Segal v Waverley Council - [2005] NSWCA 310

No judgment structure available for this case.

Reported Decision:
64 NSWLR 177

Court of Appeal

CITATION:
Segal & Anor v Waverley Council [2005] NSWCA 310
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S):
9 June 2005

JUDGMENT DATE:

15 September 2005

JUDGMENT OF:
Beazley JA at 1; Tobias JA at 2; Basten JA at 102

DECISION:
(1) Appeal allowed; (2) Set aside the orders made by Lloyd J on 20 July 2004; (3) The appeal by the respondent pursuant to s 56A of the Land and Environment Court Act 1979 against the decision and orders of Commissioner Watts of 27 February 2004 be dismissed; (4) The respondent pay the appellants' costs of the appeal before Lloyd J and before this Court but to have with respect to the latter a certificate under the Suitors' Fund Act, 1951 if otherwise entitled thereto.

CATCHWORDS:
ENVIRONMENT AND PLANNING - Decision of Commissioner of Land and Environment Court granting development consent - Earlier decision by different Commissioner refusing similar application in relation to neighbouring property - No reference to earlier decision - Whether Commissioner bound to follow earlier decision - APPEALS - Error of law - Duty to make findings - Judicial comity - Relevance of practice of judge at first instance following earlier decision of judge of co-ordinate jurisdiction - Duty to give reasons - Principal contested issues - Whether Commissioner's failure to refer to earlier decision constituted an error of law - ADMINISTRATIVE LAW - Relevance of principle of consistency in administrative decision-making

LEGISLATION CITED:
Administrative Appeals Tribunal Act 1975 (Cth)
Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979
Migration Act 1958 (Cth)
Waverly Local Environment Plan 1996

CASES CITED:
Applicant WAIW of 2002 v Minister of Immigration and Multicultural and Indigenous Affairs [2002] FCA 1621
Baulkham Hills Shire Council v Basemount Pty Limited (2003) 126 LGERA 339
Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430
Botany Bay City Council v Farnworth Holdings Pty Limited [2004] NSWCA 157
Comcare Australia v Matheson (2004) 79 ALD 518
Comcare v Forbutt [2000] FCA 837
Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088
Flannery v Halifax Estate Agencies Limited [2000] 1 WLR 377
Housing Commission of New South Wales v Tatmar Pastoral Co Pty Limited [1983] 3 NSWLR 378
Ibrahim v Minister for Immigration and Multicultural Affairs (2000) 63 ALD 37
Michael Realty Pty Limited v Carr [1975] 2 NSWLR 812
Mifsud v Campbell (1991) 21 NSWLR 725
Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24
Minister for Immigration and Multicultural Affairs v Singh (2000) 98 FCR 469
Minister for Immigration and Multicultural Affairs v Wang (2003) 215 CLR 518
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323
NABW v Minister for Immigration and Multicultural Affairs [2002] FCA 464
Nevistic v Minister for Immigration and Ethnic Affairs (1981) 34 ALR 639
North Sydney Council v Ligon 302 Pty Limited (1995) 87 LGERA 435
Soboleva v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 353
Soulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247
TelePacific Pty Limited v Federal Commissioner of Taxation [2005] ATC 4107
Witharana v Minister for Immigration and Multicultural Affairs (Unreported, Federal Court of Australia, Wilcox J, 21 December 1998)

PARTIES:
Julian Segal
Lucille Melanie Segal
Waverley Council

FILE NUMBER(S):
CA 040671/04

COUNSEL:
A: Stephen Gageler SC / Ian Hemmings
R: John Griffiths SC / Jayne Jagot

SOLICITORS:
A: Morgan Lewis Alter, Sydney
R: Staunton Beattie, Sydney

LOWER COURT JURISDICTION:
Land & Environment Court

LOWER COURT FILE NUMBER(S):
L&E 10547/03

LOWER COURT JUDICIAL OFFICER:
Lloyd J

CA 040671/04

BEAZLEY JA
TOBIAS JA
BASTEN JA
Thursday 15 September 2005

JULIAN SEGAL & LUCILLE MELANIE SEGAL v WAVERLEY COUNCIL

FACTS

Mr and Mrs Darling (the Darlings) and Mr and Mrs Segal (the Segals) each sought to construct a garage on their respective, neighbouring properties at Gardyne Street, Bronte. The construction of the proposed garages involved creating an opening in a sandstone retaining wall (the wall) which was erected along the street frontage of both properties and which was identified as a landscape heritage item under the local environmental plan.

The applications of both the Darlings and the Segals to Waverly Council (the Council) to construct their respective garages were rejected. Both applicants appealed to the Land and Environment Court. The Darlings’ appeal was heard by Commissioner Moore who dismissed the appeal on the basis that the proposed opening in the wall would have an unacceptable impact upon its heritage significance. The Segal’s appeal was heard by Commissioner Watts. Notwithstanding that it was submitted to him that the public’s confidence in consistency in decision-making required that he follow the decision of Commissioner Moore, Commissioner Watts granted consent to the Segals’ proposed garage and, in his published reasons, neither referred to Commissioner Moore’s decision nor provided reasons as to why he came to a different conclusion.

The Council appealed to a judge of the Land and Environment Court, contending that by failing to consider the decision of Commissioner Moore and/or to give reasons as to why he declined to follow it, Commissioner Watts made an error of law. Lloyd J upheld the Council’s appeal. It was against that decision that the Segals appealed to the Court of Appeal.

HELD per Tobias JA (Beazley and Basten JJA agreeing) allowing the appeal:

(1) Commissioner Watts was bound to consider the principal contested issues that had been joined between the parties ([43]-[44], [97]).

Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 distinguished.

(2) The only principal contested issue before Commissioner Watts was whether the proposal would have an unacceptable impact of upon the heritage significance of the wall ([81], [88], [90], [92], [97]).

(3) Commissioner Watts addressed that issue in a manner which conformed to his duty to give reasons ([81], [88], [91], [94], [97]).

Housing Commission of New South Wales v Tatmar Pastoral Co Pty Limited

Soulemezis v Dudley (Holdings) Pty Limited

Mifsud v Campbell

North Sydney Council v Ligon 302 Pty Limited

Comcare v Forbutt

Flannery v Halifax Estate Agencies Limited

(4) Commissioner Watts was neither bound to follow the decision of Commissioner Moore nor to take it into consideration if he considered it irrelevant to the resolution of the principal contested heritage issue which he was required to consider ([58]-[60], [96]).

NABW v Minister for Immigration and Multicultural Affairs

(5) Although it may have been desirable for Commissioner Watts to have referred to the earlier decision of Commissioner Moore, given the somewhat unique circumstances under which the two decision were made, his failure to do so did not constitute an error of law. The primary judge was in error in holding to the contrary ([55]-[56], [63], [97]).

(6) Although raised before Commissioner Watts, the principle of consistency in administrative decision-making was not a principal contested issue in the relevant sense ([90], [97]).

(7) Furthermore, the so-called principle of consistency in administrative decision-making has no application to adversarial proceedings where the merits of any particular application depend upon the circumstances of the case and the issues joined between the parties. The concept is more appropriately applied to true administrative decision-making at the level of executive or local government ([51], [93]).

(8) In the context of environmental planning, consistency in the application of planning principles is clearly desirable but it does not follow that a consistent application of those principles will result in the same outcome in each particular case ([94]).

CA 040671/04

BEAZLEY JA
TOBIAS JA
BASTEN JA
Thursday 15 September 2005

JULIAN SEGAL & LUCILLE MELANIE SEGAL v WAVERLEY COUNCIL

Judgment

1 BEAZLEY JA: I agree with Tobias JA.

2 TOBIAS JA: Mr and Mrs Darling (the Darlings) wished to construct a garage on their property at No. 57 Gardyne Street, Bronte. Mr and Mrs Segal (the Segals), who lived next door at No. 55A Gardyne Street, Bronte, also wished to construct a garage on their property. Erected along the street frontage of both properties was a sandstone retaining wall (the retaining wall). It was necessary to create an opening in that wall in order to provide vehicular access for the proposed garages. However, Gardyne Street (including the retaining wall but not the two properties) was located within a Heritage Conservation Area – Landscape, identified as such in Schedule 5 to Waverley Local Environmental Plan 1996 (the LEP). It was common ground that the retaining wall, which the Darlings and Segals sought to breach, was a landscape heritage item under the LEP.

3 Both the Darlings and the Segals made application to Waverley Council (the Council) to construct their respective garages. Both applications were refused. Both applicants appealed to the Land and Environment Court. Commissioner Moore heard the Darlings' appeal. He dismissed the appeal generally upon the basis that the proposed aperture in the retaining wall to provide access to the proposed garage would have an unacceptable impact on the integrity of that section of Gardyne Street, which was a landscape heritage item.

4 Commissioner Watts heard the Segals' appeal. It was submitted by the Council that the public's confidence in consistency in decision-making required that he follow the decision of Commissioner Moore and refuse the Segals' application for the same reasons. Notwithstanding this submission, Commissioner Watts granted development consent to the garage including the breaching of the retaining wall to provide access thereto. In his published reasons he neither referred to Commissioner Moore's decision nor provided reasons as to why he had came to a different decision.

5 The Council appealed to a judge of the Land and Environment Court pursuant to s 56A of the Land and Environment Court Act 1979 (the Court Act) against Commissioner Watts' decision. That appeal, as well as the Segals' appeal to this Court, was confined to questions of law. The Council contended that by failing to refer to or consider the decision of Commissioner Moore and/or to give reasons as to why he was not prepared to follow that decision, Commissioner Watts had erred in law. The primary judge, Lloyd J, acceded to this submission and, on 20 July 2004, allowed the Council's appeal, set aside the decision and orders of Commissioner Watts and remitted the proceedings to the Court for rehearing and redetermination in conformity with law. The Segals sought this Court's leave to appeal from the decision of his Honour pursuant to s 57(3)(b) of the Court Act.

6 The substantive appeal was heard concurrently with the leave application. At the end of the oral argument the Court granted the Segals leave to appeal and reserved its decision on the substantive appeal.

The issue before the Commissioners

7 It was common ground in both cases that, pursuant to clause 45(1) of the LEP, development consent was required to create the proposed opening or aperture in the retaining wall. In determining whether to grant any such consent the Council, and the Land and Environment Court on appeal, was required by the LEP to take into consideration the likely effect of the proposed development on the heritage significance of the wall. By definition, the "heritage significance" of the retaining wall relevantly included its historic, cultural, social, archaeological, architectural, natural and aesthetic significance.

8 As the retaining wall remained in a consistent and uninterrupted form to the eastern end of Gardyne Street, the central issue was whether the creation of the proposed aperture or opening in the wall would have an unacceptable impact in that it would adversely affect its heritage significance. A subsidiary issue in both matters was whether the granting of consent to the aperture would create an undesirable or unacceptable precedent.

The decision of Commissioner Moore

9 Commissioner Moore gave his decision by way of an ex tempore judgment on 18 December 2003. He considered the evidence of heritage experts called by each side. The expert called by the Council was Mr Ian Stapleton who was also called by the Council to support its case in the Segals' appeal to Commissioner Watts.

10 After considering the evidence of both experts as well as a written submission made on behalf the Bronte Beach Heritage Society, which the Commissioner considered reflected some part of the community esteem in which the landscape of the relevant portion of Gardyne Street was held by the local community, he concluded in the following terms (at [49]):

"As a consequence or consideration of all those elements I am satisfied, on balance, that the evidence of Mr Stapleton with respect to the impact on the integrity of the intact section of Gardyne Street is unacceptable and that the proposal of the applicant does not constitute adaptive re-use."

11 The Commissioner then considered what he referred to as the "competing claims for public and private benefits". The public benefit was the retention of the retaining wall intact. The private benefit was the ability of the Darlings and their family to obtain off-street parking. The latter included the minimisation of conflict between traffic in Gardyne Street and the Darlings' young children which currently occurred because of the requirement for the Darlings to park in the street rather than in a garage upon their own land. The Commissioner resolved this issue in the following terms (at [55]):

"I have turned to consider whether or not the issue of safety for the Darling family and their young children might, founded upon clause 2(c) of the LEP, provide them with sufficient support to overcome the otherwise insurmountable public interest in the retention of the heritage item. I have, with a degree of regret, come to the conclusion that it is not appropriate to do so. I have considerable sympathy with them considering the difficulties that they have in access to their property, but I am satisfied that on balance it is not sufficient to trigger me to set aside the broader public interest."

The decision of Commissioner Watts

12 The hearing of the Segals' appeal to Commissioner Watts proceeded on 29, 30 and 31 October 2003, that is, before Commissioner Moore gave his decision on 18 December 2003. However, on the last of those days the hearing was adjourned to 23 February 2004 to allow the Council to carry out some further research with respect to the provenance of the retaining wall. When the hearing resumed, further evidence was given and counsel addressed. The Commissioner reserved his decision which he gave on 27 February 2004. Although I shall return to the detail below, during the course of submissions the Council referred to the judgment of Commissioner Moore and provided Commissioner Watts with a copy thereof. It submitted that the refusal of Commissioner Watts to follow and apply that decision would

"induce lack of public confidence in the decision making."

13 In his judgment Commissioner Watts made no reference to the decision of Commissioner Moore and, as a consequence, did not expressly state reasons for declining to follow that decision. Nevertheless, the Commissioner considered in some detail the evidence before him which included that of both the Segals' heritage consultant (Mr Brooks) and Mr Stapleton, the heritage consultant retained by the Council. Again it was common ground that the "main issue" was whether the proposed opening in the retaining wall should be approved given its impact upon the significance of that item of landscape heritage.

14 During the course of the proceedings Mr Stapleton, although maintaining his view that the application should be refused, made a number of suggestions which, if adopted, would reduce the impact of the proposed opening in the face of the retaining wall. In this respect, the Commissioner noted that that opening was to be a "single-car entrance of a width of 4.875 metres at the street boundary". He referred to Mr Stapleton's conclusion that the proposal would have a notable impact on the aesthetic, social and rarity aspects of the significance of the place and was therefore undesirable, and to the evidence of Mr Brooks that on the basis of the amendments proposed by Mr Stapleton which the Segals were prepared to adopt, there was no unacceptable or adverse impacts on the heritage significance of the wall. The Commissioner then concluded in these terms (at [75]):

Banksia integrifolia

15 In accordance with what had been a practice since about September 2003 of the Commissioners of the Land and Environment Court in expressing their decisions in Class 1 merit appeals, Commissioner Watts set out (at [81]) the planning principles which, he noted, "might be applied in similar situations". Those principles were as follows:

16 In a paper delivered to a Joint Conference of the Land and Environment Court and the Victorian Civil and Administrative Tribunal on 6 May 2005, Dr John Roseth, the Senior Commissioner of the Court, observed under the heading "Establishing planning principles":

"There are ten commissioners in the Court, and all commissioners initiate planning principles as they come across issues that, in their opinion, have general application. Since a planning principle published in a judgment obliges commissioners dealing with similar issues to, at least, consider the principle established earlier, the commissioners find it useful to consult with each other. The practice is to circulate the principle in draft form and invite the others to comment, amend, delete or add to the draft version. Comments from other commissioners are a particularly useful test."

17 In the present case it is to be noted that whereas Commissioner Watts stated the planning principles which he regarded as applicable to the type of application before him, no such principles were articulated in the judgment of Commissioner Moore. I shall return to this point later in these reasons.

The appeal to the primary judge

18 The Council submitted before the primary judge that the disposition of its appeal related to the decision of Commissioner Moore and its significance to the application which had been before Commissioner Watts. It contended that the latter's failure to provide reasons as to whether the principles of consistency in decision-making should be applied constituted an error of law. Further, it was submitted that the Commissioner's failure to consider the public interest in the maintenance of consistency in administrative decision-making by reference to Commissioner Moore's decision also constituted an error of law. Accordingly, the appeal should succeed and the proceedings be remitted back to a Commissioner other than Commissioner Watts for rehearing upon the ground that there was a reasonable apprehension of pre-judgment by Commissioner Watts in the circumstances.

19 The Segals submitted that Commissioner Watts was not bound by the decision of Commissioner Moore and that there was no authority for the proposition that he was bound either to consider that decision or to set out reasons why he distinguished it from that the subject of his own determination or otherwise declined to follow and apply it. Given that it was not suggested by the Council that Commissioner Watts had not applied the correct planning principles to his merit assessment of whether the retaining wall could be breached in accordance with the particular application before him, it followed that Commissioner Moore's decision on the merits of the particular application before him was neither crucial nor vital to the determination by Commissioner Watts of the merits of the particular application which he was called upon to determine.

20 Finally, if the appeal were successful, it was submitted that no proper basis had been demonstrated which would justify the matter being remitted to a Commissioner other than Commissioner Watts.

The decision of the primary judge

21 His Honour first considered the extent of the requirement of a Commissioner to give reasons. Having noted that this Court in Botany Bay City Council v Farnworth Holdings Pty Limited [2004] NSWCA 157 had expressly disagreed with the contention that Commissioners of the Land and Environment Court had a less onerous duty to give reasons than judges of that Court, the primary judge observed (at [8]) that, although the duty to give reasons did not extend to every matter of fact or law which was or might have been raised in the proceedings, nevertheless

"the duty to give reasons clearly applies to findings on the principal contested issues, or any issue that is central or critical to the case."

22 Having cited a number of authorities in support of that proposition to which I will return, his Honour concluded (at [8]) that

"Commissioner Watts, therefore, was obliged to give reasons concerning the principle of consistency in decision-making, if this was either a central or a principal contested issue in the proceedings."

23 Turning to the question as to whether the so-called principle of consistency in administrative decision-making was a principal contested issue before Commissioner Watts, his Honour found (at [9]) that the transcript of the proceedings before the Commissioner on 23 February 2004 demonstrated that that principle was placed squarely before the Commissioner for consideration. As the applicability of that principle was

"thus a significant issue raised by the parties in the proceedings before Commissioner Watts … he was … bound to consider the applicability of the principle that there should be consistency between decision makers."

Soboleva v Minister for Immigration and Multicultural Affairs

24 The primary judge then referred (at [16]) to the fact that as a matter of judicial comity, a judge at first instance was usually required to follow the decision of another judge at first instance in the same jurisdiction unless convinced that the decision of the latter was wrong or that there was some distinguishing feature. Having cited authorities in support of that proposition (to which I shall also return), his Honour considered (at [16]) that

"[i]f a judge decides to not follow a decision of another judge then he or she must give reasons therefor."

25 The primary judge concluded this aspect of his judgment in the following terms (at [17]):

"This requirement also applies to commissioners of this Court. The Commissioner was thus obliged to give reasons as to why there should not be such consistency in the present case. It may have been that Commissioner Moore's decision was wrong, or that there were distinguishing features of the present case. The Commissioner, however, did not refer to any distinguishing facts or circumstances relating to the earlier decision: he did not refer to the issue at all, despite the fact that it was an important question raised by the parties. As a consequence the Commissioner failed to refer at all to a principal contested issue between the parties, or to provide any reasons or a finding on that contested issue."

26 His Honour then turned to the issue as to whether Commissioner Watts' failure to give reasons constituted an error of law. After referring to the judgment of Meagher JA in Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 at 444, he noted that

"a failure to give reasons in circumstances where there was a duty to do so (such as on a principal contested issue) is an error of law."

27 His Honour elaborated upon this proposition and its application to the present case in the following terms (at [19]):

Soulemezis

Beale

28 On the issue of remitter, his Honour said this (at [21]):

Steedman v Baulkham Hills Shire Council (No. 2)

Land and Environment Court Act

The submissions of the Segals on the appeal

29 The Segals submitted that the primary judge had erred in the following respects:

(a) His Honour's statement (in [8]) that the duty of Commissioner Watts to give reasons applied to findings on the principal contested issues or any issue that was central or critical to the case was too broadly stated in that that duty rose no higher than a duty to set out his findings and the reasons therefor based upon his subjective thought processes in making his determination. In this respect, reliance was placed upon the joint judgment of McHugh, Gummow and Hayne JJ, with whom Gleeson CJ agreed, in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 346 [68] and [69].

(b) The conclusion of his Honour (at [8]) that Commissioner Watts was obliged to give reasons concerning the principle of consistency in decision-making, assuming this was either a central or principal contested issue in the proceedings before him, was based on a wrong premise in that the Commissioner was only so obliged if that principle formed part of his subjective reasoning process. As it clearly did not, he was not required to take it into account unless it was a relevant consideration which he was required to take into account by statute.

(c) It was in this context that the Council submitted that as the Commissioner was bound by s 79C(1)(e) of the Environmental Planning and Assessment Act 1979 the EP&A Act) to take into consideration " the public interest " and as consistency in decision-making was in the public interest, it followed that the Commissioner was bound to take that principle into account and his failure to do so constituted an error of law.

(d) His Honour further erred in holding (at [12]) that Commissioner Watts was bound to consider the applicability of the principle that there should be consistency between decision-makers because, unless mandated by statute to do so, he was not so bound. Furthermore, consistency in decision-making or between decision-makers was only a principle of good administration as a public law value and although it might constitute a relevant consideration in the Peko-Wallsend sense ( Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 at 40), it applied only to administrative decision-makers such as a Minister or a Minister's delegate and not to a dispute-resolver such as the Commissioner in the context of adversary litigation in a court such as the Land and Environment Court.

Soboleva

Witharana v Minister for Immigration and Multicultural Affairs

"I do not think it was an error of law for the member hearing the present case to fail to refer to the other decision. … I think the member hearing the present case was entitled to take the view that the decision given by his colleague in the earlier case was irrelevant to the task he had to perform. The member had to make up his own mind on the basis of the material before him. It would have been quite improper for him to be influenced by the finding of a colleague in relation to a factual matter that depended upon different evidence. …

If the member hearing the present case thought the earlier decision was irrelevant, he was entitled to disregard it in his reasons for decision. I do not think that the failure to make any reference to an earlier decision constitutes an error of law …"

Soboleva

Yusuf

(f) Accordingly, the primary judge's observation (at [16]) that if a judge decides not to follow the decision of another judge of co-ordinate jurisdiction, then he or she must give reasons therefor, was incorrect and not supported by authority. Although, as his Honour observed, it is recognised that judges at first instance will, as a matter of judicial comity, follow the decision of another judge at first instance in the same jurisdiction unless convinced that that judgment was wrong or otherwise distinguishable and will ordinarily give reasons for doing so, nevertheless it is not an error of law for a judge who comes to a correct decision not to give reasons for not following the earlier decision of a judge who comes to a wrong decision and especially when only questions of fact are involved.

(g) The primary judge also erred when, in [17], he held that the " requirement " of judicial comity applied to Commissioners of the Land and Environment Court so that Commissioner Watts was therefore " obliged " to give reasons as to why he declined to follow the decision of Commissioner Moore so as to preserve consistency in decision-making.

(h) In any event, his Honour erred in finding that the principle of consistency in decision-making was a principal contested issue before Commissioner Watts which required him both to deal with the issue and to give reasons for departing from that principle in the circumstances of that case.

(i) Finally, it was submitted that his Honour erred in remitting the proceedings for re-hearing and, in any event, by failing to remit them to Commissioner Watts. To the extent to which he exercised any discretion, it miscarried as his Honour failed to provide a remedy that was proportionate to the error of law that he had found, namely, a failure to give reasons as to why he was not prepared to follow and apply the decision of Commissioner Moore. Accordingly, the matter should have been remitted to Commissioner Watts for the purpose only of him expressing and publishing those reasons.

The submissions of the Council on the appeal

30 The Council responded to the submissions of the Segals with the following contentions:

(a) There was no reason to distinguish between a judge of the Land and Environment Court exercising judicial power and a Commissioner exercising administrative power, at least in the context of adversarial litigation in Class 1 proceedings.

(b) The principle underpinning the duty to give reasons was that justice should not only be done but be seen to be done. As his Honour held, the principle of consistency in administrative decision-making was placed squarely before Commissioner Watts for consideration as a consequence whereof the Council and the community that supported its decision to refuse the Segals' application were entitled to know in the particular circumstances why the Commissioner ignored the decision of Commissioner Moore when the applications were factually and temporally proximate.

(c) Commissioner Watts was bound to take into consideration the public interest which included the public interest in consistent decision-making and, as a consequence, the avoidance of inconsistent outcomes, at least without rational justification. The present was a case where the same retaining wall was involved and the same planning principles were applicable thereto.

(d) It was a principal contested issue that, as found by Commissioner Moore, the retention and maintenance of the integrity of the retaining wall was an " insurmountable public interest " as a consequence whereof Commissioner Watts erred in law by failing to address that issue and to give reasons with respect to his resolution thereof.

(e) The central focus of the submissions before Commissioner Watts was upon Commissioner Moore's finding that the proposed opening in the retaining wall would impact on the integrity of what was otherwise an intact section of Gardyne Street and was therefore unacceptable, rather than upon the general heritage considerations advanced by the expert witnesses. Accordingly, Commissioner Watts was obliged to explain why he came to a decision different to that of Commissioner Moore.

(f) The decision of the High Court in Yusuf related to a different legislative scheme to that which applied in the Land and Environment Court. Furthermore, the common law principles relating to the duty to give reasons went further than s 430 of the Migration Act 1958 (Cth), which was the focus of the decision in Yusuf , in that Commissioner Watts was required to engage with the primary contested issue as to whether he should follow the decision of Commissioner Moore and to provide rational reasons if he proposed not to do so.

The duty to make findings

31 It is convenient at the outset, because the Segals relied heavily upon it, to consider in this context the decision of the High Court in Yusuf. The case concerned the obligation of the Refugee Review Tribunal (the RRT or Tribunal) to comply with s 430(1) of the Migration Act which required it to prepare a written statement that

32 The issue which arose was whether s 430(1)(c) required the Tribunal to do more than set out the findings of fact which it actually made. The question posed in the joint judgment of McHugh, Gummow and Hayne JJ was: did the section oblige the Tribunal to make findings on any and every matter of fact objectively material to the decision which it was required to make?

33 Their Honours answered this question in the following terms (at 346 [68]-[69]):

set out

did

make,

it

make

it

Comcare Australia v Matheson

34 It was in reliance upon these paragraphs of the joint judgment in Yusuf that the Segals submitted that Commissioner Watts was only bound to set out those findings and reasons which related solely to his subjective thought processes in coming to the conclusion that the subject application would not have an unacceptable impact on the heritage significance of the retaining wall. That was sufficient, so it was submitted, to enable the Council to ascertain whether there was any legal error in the Commissioner's reasoning process.

35 However, a broader argument than that based solely upon s 430 was advanced in Yusuf (at 347 [70]) which contended that the Tribunal's duty to make findings of fact arose not just from s 430 but from a consideration of the structure of the Migration Act taken as a whole including the role of the Tribunal in the task it performed in reviewing decisions of the Minister. The joint judgment responded to this submission by suggesting (at 347 [73]) that the asserted duty to make findings may be simply another way of expressing the well-known duty to take account of all relevant considerations. Their Honours continued (at 347-348 [73]):

"The considerations that are, or are not, relevant to the Tribunal's task are to be identified primarily, perhaps even entirely, by reference to the Act rather than the particular facts of the case that the Tribunal is called on to consider."

36 However, at 348 [74] their Honours observed:

"This does not deny that considerations advanced by the parties can have some importance in deciding what is or is not a relevant consideration. It may be, for example, that a particular statute makes the matters which are advanced in the course of the process of decision-making relevant considerations for the decision-maker. What is important, however, is that the grounds of judicial review that fasten upon the use made of relevant and irrelevant considerations are concerned essentially with whether the decision-maker has properly applied the law. They are not grounds that are centrally concerned with the process of making the particular findings of fact upon which the decision maker acts."

37 Accordingly, it was submitted by the Segals that on the basis of the foregoing remarks in the joint judgment in Yusuf, Commissioner Watt's duty to give reasons did not go beyond his subjective thought processes. Accordingly, simply because an issue was raised by a party did not require that that issue be taken into account unless failure to do so would constitute a failure to take into consideration a relevant consideration required or mandated to be taken into account by the governing statute.

38 However, some care needs to be taken in applying the observations of the High Court in Yusuf to which I have referred to the content of the duty to give reasons of a Commissioner or, for that matter, a judge of the Land and Environment Court. Thus in Minister for Immigration and Multicultural Affairs v Wang (2003) 215 CLR 518, McHugh J (at 530-531 [36]) observed that the Tribunal was not a court and did not exercise judicial power. His Honour continued:

"Care must be taken not to confuse the role of the Tribunal with that of the court which must necessarily find or rely on facts that are relevant to define issues between the parties, issues that concern facts that have occurred in the past."

39 Citing Yusuf, his Honour then remarked (at 531 [37]) that proceedings before the Tribunal were not adversarial in nature. There was no contradictor and no issues between parties. Whatever findings the Tribunal made were no more than those that the Tribunal considered necessary to explain its decision.

40 In their joint judgment in Wang, Gummow and Hayne JJ were of a similar view. They said (at 540-541 [71]):

"In adversarial litigation, findings of fact that are made will reflect the joinder of issue between the parties. The issues of fact and law joined between the parties will be defined by interlocutory processes or by the course of the hearing. They are, therefore, issues which the parties have identified. A review by the Tribunal is a very different kind of process. It is not adversarial; there are no opposing parties; there are no issues joined. … The findings of fact that the Tribunal makes are those that it, rather than the claimant, let alone adversarial parties, considers to be necessary for it to make its decision. Those findings, therefore, cannot be treated as a determination of some question identified in any way that is distinct from the particular process of reasoning which the Tribunal adopts in reaching its decision."

41 Their Honours then observed (at 541 [72]) that the Tribunal's written statement of its reasons must be understood in that way. And that so much followed from the decision in Yusuf

did

42 In the Land and Environment Court the litigation is adversarial in nature. The parties are opposed to each other and issues are joined between them. The position of the Tribunal under the Migration Act is essentially different.

43 Accordingly, in my opinion, it does not necessarily follow that a Commissioner or judge of the Land and Environment Court is required to give reasons only with respect to his or her subjective thought processes in coming to their particular decision. Notwithstanding those thought processes, their duty to give reasons would be contravened if they failed to address an issue joined between the parties which, if decided in a particular way, would result in a different decision to that to which the Commissioner or judge has arrived. Thus, if issues A, B and C be joined between the parties and the Commissioner or judge only addresses issues A and B, he or she will have erred in law by failing to address issue C if the resolution of that issue in favour of one or other of the parties would have resulted in a different outcome to that arrived at upon a determination of issues A and B. On the other hand, if issue C would have had no bearing upon the outcome arrived at in accordance with the determination of issues A and B, then it need not be addressed.

44 It is in the foregoing respect that, in my opinion, Commissioner Watts was bound to address the principal contested issues that were joined between the parties. The real question, which in my opinion is determinative of this appeal, is whether the primary judge was correct in finding that one such issue was the principle of consistency in administrative decision-making. I shall return to this point later in these reasons (see [88] below).

45 Reference was made to TelePacific Pty Limited v Federal Commissioner of Taxation [2005] ATC 4107 which concerned an alleged error of law on the part of the Administrative Appeals Tribunal in failing to make sufficient or proper findings on material questions of fact and to refer to the evidence or other material on which those findings were based in contravention of the requirements of s 43(2B) of the Administrative Appeals Tribunal Act 1975 (Cth). That provision was in almost identical terms to s 430 of the Migration Act with which the High Court dealt in Yusuf. Sackville J (at 4115 [51]) observed that the taxpayer's submissions invited the Court to hold that the Tribunal breached s 43(2B) by failing to make findings on material issues, whether or not those issues were critical to the Tribunal's reasoning. His Honour considered that that submission was contrary to the decision of the High Court in Yusuf.

46 The taxpayer further submitted that the Tribunal had failed to record the findings of fact it had actually made. Whether such a breach of itself was enough to constitute a material error of law did not appear to his Honour to have been authoritatively decided. However, he considered (at [54]) that the better view was that if the Tribunal

and this failure makes it impossible to ascertain [the Tribunal's] reasoning processes

Yusuf

47 On the basis of these decisions, it was submitted by the Segals that even if it be the case that Commissioner Watts had failed to record any findings with respect to the decision of Commissioner Moore and/or with respect to the issue of consistency in decision-making, nonetheless it could not be said that it was impossible to ascertain Commissioner Watts' reasoning processes given the extensive consideration that he gave to the expert evidence with respect to the heritage issue which was the principal issue joined between the parties. I agree with this submission. However, it is necessary to also determine whether the so-called principle of consistency in decision-making was a principal or central issue in the proceedings before the learned Commissioner. To that question I now turn.

The relevance of the so-called principle of consistency in decision-making

48 It can be accepted for present purposes that the Council argued before Commissioner Watts that the principle of consistency in decision-making required him to follow and apply the decision of Commissioner Moore to refuse to sanction a breach of the retaining wall. However, a question arises as to the nature of that so-called principle and its relevance to adversarial litigation in Class 1 appeals in the Land and Environment Court. It is, in my opinion, a different concept to the practice that, as a matter of judicial comity, judges at first instance should usually follow the decision of another judge at first instance of co-ordinate jurisdiction unless convinced that that decision was wrong.

49 There is no doubt that in the area of administrative law and, in particular, the jurisprudence relating to the duty of an administrative decision-maker to give reasons for his or her decision, the beneficial effects of that duty include the encouragement of good administration generally as well as a careful examination of the relevant issues, the elimination of extraneous considerations and, relevantly for present purposes, consistency in decision-making: de Smith, Woolf and Jowell, Judicial Review of Administrative Action, 5th ed (1995), 459 [9-042]. The learned authors also observed:

"Moreover, if published, reasons can provide guidance to others on the body's likely future decisions, and so deter applications which would be unsuccessful."

50 The rationale for the giving of reasons by administrative decision-makers was recently expressed in the following terms by Kirby J (who dissented in the result) in Re Minister for Immigration and Multicultural Affairs; Ex Parte Palme (2003) 216 CLR 212 where his Honour, drawing upon de Smith, Woolfe and Jowell, said (at 242 [105]) (omitting citations):

Rationale for reasons

51 It is, however, important to bear in mind that this concept of encouraging consistency in decision-making is, firstly, but one of the reasons why administrative decision-makers should be required to give reasons and, secondly, is properly related to the context of administrators called upon to make what are truly administrative decisions as distinct from a judge or other judicial or quasi-judicial officer (such as a Commissioner of the Land and Environment Court) who is called upon to decide issues raised by the parties in adversarial litigation. As already noted in [40] above, the distinction between the two was emphasised by Gummow and Hayne JJ in Wang.

52 Re Drake and the Minister for Immigration and Ethnic Affairs (No 2) [1979] 2 ALD 634, affirmed by the Full Federal Court (1979) 24 ALR 577, and cited by the primary judge at [14], involved a decision of the Administrative Appeals Tribunal (AAT) concerning the review of the Minister's decision under the Migration Act to deport the applicant. That review did not involve proceedings of an adversarial nature. The passage from the judgment of Brennan J, the President of the AAT, cited by the primary judge was in the context of the AAT applying ministerial policy as such a policy was said by the President to be "one of the most useful aids in achieving consistency" with other decisions in comparable cases. To the same effect, Deane J in Nevistic v Minister for Immigration and Ethnic Affairs (1981) 34 ALR 639 at 646-647, in referring to the desirability of consistency in decision-making, was at pains to emphasise that, although the AAT was entitled to pay regard to its previous decisions, it was not bound to do so as each applicant was entitled to have his or her application for review decided on its own particular merits.

53 In Ibrahim v Minister for Immigration and Multicultural Affairs (2000) 63 ALD 37, the Tribunal refused to grant the appellant a protection visa. It did so on the basis that it did not regard the appellant as a witness of truth, his evidence being inconsistent with that of his sister. The latter had been granted a protection visa by a differently constituted Tribunal some 10 months previously. The Tribunal did not refer to that decision in its reasons refusing a visa to the appellant. The latter appealed to the Full Federal Court and raised as a ground of appeal the failure of the Tribunal to adopt an approach consistent with the facts found by that Tribunal which had heard his sister's application.

54 The Full Federal Court (Burchett, Goldberg and Finkelstein JJ) rejected the submission that the Tribunal was obliged to adopt an approach to fact finding on the objective aspects of the circumstances of the appellant's case consistent with the fact finding of the Tribunal which determined his sister's application. Their Honours said (at 41 [15]):

"Although consistency may be an important element of good administrative decision-making, each case must be considered in the context of its individual circumstances."

55 It is true that in Ibrahim, it was not contended that the Tribunal erred in law in failing to refer in its reasons to the decision of the Tribunal on the sister's application or to explain why it would not follow that decision. This is not surprising given that the Court found that there was no merit in the appellant's submission that the Tribunal was obliged to adopt the approach of the Tribunal in his sister's case. In my opinion, if it was not an error of law by the Tribunal to fail to follow its previous decision with respect to the sister's application, then notwithstanding that it may have been desirable for the Tribunal to have referred to that decision and, if considered appropriate, to have distinguished it on its facts or otherwise opined that it was wrong, it cannot have been an error of law for the Tribunal to have failed to have referred to it its reasons which are otherwise unexceptionable.

56 It follows from the above discussion that Commissioner Watts was neither obliged to accept the Council's submission that consistency in administrative decision-making required him to follow the decision of Commissioner Moore, nor was he obliged to refer to that decision in order to then distinguish it on its facts or to otherwise opine that it was wrong. This is not to say that it was not desirable for Commissioner Watts to have referred to that decision given the somewhat unique circumstances under which the two decisions were made: on the contrary, his doing so may well have avoided the present appeal. Nevertheless, it cannot be said that he committed an error of law in failing to refer to it.

The relevance of the practice as a matter of judicial comity of a judge at first instance following an earlier decision of a judge of co-ordinate jurisdiction

57 The primary judge stated the relevant principle in [16] of his judgment. The most cited statement of the principle is that of Holland J in Michael Realty Pty Limited v Carr [1975] 2 NSWLR 812 where at 820 his Honour said (omitting citations):

"I do not think that I am relieved by the decision of Needham J of my duty to bring my own judgment to bear on the point in question. There is no rule of law which binds a judge to abide by the decision of another judge of co-ordinate jurisdiction, but a judge of first instance will, as a matter of judicial comity, usually follow the decision of another judge of first instance in the same jurisdiction, unless convinced that the judgment was wrong."

58 However, we are concerned here with a practice not a principle of law or, for that matter, a principle of planning. This notwithstanding, the primary judge held (at [16]) that if a judge decides not to follow the practice then he or she must refer to the decision of the other judge and give reasons for declining to follow it. His Honour therefore held (at [17]) that Commissioner Watts was bound to refer to Commissioner Moore's decision and to give reasons as to why, in order to achieve consistency between his decision and that of Commissioner Moore, he was not prepared to adopt it.

59 It is to be observed that the primary judge only cited passages from the decision of Moore J in Soboleva and Brennan J in Re Drake in support of those conclusions (see [12], [13] and [14]). No other cases were cited by the parties on the appeal which affirmed what Moore J had said. My own research has also failed to unearth any such authority. Although the practice is regarded as desirable, there is no suggestion in the cases that refer to it that if the practice is not followed the judicial officer is duty bound to state his or her reasons for ignoring the earlier decision which, so it is said, should be followed for the sake of consistency or judicial comity.

60 No doubt if such a decision is referred to but not followed by a judge in his or her reasons, then any error it discloses or inapplicability to the particular facts will be explained. But, apart from Soboleva, no authority suggests that if the decision is simply ignored, although pressed upon the Court by one of the parties, it is an error of law not to refer to it in the Court's reasons for decision assuming always that those reasons otherwise deal adequately with the principal contested issues between the parties. It is for that reason that the identification of those issues in the present case is of crucial importance as I have noted in [44] above.

61 In fact there is authority to the contrary of the dicta of Moore J in Soboleva relied on by the primary judge, which was not referred to by him. Interestingly, Hely J in Eloujenko v Minister for Immigration and Multicultural Affairs [2001] FCA 980 (27 July 2001) referred to Soboleva for a rather different proposition. At [23], his Honour stated:

Vassilieva v Minister for Immigration and Multicultural Affairs

Soboleva v Minister for Immigration and Multicultural Affairs

Eloujenko v Minister for Immigration and Multicultural Affairs

62 Further, in NABW v Minister for Immigration and Multicultural Affairs [2002] FCA 464, Sackville J of the Federal Court (at [13]) said (omitting unnecessary citations):

Soboleva v Minister for Immigration and Multicultural Affairs

63 Sackville J then referred to the passage in the judgment of Moore J in Soboleva cited by the primary judge in [13] of his judgment and observed (at [15]) that that passage referred to authorities interpreting s 430 of the Migration Act which had been overruled by the High Court in Yusuf. As appears from the passage from the judgment of Moore J cited by the primary judge in [12] of his judgment, the former relied upon the decision of the Full Court of the Federal Court in Minister for Immigration and Multicultural Affairs v Singh (2000) 98 FCR 469 which was disapproved of by the High Court in Yusuf.

64 In the present case it is apparent that Commissioner Watts considered that he could determine the Segals' application on its merits without reference to and possibly consideration of the decision of Commissioner Moore. In my opinion, no authority supports the proposition that his failure to refer to that decision constituted an error of law.

The general duty to give reasons

65 It is appropriate to now consider the better-known authorities in this Court dealing with the general law duty of a judge or other judicial officer to give reasons. The commencing point is the decision in Housing Commission of New South Wales v Tatmar Pastoral Co Pty Limited [1983] 3 NSWLR 378. The principle for which this decision is usually cited is to be found in the following passage in the judgment of Mahoney JA (at 385):

"There is, in my opinion, an established course of decision in this State that, in certain circumstances, it is the duty of the judge to state his reasons for deciding as he does and that his failure to do so may constitute an error of law …

However, such a duty does not exist in respect of every matter, of fact or of law, which was or might have been raised in the proceeding. It is not the duty of the judge to decide every matter which is raised in argument. He may decide a case in a way which does not require the determination of a particular submission … A judge will, of course, appreciate the possibility of points being taken or decided on appeal which were not taken or decided below and for this reason he may decide, and give reasons for his decision on, matters which in strictness he need not decide.

However, the decision of a particular submission may be an essential part of the judge's reasoning to his final conclusion. This may be so because it is necessarily so, ie, because he cannot come to his final conclusion without deciding it; or because the reasoning which in fact he follows makes it so. In such a case, the duty of the judge will vary according to the way in which the case has been conducted and according to the reasoning which he has followed."

Yusuf

66 The remarks of Mahoney JA in Tatmar were applied by this Court in Soulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247. Kirby P dissented as he considered that there was an absence of proper reasons by the Workers Compensation Court which constituted an error of law. In so deciding, his Honour said (at 259):

list the findings on the principal contested issues

67 McHugh JA observed (at 278) that the duty to give reasons rested not on whether there was a right of appeal against the judge's decision but upon the wider basis that justice must not only be done but must be seen to be done. His Honour then identified (at 279) three purposes as being served by the giving of reasons for a judicial decision. Relevantly, the first was that (at 279):

"it enables the parties to see the extent to which their arguments have been understood and accepted as well as the basis of the judge's decision."

68 At 280 his Honour noted that the obligation to give reasons for a decision did not require them to be lengthy or elaborate provided the essential ground or grounds upon which the decision rested were articulated. Furthermore, his Honour noted (at 281) that if no right of appeal is given against findings of fact,

"a failure to state the basis of even a crucial finding of fact, if it involves no legal standard, will only constitute an error of law if the failure can be characterised as a breach of the principle that justice must be seen to be done."

69 In Mifsud v Campbell (1991) 21 NSWLR 725, Samuels JA, after noting that the extent of the duty depended upon the circumstances of the individual case, observed (at 728) that

"a failure to refer to some of the evidence does not necessarily, whenever it occurs, indicate that the judge has failed to discharge the duty which rests upon him or her. However, for a judge to ignore evidence critical to an issue in the case and contrary to an assertion of fact made by one party and accepted by the judge … may promote a sense of grievance in the adversary and create a litigant who is not only 'disappointed' but 'disturbed' … It tends to deny both the fact and the appearance of justice having been done."

70 Samuels JA considered that any failure to discharge the duty to give reasons in the sense referred to constituted an error of law. Clarke JA, although otherwise agreeing with Samuels JA, had reservations as to whether in the particular case the Court was faced with an issue of law. His Honour (at 729) regarded any deficiencies in the judgment as

"indicative of an unsatisfactory or incomplete reasoning process which has led to a judgment based on grounds which are unsupportable."

71 Comcare v Forbutt [2000] FCA 837 was a decision of Heerey J of the Federal Court. The case involved an appeal from the Administrative Appeals Tribunal – it being contended that that Tribunal erred in law by failing to refer to a number of submissions made by the applicant. His Honour responded to that contention as follows (at [58]):

Dornan v Riordan

Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd

Soulemezis v Dudley (Holdings) Pty Ltd

Soulemezis

Public Service Board of New South Wales v Osmond

72 Heerey J further elaborated in the following remarks (at [61]):

"It might be added that there are logical constraints on the extent to which failure of the Tribunal to deal with arguments can avail an appellant. If the argument went to matters of fact then, as already mentioned, the Tribunal need do no more than state its findings of material fact and refer to the evidence or material on which those findings were based. If there is no defect in failing to refer to contrary evidence, it is hard to see how there can be error in failing to discuss contrary argument."

73 The Council placed particular reliance upon the decision of this Court in North Sydney Council v Ligon 302 Pty Limited (1995) 87 LGERA 435. That case involved a Class 1 appeal to the Land and Environment Court which was heard by Bannon J. One of the matters raised in the appeal was that his Honour had erred in failing to take into consideration the provisions of a development control plan applying to the land to which the development application related. In this respect, the then s 90(1)(a)(iv) of the EP&A Act required the Council, and the Court on appeal, to take into consideration any development control plan in force under s 72 of that Act that related to the land to which the development application related. Nowhere in Bannon J's reasons was there a reference to the relevant development control plan. Accordingly, it was submitted that he had failed to "take into consideration" that plan in contravention of s 90(1)(a) of the EP&A Act.

74 Kirby A-CJ, with whom on this issue Sheller and Clarke JJA agreed, held that Bannon J had failed to "take into consideration" the applicable development control plan and, accordingly, an error of law had been demonstrated. His Honour (at 442) observed that the only way the Court of Appeal and the parties could discern whether a consideration crucial to the case was taken into account was by looking to the reasons of the judge from whom the appeal was brought. Bannon J's consideration of the development control plan was "crucial to the case". This was clearly so as it was specifically required to be taken into consideration by the legislation. For reasons upon which I will elaborate, I do not consider that the same consideration applied to the decision of Commissioner Moore.

75 The Acting Chief Justice also considered that although Bannon J was in effect making an administrative decision, as it was a decision made by a judge, the community expected him to give reasons which sufficiently demonstrated the lawfulness of what he was doing. His Honour continued in these terms (at 442):

"Whilst it is true that the duty of the judge will vary according to the way a case has been conducted and the reasoning followed, where a point is vital and where its resolution is crucial to the contest between the parties, it would ordinarily be expected that the judge will expose his or her reasons for the decision on the issue … To this extent, the fact that the consideration of the development control plan was so crucial to the conduct of the case and to the contest between the parties, far from relieving Bannon J of the duty to indicate his consideration of it, imposed upon his Honour the obligation at least to refer to it and to indicate his reasons, notwithstanding its application, for coming to the view that consent should be granted."

76 The Council in the present case relied heavily upon the foregoing passage. It submitted that the question whether Commissioner Watts' decision should be consistent with that of Commissioner Moore in the particular circumstances was vital to the way the case had been conducted and its resolution was "crucial to the contest between the parties". Accordingly, it followed that Commissioner Watts was bound, not only to indicate that he had considered the issue, but also to indicate his reasons (notwithstanding the decision of Commissioner Moore) in coming to a view that was antipathetic to the principle of consistency in decision-making.

77 Finally, the Council relied upon the decision of the English Court of Appeal in Flannery v Halifax Estate Agencies Limited [2000] 1 WLR 377 where Henry LJ, delivering the judgment of the Court, relevantly made the following comments (at 381-382) with respect to the general duty of a judge to give reasons:

"(1) The duty is a function of due process, and therefore of justice. Its rationale has two principal aspects. The first is that fairness surely requires that the parties especially the losing party should be left in no doubt why they have won or lost.

…

But where the dispute involves something in the nature of an intellectual exchange, with reasons and analysis advanced on either side, the judge must enter into the issues canvassed before him and explain why he prefers one case over the other

What were the principal, central or critical issues contested before Commissioner Watts?

78 Before dealing further with this aspect of the matter, two observations need to be made. The first is that it was suggested during the course of argument that the failure of Commissioner Watts to respond in his reasons to the reliance by the Council upon the decision of Commissioner Moore in advancing the principle of consistent decision-making constituted a failure to accord the Council natural justice: cf Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088 at 1092 [24]. It is sufficient to say that firstly, no such argument was put to the primary judge and, secondly, the issue was not further pursued in this Court.

79 The second observation relates to a submission by the Council to the effect that Commissioner Watts erred in failing to address the principle of consistency in decision-making which required him, in the public interest, to follow the decision of Commissioner Moore unless there was some rational justification for doing otherwise. There was a public interest, so it was submitted, in Commissioner Watts giving, in effect, determinative weight to the decision of Commissioner Moore which was extremely recent, related to the same retaining wall, involved the next door property and raised the identical planning issue, namely, whether the breaching or opening of the wall for the purpose of providing entry to the proposed garage would have an unacceptable impact upon the heritage significance of the wall.

80 The Council accepted that this was not an argument which was addressed to the primary judge. Furthermore, it conceded that without a Notice of Contention, it was not open to it to seek to uphold his Honour's decision on that public interest ground. As no Notice of Contention was filed and leave was not sought to file one out of time, it is not appropriate that the public interest argument advocated by the Council should be further considered.

81 Nevertheless the Council sought to extract itself from this dilemma by submitting that the public interest was a principal contested issue in the proceedings insofar as it related to the principle of consistency in decision-making. The question, therefore, is whether this was so. The Court was referred to the transcript of the argument before Commissioner Watts on 23 February 2004. Before considering the relevant parts of the transcript to which we were referred, Commissioner Watts in his judgment of 27 February 2004 referred (at [56]) to the statement of issues filed by the Council on 26 June 2003, the first of which was as follows:

"The proposal will adversely affect the significance of the heritage listed sandstone retaining wall identified within Waverley Local Environmental Plan 1996 Schedule 5 as an item of landscape significance. The wall constructed in the 1920s remains in its consistent and uninterrupted form to the eastern end of Gardyne Street."

82 In [61] of his judgment the Commissioner noted that the parties "largely agreed" that there were no other planning issues other than the heritage impacts which would cause the proposal to be refused consent. Accordingly, the Commissioner devoted himself to that issue commencing at [62] of his judgment and concluding at [76]. There cannot be any doubt that a principal contested issue, if not the principal contested issue, was whether the impact of the proposal upon the heritage significance of the retaining wall was acceptable. On this issue, the parties called extensive expert evidence and there is no doubt that the Commissioner dealt with that evidence, including evidence from objectors, in some detail and made clear the basis of his ultimate finding that any likely effect on the heritage significance of the retaining wall would be "slight".

83 The basis upon which then counsel for the Council relied on Commissioner Moore's decision was encapsulated in the following passage in the transcript (T 78):

"NEWPORT: The Commissioner also with the same wall next door, the same instrument with the same conditions arrived at a conclusion that there ought to be no break of that wall. Why? Because of the importance of that, given its heritage significance and I submit to you that it would render the decision making of this Court, particularly given the newness of this decision, it would render it one that would – it would render it so that it would induce lack of public confidence in the decision making.

I have never seen a case that I could put to you so squarely along those lines because constantly cases come forward which are different that you are able to distinguish them and say, well, they turn solely on their facts but the facts here relevant are identical. The only possible avenue of difference could be the ownership which I say to you is not a relevant public interest and one that you are not empowered to consider under section 79C."

84 Prior to Mr Newport making the above submission, Mr Hemmings, junior counsel for the Segals, had referred to Commissioner Moore's decision and had submitted that there were a number of differences between the application in that case and the application before Commissioner Watts. A deal of time was taken up by both counsel in referring to that part of Commissioner Moore's decision that related to the identification of the particular retaining wall which was said to be the subject of Schedule 2 to the LEP. Certainly, Mr Newport for the Council made a submission to the Commissioner (T 20) in terms of that extracted by the primary judge in [9] of his judgment.

85 It would appear that immediately after that submission the Commissioner asked whether he had copies of the plans before Commissioner Moore and was told that they were Exhibit 17. However, it became apparent that those plans did not represent the final plans upon which Commissioner Moore made his decision. Neither party tendered the final plans as a consequence whereof it was difficult, if not impossible, for Commissioner Watts to determine the differences or similarities between the proposal ultimately before, and refused by, Commissioner Moore, and the amended proposal which Commissioner Watts approved. Without being able to compare the final drawings in the one application to those in the other, the issue of the similarity or otherwise between the two applications could not be resolved. On that basis alone, it was open to Commissioner Watts to regard the decision of Commissioner Moore as irrelevant.

86 I observe that after the submission was made by Mr Newport which his Honour extracted at [9] of his judgment, Mr Stapleton (the Council's heritage expert) gave further evidence and was cross-examined. It was not suggested by either party that Mr Stapleton gave evidence to establish that the final plans before Commissioner Moore proposed an opening or aperture in the retaining wall that was no different in terms of size, extent, nature or treatment to that proposed in the amended plans before Commissioner Watts.

87 At the end of his submissions-in-chief, Mr Newport said this (T 83):

"Commissioner, the central focus is the heritage and to that, we say by adhering to the same decision of Commissioner Moore, that is, it is unacceptable to cut through this wall next door, that you would follow that decision."

88 In reply Mr Hemmings for the Segals submitted that it was a question of whether as a matter of judicial comity Commissioner Watts would or would not follow the decision of Commissioner Moore. In this respect, Mr Hemmings spent a deal of time pointing out what he submitted were differences between the Darlings' proposal and that of the Segals. Accordingly Mr Hemmings submitted that the decision of Commissioner Moore was distinguishable on its facts as a consequence whereof Commissioner Watts would not be concerned to follow it.

89 Mr Newport replied to the effect that Exhibit 17, the plans of the Darlings' proposal, were not the final plans and were therefore unreliable. Mr Newport's final submission was that it was only Mr Stapleton who made a critical assessment of the impact of the proposal on the heritage significance of the retaining wall as required by the New South Wales Heritage Council and that Mr Brooks, the heritage consultant retained by the Segals, had not made any such assessment. Implicitly Mr Newport was submitting that that was determinative of the matter and, therefore, the Commissioner should accept Mr Stapleton's conclusions.

90 Although it is clear that Mr Newport on behalf of the Council submitted to Commissioner Watts that he should follow the decision of Commissioner Moore as to do otherwise

"would induce lack of public confidence in the decision making",

principal

slight

91 The Council nevertheless relied upon Commissioner Moore's decision that the retaining wall should remain intact as factual support for Mr Stapleton's opinion that the Segals' application, notwithstanding the amendments suggested by Mr Stapleton himself, should still be refused.

92 Although to follow or not follow Commissioner Moore's decision was an issue in the sense that it was an argument that was advanced by the Council before Commissioner Watts, it was not, in my opinion, a or the principal, central or critical issue the subject of the contest between the parties in the sense in which those terms are used in the authorities. This is particularly so where the principle of consistent decision-making is not, in itself, a matter which the Court was required to take into consideration pursuant to s 79C(1) of the EP&A Act. It is true that the Court was required to consider the "public interest" but the latter concerned the real principal contested issue of whether the heritage significance of the retaining wall would be unacceptably affected by the subject proposal.

93 In my opinion, it follows that the statements in the authorities to which I have referred above to the effect that the judge must enter into the issues canvassed before him or her and explain why he or she prefers one case over the other (Flannery), or that for a judge to ignore evidence critical to an issue in a case contrary to an assertion of fact made by one party may promote a sense of grievance in the adversary (Mifsud), or that it is the duty of a judge to expose his or her reasons for his or her decision where a point is vital and where its resolution is crucial to the contest between the parties (Ligon), need to be read in context and are not, in my opinion, authority for the proposition that every argument or issue advanced by a party in support of the principal issues must be considered by the judge and reasons given for accepting or rejecting it. A judge's duty to give reasons is, in my opinion, confined to the essential ground or grounds upon which the decision rests (Soulemezis) and does not include a requirement to deal with a submission or argument that is otherwise unnecessary to the decision arrived at provided that, in respect of that decision, the judge's reasoning process is articulated and relevant findings made (Tatmar).

94 In the present case, the issue which was "vital" or the resolution of which was "crucial" to the contest between the parties (Ligon) was the acceptability or otherwise of the impact of the particular proposal upon the heritage significance of the retaining wall. The present case is distinguishable from that dealt with in Ligon: the failure of the judge in that case to refer to the development control plan, the consideration of which was mandated by the legislation, is entirely different to the failure of Commissioner Watts in the present case to refer to the decision of Commissioner Moore made with respect to a different application.

95 Furthermore, I am in no way convinced that in the context of adversarial proceedings in the Land and Environment Court, there is any place for the so-called principle of consistency in administrative decision-making. As I have observed in [51] above, that concept is more appropriately applied to true administrative decision-making at the level of executive or local government. It has no application to adversarial proceedings where the merits of any particular application depend upon the facts and circumstances of the case and the substantive issues joined between the parties.

96 My only qualification to the foregoing, at least in the context of environmental planning, is that consistency in the application of planning principles is, clearly, a desirable objective. This has been recognised by the Commissioners of the Land and Environment Court (see [16] above) and is reflected in the planning principles articulated by Commissioner Watts in [81] of his judgment (see [15] above). In the present case, the planning principles in question were common to both appeals and were duly taken into consideration by each Commissioner. But it does not follow that a consistent application of those principles results in the same outcome. That would depend upon the particular facts of each case as well as upon the evidence called by the parties to support the outcome, based on those principles, for which each contends. This is particularly so when dealing with heritage issues such as the acceptability or otherwise of the impact of a particular proposal upon the heritage significance of a heritage item which clearly involves a value judgment of a particularly subjective kind. Commissioner Watts made that judgment in the present case and his reasons for coming to that conclusion were more than adequately expressed.

97 Finally, the only authority which the Court researcher was able to discover where a judicial observation had been made of the undesirability of two judges at first instance of the same court arriving at different results on substantially similar facts was that of Finkelstein J in Applicant WAIW of 2002 v Minister of Immigration and Multicultural and Indigenous Affairs [2002] FCA 1621 where at [13] his Honour said:

"It would be strange indeed if, on substantially similar facts, two judges of this Court arrived at different results. If nothing else, that would tend to suggest a breakdown in the rule of law in favour of idiosyncratic law making, a concept much discussed in recent times. Of course there will be some occasions when it is necessary for one judge to reach a conclusion which is different from another although the facts of both cases are similar. But that would be a rare case and this is not one of them."

98 It is apparent that Finkelstein J was not asserting that there was some general rule of law of the nature of that referred to in the above passage from his Honour's judgment. Rather, he was referring to the desirability of consistency in decision-making in the circumstances postulated. But it does not follow that, by failing to follow the decision of another judge of the same court in a matter involving substantially similar facts, the first judge will have committed an error of law unless he or she refers to the earlier decision and expresses his or her reasons for declining to follow it. Provided otherwise that the judge's reasoning process is articulated in his or her judgment by way of appropriate findings and references to the evidence supporting those findings, no error is revealed.

99 Accordingly, I would summarise my views on this aspect of the matter as follows:

(a) Although a Commissioner of the Land and Environment Court is obliged to consider the principal contested issues before him or her, each of those issues is the genus of which the various arguments in favour or against the resolution of the issue in a particular way are species.

(b) It is unnecessary for a Commissioner or a judge of the Court to consider each of the species provided he or she has considered the genus. It is that which must be addressed in the Commissioner's or judge's reasons. Those reasons must be adequate to explain, by way of findings and reference to the evidence supporting the findings, the reasoning process adopted by the Commissioner or judge and which has led to his or her conclusion.

(c) To the extent referred to, there is probably no inconsistency between the observations by the High Court in Yusuf to which I have referred on this issue and those of the judges of this Court in the authorities referred to above.

(d) In the present case, the only principal contested issue was whether the impact of the particular proposal upon the heritage significance of the retaining wall was acceptable: that issue was considered and determined by Commissioner Watts and his reasons for doing so were more than adequately expressed.

(e) Although raised before Commissioner Watts, the principle of consistency in administrative decision-making was not a principal contested issue in the sense in which that expression has been used in the authorities.

(f) Not only was Commissioner Watts not bound by the decision of Commissioner Moore, he was not required to take it into consideration if otherwise he considered it irrelevant (as he clearly did) to the resolution of the principal contested heritage issue which he was required to consider.

(g) Accordingly, the failure by Commissioner Watts to refer to the decision of Commissioner Moore or to explain why he was not prepared to follow it did not contravene his duty to give reasons and, therefore, did not constitute an error of law.

(h) The primary judge was in error in holding to the contrary as a consequence whereof the orders made by his Honour should be set aside and the appeal from Commissioner Watts to the primary judge pursuant to s 56A of the Court Act should be dismissed with costs.

The remitter issue

100 The issue raised by the primary judge's refusal to remit the matter to Commissioner Watts raises interesting and complex questions some, but not all, of which were the subject of this Court's decision in Baulkham Hills Shire Council v Basemount Pty Limited (2003) 126 LGERA 339. However, given that the outcome of my conclusions in this matter is that no remitter was justified, it follows that it is unnecessary to consider further the correctness of the terms of the primary judge's order in this regard.

Conclusion

101 For the foregoing reasons, in my opinion the following orders should be made:

(1) Appeal allowed.

(2) Set aside the orders made by Lloyd J on 20 July 2004.

(3) The appeal by the respondent pursuant to s 56A of the Land and Environment Court Act 1979 against the decision and orders of Commissioner Watts of 27 February 2004 be dismissed.

(4) The respondent pay the appellants' costs of the appeal before Lloyd J and before this Court but to have with respect to the latter a certificate under the Suitors' Fund Act, 1951 if otherwise entitled thereto.

102 BASTEN JA: I agree with the orders proposed by Tobias JA and his Honour's reasons.

**********

05/10/2005 - Minor correction to matter number on cover sheet - Paragraph(s) Cover sheet only

05/10/2005 - Incorrect matter number. - Paragraph(s) Coversheet

Citations

Segal v Waverley Council [2005] NSWCA 310

Most Recent Citation

Cases Citing This Decision

323

Ku-ring-gai Council v Bunnings Properties Pty Ltd [2019] NSWCA 28

Cases Cited

24

Statutory Material Cited

5

Applicant WAIW of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1621

Botany Bay City Council v Farnworth Holdings Pty Ltd [2004] NSWCA 157

Comcare v Forbutt [2000] FCA 837

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CITATION:	Segal & Anor v Waverley Council [2005] NSWCA 310 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	9 June 2005
JUDGMENT DATE:	15 September 2005
JUDGMENT OF:	Beazley JA at 1; Tobias JA at 2; Basten JA at 102
DECISION:	(1) Appeal allowed; (2) Set aside the orders made by Lloyd J on 20 July 2004; (3) The appeal by the respondent pursuant to s 56A of the Land and Environment Court Act 1979 against the decision and orders of Commissioner Watts of 27 February 2004 be dismissed; (4) The respondent pay the appellants' costs of the appeal before Lloyd J and before this Court but to have with respect to the latter a certificate under the Suitors' Fund Act, 1951 if otherwise entitled thereto.

CATCHWORDS:	ENVIRONMENT AND PLANNING - Decision of Commissioner of Land and Environment Court granting development consent - Earlier decision by different Commissioner refusing similar application in relation to neighbouring property - No reference to earlier decision - Whether Commissioner bound to follow earlier decision - APPEALS - Error of law - Duty to make findings - Judicial comity - Relevance of practice of judge at first instance following earlier decision of judge of co-ordinate jurisdiction - Duty to give reasons - Principal contested issues - Whether Commissioner's failure to refer to earlier decision constituted an error of law - ADMINISTRATIVE LAW - Relevance of principle of consistency in administrative decision-making
LEGISLATION CITED:	Administrative Appeals Tribunal Act 1975 (Cth) Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Migration Act 1958 (Cth) Waverly Local Environment Plan 1996
CASES CITED:	Applicant WAIW of 2002 v Minister of Immigration and Multicultural and Indigenous Affairs [2002] FCA 1621 Baulkham Hills Shire Council v Basemount Pty Limited (2003) 126 LGERA 339 Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 Botany Bay City Council v Farnworth Holdings Pty Limited [2004] NSWCA 157 Comcare Australia v Matheson (2004) 79 ALD 518 Comcare v Forbutt [2000] FCA 837 Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088 Flannery v Halifax Estate Agencies Limited [2000] 1 WLR 377 Housing Commission of New South Wales v Tatmar Pastoral Co Pty Limited [1983] 3 NSWLR 378 Ibrahim v Minister for Immigration and Multicultural Affairs (2000) 63 ALD 37 Michael Realty Pty Limited v Carr [1975] 2 NSWLR 812 Mifsud v Campbell (1991) 21 NSWLR 725 Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 Minister for Immigration and Multicultural Affairs v Singh (2000) 98 FCR 469 Minister for Immigration and Multicultural Affairs v Wang (2003) 215 CLR 518 Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 NABW v Minister for Immigration and Multicultural Affairs [2002] FCA 464 Nevistic v Minister for Immigration and Ethnic Affairs (1981) 34 ALR 639 North Sydney Council v Ligon 302 Pty Limited (1995) 87 LGERA 435 Soboleva v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 353 Soulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247 TelePacific Pty Limited v Federal Commissioner of Taxation [2005] ATC 4107 Witharana v Minister for Immigration and Multicultural Affairs (Unreported, Federal Court of Australia, Wilcox J, 21 December 1998)
PARTIES:	Julian Segal Lucille Melanie Segal Waverley Council
FILE NUMBER(S):	CA 040671/04
COUNSEL:	A: Stephen Gageler SC / Ian Hemmings R: John Griffiths SC / Jayne Jagot
SOLICITORS:	A: Morgan Lewis Alter, Sydney R: Staunton Beattie, Sydney

LOWER COURT JURISDICTION:	Land & Environment Court
LOWER COURT FILE NUMBER(S):	L&E 10547/03
LOWER COURT JUDICIAL OFFICER:	Lloyd J