, effectively adding another floor, which was a matter of concern given that the development was already over the height and FSR controls. The modifications proposed meant that the vaults were no longer roof features but were actual floors in the development. By preferring the evidence of Ms Morrish, the Commissioner agreed that the extra floor space and changes to the roof structures were not required to enhance the amenity of the units.

49. The Commissioner did not, as was asserted by SDHA, consider his discretion to be either at large or, conversely, fettered. This is not the correct inference to be drawn from his comment (at [22]) that, “there must however be a point where any further variations become unacceptable”. Read reasonably (that is to say, not through the teeth of a fine toothed comb) and, importantly, in context, this statement by the Commissioner conveyed no more than the fact that, in his view, the existing approved variations of the controls concerning height and FSR in the LEP could be justified given the adaptive reuse of the building, but that where the further variations to the controls sought by SDHA could not. By focussing on the word “any” in the Commissioner’s reasons, SDHA ignores the proceeding sentence, namely, that the Commissioner states that he was satisfied that “based on the evidence of Ms Morrish”, “this point had been reached”. The Commissioner was not saying that he would not consider the merits of any further proposed modifications to the consent, or that he had shut his mind to the proposal before him, rather, he was opining that in this instance, based on the evidence before him, he did not find the alternations acceptable. As Ms Morrish said in evidence, which the Commissioner was paraphrasing, “there is a point at which it all becomes too much and to my mind this is too much” (T41.39). The Commissioner’s conclusion was a finding of fact that was reasonably open and available on the material before him. It cannot be challenged in the manner proposed by SDHA.

50. This ground of appeal is accordingly rejected.

Taking Into Account Irrelevant Considerations

51. SDHA argued that the Commissioner took into account two irrelevant considerations: first, the fact “that it is difficult, if not impossible, to argue that the units need the additional amenity given the panoramic and even iconic views over Bondi Beach that will still be available without the additional floor area” (at [25]). The question of “need” for additional amenity does not, SDHA submitted, arise under s 79C of the EPAA and there was no requirement for it to establish this criterion; and second, that “the height standard must have some work to do in considering the appropriate height of a building on the site” (at [27]).

52. In respect of the first consideration, viz, need for additional amenity, there are two reasons why no relevant error is demonstrated in the Commissioner’s reasons under this ground of appeal. First, and although not addressed by SDHA in any of its submissions, as has been stated in countless cases, it is a matter of statutory interpretation as to whether or not the taking into account of an irrelevant consideration will vitiate a decision-maker’s decision (Minister for Aboriginal Affairs v Peko-Wallsend [1986] HCA 40; (1986) 162 CLR 24 at 39–40). Decision-makers regularly permissibly take into account matters that are not strictly, or at all, relevant to the exercise of power undertaken by them. The question is one of construction of the relevant legislation governing the exercise of power.

53. In this regard, s 79C(1) of the EPAA mandates that:

79C Evaluation

(1)    Matters for consideration-general In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application:

(a) the provisions of:

(i)    any environmental planning instrument, and

(ii)    any proposed instrument that is or has been the subject of public consultation under this Act and that has been notified to the consent authority (unless the Secretary has notified the consent authority that the making of the proposed instrument has been deferred indefinitely or has not been approved), and

(iii)    any development control plan, and

(iiia) any planning agreement that has been entered into under section 93F, or any draft planning agreement that a developer has offered to enter into under section 93F, and

(iv)    the regulations (to the extent that they prescribe matters for the purposes of this paragraph), and

(v)    any coastal zone management plan (within the meaning of the Coastal Protection Act1979),

that apply to the land to which the development application relates,

(b)   the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality,

(c)    the suitability of the site for the development,

(d)   any submissions made in accordance with this Act or the regulations,

(e)    the public interest.

54. The provision is silent on what other matters a consent authority may take into account. But this does not, as SDHA repeatedly asserted, mean that if a consent authority (in this case the Commissioner) takes into account matters outside those prescribed in s 79C, that it will have automatically erred on a question of law.

55. The question was not, as SDHA incorrectly submitted, whether the considerations in s 79C “required an applicant to demonstrate a need for additional amenity”, but whether the Commissioner was proscribed from taking such a matter into account as a matter of statutory construction.

56. Having regard to the text, subject-matter, scope and purpose of s 79C of the EPAA, there is nothing, as a matter of ordinary construction, in that section that would justify the Commissioner’s decision being set aside by reason of his treatment of the additional internal amenity the proposed modifications were claimed by SDHA to bring to the development.

57. Second, SDHA, once again, seeks to criticise the Commissioner for an issue that it unequivocally raised before him.

58. In Architectus Group Pty Ltd’s Statement of Evidence dated 10 October 2014, on behalf of SDHA, Mr Harrison stated at paragraph 33(a) that (emphasis added):

The additional floor space at this level [above Level 5 within the vaults] has been approved, and is considered to have no detrimental impact on the locality, whilst providing enhanced living areas and amenity to the subject apartments without compromising the original design intent of the vaults.

59. In the joint experts’ urban design report with Ms Morris, under “Points of disagreement”, Mr Harrison responded to the opinion expressed by Ms Morrish (on p 4 at paragraph 7) that “the need for extra floor space and vaults to enhance the amenity of the units is not required”, by opening that (on p 4 and 5 at paragraph 3, emphasis added):

The proposal greatly adds to the amenity of two apartments by having a master bedroom facing the ocean view rather than to the rear... MH spoke to design Architect Andrew Andersons who said that if he was designing the development today he would have ensured that master bedrooms in such premium apartments would also have an ocean view where possible.

60. In his oral evidence Mr Harrison relied upon the enhanced amenity that the proposed modifications would bring to the bedrooms. He stated in cross-examination (T32.10–32.44, emphasis added):

STAUNTON: Mr Harrison, can I just ask you this just a question of factual matter? The height for this site is 15 metres, is that right?

WITNESS HARRISON: Yes

STAUNTON: This whole floor commences and finishes above that 15 metre height limit, doesn’t it?

WITNESS HARRISON: Yes.

STAUNTON: The only justification that you’d put forward for that, on a merit basis, is that it will be difficult to discern and has no environmental impact, is that right?

WITNESS HARRISON: No, not really. The, the, the, the only way that this site was going to be improved was, was some form of adaptive reuse to the existing built form which were in excess of the planning control height limit, so it needs to be thought about in that context.

STAUNTON: Right, but hasn’t that already been achieved by the approval prior to the modification?

STAUNTON: Okay, so then if I went back to what I put to you in my original proposition, the justification you’ve got you would add to can’t see it, you would add to that it improves the amenities of those two units?

WITNESS HARRISON: Yes.

STAUNTON: Is that it?

WITNESS HARRISON: Yes, that’s it.

WITNESS HARRISON: Yes, that, that has been achieved, but doesn’t mean you can’t do something better and that’s what has been attempted here is to improve the amenity of two of the apartments in the development.

61. He subsequently repeated the importance of the amenity added to the master bedroom (T44.03–44.15):

WITNESS HARRISON: I’d just like to mention – I do, I do say in the joint report that the architect for this proposal is Andrew Anderson, a very distinguished Australia architect, and I wanted to ask him about the amenity of the master bedroom and, and he said – and I agree – the, the advantage of having a master bedroom facing the ocean view gives extraordinary additional amenities for these two apartments than the bedroom solely facing the other direction over Gould Street, and so I think that amenity is really quite important and the fact that you really can’t see these two vaults is, is an important consideration and then the other aspect is maintaining an interesting profile room form, but even though these small vaults do connect to their adjacent vaults, it’s only quite a short length and the overall intent of separated discrete vaults is, is to maintain as far as really I think any casual observer would ask that question I’m sure would, would agree.

62. The issue was therefore directly responded to by Ms Morrish in her oral evidence (T33.38–33.49).

63. The importance of the benefit of the additional amenity was repeated by SDHA in its opening and closing submissions (T5.25–5.30, T8.05–8.10 and T53.45–53.50).

64. The reference to the need for increased amenity by the Commissioner was therefore in direct response to the issue having been directly agitated by SDHA. Indeed, had the Commissioner omitted to deal with the matter, he would arguably have been in error for failing to do so.

65. In respect of the second consideration, namely, the Commissioner’s reference to the height standard having “work to do”, again the alleged error identified by SDHA is premised upon a misreading of the Commissioner’s reasons. I agree with the council that the Commissioner was doing no more than stating that the inability to see the non-complying element of height did not justify yet another breach of that control. In coming to this conclusion, he was paraphrasing the evidence of Ms Morrish which he accepted and relied upon (see at [22]). It was an entirely justifiable and permissible conclusion of fact.

66. By way of illustration, after referring to the objectives underpinning the initial consent to the development and the exceedance of the height controls, that is, to improve the visual appearance of the roof by the vaulted elements in order to break up the roof “so that you didn’t get the flat plane slab” (T33.01), Ms Morrish said (T33.09–33.36, emphasis added):

What worries me is that in this instance we don’t have either of those objectives in play, they’ve already been satisfied by the previous approval, so the only objective we’re getting now is one of needing additional amenity. I don’t agree with that as being necessary and I’ll talk about that in a sec, but the exceedance of the controls now don’t seem to me to have a purpose other than just expanding that floor to really create a sixth floor and that worries me because they’ll think it’s starting to undermine the intent of the control, because it’s not about visual interest anymore, its now about “well let’s just build more and more of the floor in so we can gain more floor space” and I think it’s actually undermining the original reason it was approved, because of that, because in joining these voids or these vaults altogether, you’re beginning to expand right across these voids or these vault all together, you’re beginning to expand right across the roof or certainly over that western portion of it and I think that begins to say that the height control doesn’t have a job to do anymore and that the new desired future character in this area is going to be a street wall with an exposed floor above it, be it set back or not.

The previous approvals in my opinion didn’t do that because they kept the discrete elements, so now it’s a combination of beginning to undermine, I think, the intent of that height control and you’ve still got the exceedance and a significant exceedance of the FSR combined with that and I think it’s beginning to be a justification for other buildings around us to come in and say “Well I want an additional floor” and that was allowed to happen and I think it’s also potentially giving a green light to filling in all the holes between all the other vaults as well, so you’re almost going to have the risk of it re-establishing a whole new roof plan, will that then also need visual interest, and where does it stop? So my concern is it’s just, it’s just expanding for no good reason, more and more floor space up on that level. I also think flexibility’s already been given to these controls in that regard.

67. The Commissioner was entitled to accept Ms Morrish’s evidence, which was relevant to a principal contested issue. No error is disclosed by him doing so.

68. For the reasons given above, this ground of appeal must therefore be dismissed.

Failure to Give Reasons in Respect of a Principally Contested Issue

69. A duty to give reasons has been described as “a necessary incident of the judicial process” (Keith v Gal [2013] NSWCA 339 at [109]), which has been emphasised by the High Court (Wainohu v State of New South Wales [2011] HCA 24; (2011) 243 CLR 181 at [54]–[58] and [92]). Failure to comply with this duty denies “both the fact and the appearance of justice having been done” and will result not only in a miscarriage of justice (Mifsud v Campbell (1991) 21 NSWLR 725 at 728 and Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430 at 442 per Meagher JA, both quoted in Gal at [109]), but an error of law (Beale at 444).

70. A summary of the applicable general legal principles in respect of the duty to give reasons was helpfully compiled by Biscoe J in Greenwood v Warringah Council [2013] NSWLEC 223; (2013) 200 LGERA 190 (at [23]). It is not presently necessary to reproduce these principles, well known as they are, in full, rather it is sufficient to note that that they have been endorsed in other decisions of this Court (SJ Connelly CPP Pty Ltd v Byron Shire Council [2014] NSWLEC 2; (2014) 199 LGERA 263 at [79] and Norm Fletcher & Associates Pty Limited v Strathfield Municipal Council [2014] NSWLEC 157 at [34]) and have been respectfully adopted and applied in the present appeal.

71. As to the level of scrutiny that should be afforded to the reasons of a commissioner on a s 56A appeal, in Brimbella Pty Ltd v Mosman Municipal Council (1985) 79 LGERA 367 Kirby P said (at 368):

…I believe that it is undesirable in an appeal from a lay tribunal where the appeal court is confined to a question of law, that it should examine too narrowly the words used in the decision, at least unless the words are central to the decision involved …

Here, the parliament has specifically envisaged a tribunal which included lay assessors. It would be quite wrong, in my opinion, for this court to examine their decisions as if they were written by a lawyer. I am not, by these comments, suggesting double standards; simply that the Court should take into proper account the composition of the tribunal, as it has been created by the Parliament.

72. Such an approach has been endorsed in subsequent cases (Carstens v Pittwater Council [1999] NSWLEC 249; (1999) 111 LGERA 1 at [68] and Bonim Stanmore Pty Ltd v Marrickville Council [2007] NSWLEC 286; (2007) 156 LGERA 12 at [6]–[7]).

73. There remains, therefore, an unresolved tension between, on the one hand, the Court of Appeal’s statement in Brimbella that consideration of the judgment of a commissioner, who is not legally qualified, exercising a merits review jurisdiction should be examined with the consideration that it is not written by a lawyer and, on the other, the pronouncement by that Court in Botany Bay City Council v Farnworth Holdings Pty Ltd [2004] NSWCA 157 (at [11]) that commissioners have no less onerous a duty to give reasons than judges.

74. Relevantly for present purposes, in relation to the extent to which reasons should deal with evidence, sometimes “the need for coherent and tolerably workable reasons sometimes require truncation of reference and expression” (Mitchellv Cullingral Pty Ltd [2012] NSWCA 389 at [2]). The test is one of relative adequacy (see Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 at [56]–[66] per McColl JA and Gal at [113] per Gleeson JA).

75. Although a failure to refer to only some of the evidence does not indicate that a commissioner has failed to discharge his or her duty, for a commissioner to ignore evidence critical to an issue in a case and contrary to an assertion of fact made by one party, and accepted by the commissioner, may result in breach of the duty (Mifsud at 728).

76. Furthermore, it is imperative that a commissioner refer to evidence that is critical or important to the proper determination of the matter. This does not mean that the evidence must be referred to in turgid and lengthy detail (Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 280), especially where it is clear, either explicitly or implicitly, that the evidence has been considered (Beale at 443). Nor does the duty call for all conflicts of fact to be resolved, or an express description of every step in the chain of reasoning to be disclosed (Stoker v Adecco Gemvale Constructions Pty Ltd [2004] NSWCA 449 at [41]). But if critical evidence is not adverted to, an appellate court may infer that the commissioner has overlooked the evidence or has failed to consider it (Beale at 443).

77. Bald statements simply preferring one piece of evidence to another should be avoided. The reasoning process on a critical evidential contest between the parties must be exposed (Goodrich Aerospace Pty Ltd v Arsic [2006] NSWCA 187; (2006) 66 NSWLR 186 at [28] per Ipp JA and Pollard at [66] per McColl JA).

72. These principles are particularly apposite in the case of contests between expert witnesses (Wiki v Atlantis Relocations (NSW) Pty Ltd [2004] NSWCA 174; (2004) 60 NSWLR 127 Ipp JA at [61] and Basten JA in Ziliotto v Hakim [2013] NSWCA 359 at [2]–[6]).

73. In summary (Mitchell at [116] per Campbell JA quoted in Gal at [112]):

116    A trial judge has a duty to refer to material evidence and make findings about material issues in the case: Waterways Authority v Fitzgibbon [2005] HCA 57; (2005) 79 ALJR 1816 at [130] (Hayne J). The absence of such findings and the absence of reference to such evidence can properly be taken as showing that the trial judge has erroneously overlooked or discarded it: ibid; Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 at 443-444 (Meagher JA); Whalan v Kogarah Municipal Council [2007] NSWCA 5 at [40] (Mason P, Ipp JA and Tobias JA); Najdovski v Crnojlovic [2008] NSWCA 175; (2008) 72 NSWLR 728 at [21] (Basten JA, Allsop P agreeing); Sangha v Baxter [2007] NSWCA 264 at [22] (Ipp JA, Campbell JA agreeing); Nominal Defendant v Kostic [2007] NSWCA 14 at [59] (Ipp JA, Hodgson JA and Campbell JA agreeing). Another way in which this has been put is that the judge must engage with, or grapple or wrestle with, the cases presented by each party: Whalan at [40]; Kostic at [2]. This is not adequately done by setting out the evidence adduced by one side, setting out the evidence on the other side, and saying that the judge prefers one body of evidence to another: Goodrich Aerospace Pty Ltd v Arsic [2006] NSWCA 187; (2006) 66 NSWLR 186 at [28] (Ipp JA, Mason P and Tobias JA agreeing); Kostic at [58].

80. Thus in Boral Cement Pty Ltd v SHCAG Pty Ltd; Minister for Planning and Infrastructure v SHCAG Pty Ltd [2013] NSWLEC 203, Pain J upheld an appeal in respect of a decision by two commissioners who refused a major project approval for the continued operation of the Berrima colliery. Her Honour held that the commissioners had failed to identify in their judgment the basis in the evidence for their conclusion that the development would cause significant environmental harm by reason of the dewatering of the Hawkesbury sandstone groundwater aquifer; had failed to expressly state why they preferred one expert’s evidence over another; and had failed to analyse the extent of any disagreement in terms of the issues framed by the parties (at [90]–[96]).

81. A similar conclusion was reached in SJ Connelly in relation to a commissioner’s reasons for making findings based on the evidence of a particular expert without adequately disclosing the basis for her preference of one expert witness over another.

82. In this appeal, SDHA submitted that the Commissioner did not evaluate the evidence of Mr Harrison or deal with the principal contentions raised in its case. Instead, “the Commissioner merely referred to Mr Harrison giving evidence [13] but that was all” (at [35] of SDHA’s written submissions). On one view, the submission does no more than restate the rejected grounds discussed above. During oral argument, however, it was clarified to encompass no more than a complaint about the adequacy of the reasons of the Commissioner in finding in the council’s favour on the issue of the excessive visual bulk of the proposed modifications to the development occasioned by the new roof design.

83. The submission cannot be maintained. The Commissioner set out the evidence of Ms Morrish (at [14]–[17]) and then the evidence of Mr Harrison (at [18]–[21]). It is therefore not correct for SDHA to assert in its submissions either that the Commissioner “did not refer to Mr Harrison’s evidence at all” or that the Commissioner simply referred to him giving evidence at [13] “but that was all”.

84. In “balancing the competing evidence” (at [22]), the Commissioner agreed with the conclusions of Ms Morrish but, critically, unlike, SHCAG or SJ Connelly, proceeded to give four reasons for doing so (at [22]–[27]). Implicit in each reason was a cognate rejection of Mr Harrison’s evidence on that topic. For example, the issue of additional amenity was, as the discussion above under the second ground of appeal indicates, raised by Mr Harrison in his evidence. It was rejected by the Commissioner for the reasons given by Ms Morrish in her evidence, which were adopted by the Commissioner. Although spare, there was nothing impermissible about the Commissioner’s reasoning in doing so. In conformity with the legal principles set out above, the Commissioner was not obliged to address and evaluate each and every individual argument advanced by Mr Harrison in support of SDHA’s application.

85. The arguments included the various ways that it was asserted by SDHA that the proposed modifications would not increase the visual bulk of the building. Take by the way of example, contentions concerning the visibility of the altered roofline and the erection of height poles. There was ample evidence before the Commissioner that the proposed modifications could be seen from Bondi Beach and various other locations (see T30.4–32.09 and 33.42– 33.49). A fact that was conceded by Mr Harrison (T14.48–15.01 and T30.04 – 33.37). It was sufficient that the Commissioner had regard to the evidence regarding the visibility of the roof-line and the placement of the poles (which is demonstrated by his reference to the fact that “even though the additional floor area will not be viewed from all locations around the site, the vaulted structures on the roof can be viewed from certain locations near the beach and from other apartments to the west of the site” (at [26]) and determined, as a question of fact, that the proposal would unacceptably reintroduce mass and bulk that was contrary to the underlying objectives of the approved development.

86. To the extent that the Commissioner was additionally criticised under this ground of appeal for his comment that the “height standard must have some work to do” without further explanation, again, read fairly and in its wider context, all that the Commissioner was endeavouring to say was that the limited visibility of a non-complying element of height was not a sufficient justification of itself to breach a height control. This is another way of stating the proposition that a finding of absence of (or limited) environmental harm is not an appropriate basis upon which to grant a modification which permits a breach of development control (height or, for that matter, FSR) (Hooker Corporation Pty Ltd v Hornsby Shire Council (1986) 130 LGERA 438 at 441 per Cripps JA). In other words, “the Court must assume a development standard in a planning instrument has a purpose” (Hooker at 441 per Cripps JA). No error is disclosed by the Commissioner’s reasons in this regard.

87. In my opinion, having regard to the principal contested issue that was the subject of the appeal before me, the Commissioner’s reasoning was adequate and this ground of appeal fails.

Exclusionary Remitter

88. Because SDHA has not been successful in in any of the grounds of appeal it has pursued, it follows that the appeal must be dismissed. As a consequence, it is unnecessary for me to determine the question of whether, had the SDHA enjoyed success, its request for an exclusionary remitter pursuant to s 56A(2)(b) of the Land and Environment Court Act should have been entertained.

Costs

89. Both parties sought their costs depending upon the outcome of the appeal.

90. Relevantly, the council submitted that costs ought to follow the event on that basis that either r 3.7(2) of the Land and Environment Court Rules 2007 (“the LEC Rules”) did not apply or, if it did, by reason of the application of r 3.7(3)(a) of those Rules.

91. Rule 3.7 provides as follows (emphasis added):

Costs in certain proceedings

3.7 Costs in certain proceedings

(1) This rule applies to the following proceedings:

(a) all proceedings in Class 1 of the Court’s jurisdiction,

…

The Court is not to make an order for the payment of costs unless the Court considers that the making of an order as to the whole or any part of the costs is fair and reasonable in the circumstances.

Circumstances in which the Court might consider the making of a costs order to be fair and reasonable include (without limitation) the following:

(a)    that the proceedings involve, as a central issue, a question of law, a question of fact or a question of mixed fact and law, and the determination of such question:

(i)    in one way was, or was potentially, determinative of the proceedings, and

(ii) was preliminary to, or otherwise has not involved, an evaluation of the merits of any application the subject of the proceedings,

(b)    that a party has failed to provide, or has unreasonably delayed in providing, information or documents:

(i)    that are required by law to be provided in relation to any application the subject of the proceedings, or

(ii)    that are necessary to enable a consent authority to gain a proper understanding of, and give proper consideration to, the application,

(c)    that a party has acted unreasonably in circumstances leading up to the commencement of the proceedings,

(d) that a party has acted unreasonably in the conduct of the proceedings,

(e) that a party has commenced or defended the proceedings for an improper purpose,

(f) that a party has commenced or continued a claim in the proceedings, or maintained a defence to the proceedings, where:

(i)    the claim or defence (as appropriate) did not have reasonable prospects of success, or

(ii)    to commence or continue the claim, or to maintain the defence, was otherwise unreasonable.

92. In my opinion, the words of r 3.7(1) of the LEC Rules make it unarguable that r 3.7(2) applies (“all proceedings in Class 1”), the s 56A appeal having been commenced by summons in Class 1 of the Court’s jurisdiction.

93. Furthermore, in my opinion, the fact that the proceedings involve a question of law with the characteristics described in r 3.7(3)(a) of the LEC Rules does not, without more, mean that, in my view, it is fair and reasonable in the circumstances to depart from the presumptive rule (Arden Anglican School v Hornsby Shire Council [2008] NSWLEC 103; (2008) 158 LGERA 224 at [9] per Biscoe J) contained in r 3.7(2). This is because every s 56A appeal involves, as it must in order to engage the Courts’ jurisdiction to hear the appeal, a question of law determinative of the proceedings. Were it otherwise, the no discouragement principle that underpins the no costs rule contained in r 3.7(2) or the LEC Rules, particularly insofar as it applies to planning appeals (Arden at [10] and Sansom at [22]–[23], cf Thaina Town (On Goulburn) Pty Ltd v City of Sydney Council [2007] NSWCA 300; (2007) 156 LGERA 150 at [75]–[76]), would be severely eroded.

94. Each side raised matters that were fairly arguable and I am not aware of any disentitling circumstances either in the preparation, or conduct, of the appeal of the character described in r 3.7(3) of the LEC Rules (which are not, in any event, prescriptive criteria that the Court must apply in deciding whether a costs order should be made: Community Association DP270253 v Woollahra Municipal Council [2015] NSWCA 80 at [16]) that would cause me to exercise my discretion in a manner adverse to SDHA. As poorly drafted as the summons was, given the narrowing of the myriad of possible grounds of appeal in SDHA’s written and oral submissions, this would not warrant the imposition of a costs order in the council’s favour.

95. The council was required to establish some aspect of the conduct of SDHA, as a litigant in the Class 1 proceedings, that made it fair and reasonable that the Court would “cause the prima facie position prescribed by r 3.7(2) to be replaced by a situation in which” SDHA was required to pay the council’s costs (Community Association at [55] per Barrett JA). On the material before me, the council has failed to do this and each party should bear their own costs of the appeal.

Orders

96. The orders of the Court are, therefore, that the summons is dismissed and the exhibits are to be returned.

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Decision last updated: 24 April 2015