Todbern Pty Limited v Hurstville City Council
[2001] NSWLEC 145
•07/06/2001
Land and Environment Court
of New South Wales
CITATION: Todbern Pty Limited v Hurstville City Council and Anor. [2001] NSWLEC 145 PARTIES: APPLICANT:
RESPONDENTS:
Todbern Pty Limited
Hurstville City Council and Anor.FILE NUMBER(S): 20071 of 1999 CORAM: Bignold J KEY ISSUES: Section 56A Appeal :- Meaning of provisions of BCA requirements for disabled access to building. Whether Court had jurisdiction to entertain in an appeal under s 176 an objection pursuant to s 82
LEGISLATION CITED: Land and Environment Court Act 1979, s 56A, s 39(2)
Local Government Act 1993, s 82, s 89, s 101, s 176CASES CITED: Leichhardt Municipal Council v Seatainer Terminals Pty Ltd (1981) 48 LGRA 409;
Cacalot Pty Ltd v Sydney City Council (1996) 90 LGERA 424DATES OF HEARING: 18/12/00, 09/03/01 DATE OF JUDGMENT:
07/06/2001LEGAL REPRESENTATIVES:
APPLICANT:
Mr P Clay, Barrister
SOLICITORS
VerekersFIRST RESPONDENT:
SECOND RESPONDENT:
Mr P Rigg, Solicitor
SOLICITORS
Deacons Graham and James
Mr A M Pickles, Barrister
SOLICITORS
Abbott Tout
JUDGMENT:
IN THE LAND AND
Matter No. 20071 of 1999
ENVIRONMENT COURT OF
Coram: Bignold J.
NEW SOUTH WALES
6 July 2001
TODBERN PTY LIMITED
Applicant
v
HURSTVILLE CITY COUNCIL
First Respondent
KOGARAH MUNICIPAL COUNCIL
Second Respondent
JUDGMENT
Bignold J:
A. INTRODUCTION
1. This is an appeal pursuant to the Land and Environment Court Act 1979, s 56A (LEC Act) against the judgment of Commissioner Hussey dismissing the Applicant’s appeal pursuant to the Local Government Act 1993, s 176 (the LG Act).
2. The latter appeal was an appeal against the decision of the Respondent Councils (who exercised a concurrent regulatory function under the LG Act) to impose the following condition on the grant of approval on 26 August 1999 to the Applicant’s application for alterations, refurbishment and additions to the existing shopping centre known as “Hurstville Super-Centre” erected over Hurstville Railway Station and the Illawarra railway line:
- 42 Council considers the Forest Road entrance as the principal public entrance and therefore access for disabled persons must be provided from Forest Road. Such access must comply with Clause D3.2 of the BCA.
3. The reference to the BCA is a reference to the Building Code of Australia 1996. Clause D3.2 of the BCA, which appears in Part D3 “Access For People With Disabilities” (being a subset of Section D “Access and Egress”) provides as follows:
- D3.2 General building access requirements
(a) Buildings must be accessible as required by Table D3.2.
(b) Parts of buildings required to be accessible must comply with this Part and AS 1428.1.
(c) External access to a building required to be accessible must be in accordance with this Part and AS 1428.1, and must be provided—
(i) from the allotment boundary at the main points of entry; and
(ii) from any accessible carparking space on the allotment in accordance with D3.5; and
(iii) from any adjacent and associated accessible building on the allotment; and
(iv) through the principal public entrance.
4. The only term employed in clause D3.2 that is defined in the BCA is the term “accessible” meaning
- Having features to permit use by people with disabilities : Part A1.1
B. THE COMMISSIONER’S JUDGMENT
5. In par 13, of his reasons for judgment delivered on 19 July 2000 Commissioner Hussey identifies as the “critical issue” in the case “whether it is reasonable to require provision of access for the disabled by way of a lift from the supercentre concourse to Forest Road as part of this building approval”.
6. The Commissioner then proceeded to consider the evidence and to make his findings by reference to the following three subjects:
(i.) main points of entry (pars 14 to 27)
(ii.) principal public entrance (pars 28 to 30)
(iii.) lift provision arrangements (par 13 to 33)
before expressing the following conclusions at pars 34 to 36:
Having considered the evidence and with the benefit of a view, I am satisfied that the redevelopment works involve significant upgrading of the Supercentre which will be in the public interest. As such it will provide attractive shopping opportunities for the public, but the existing plan restricts access for mobility impaired from Forest Road.
In my opinion, the provisions of the BCA applies and they include cl D3.2 which requires appropriate external access to the building at the main points of entry. The building containing the Supercentre does have main entry points from both Ormonde Parade and Forest Road. Furthermore I think there is a strong case that the Forest Road entry is the principal public entrance.
Therefore I consider that Condition 42 should be maintained to satisfy the requirements of the BCA. I do not consider the applicants proposal to set aside the area for the lift to enable its future construction as satisfactory in the redevelopment of the Supercentre. Although, the evidence indicated that there is a strong case for an equitable sharing of the costs for the lift based on the patronage to the respective facilities and services. However, any such arrangement is outside the parameters of this appeal. Accordingly Condition 42 is retained.
7. These conclusions reflect the Commissioner’s earlier stated findings on the three subjects he had identified (the first two of which adopt terms or phrases appearing in cl D3.2 of the BCA).
8. Thus, in respect of “main points of entry”, the Commissioner had found (par 14) that there were four entry points directly from Ormonde Parade (situate on the southern side of the railway line) and that the proposed development would result in “reasonable access being provided from the allotment boundaries at the main entry point from Ormonde Parade” (par 17).
9. However, he also found that “entry to the Super-Centre is available from Forest Road via existing stairs or escalator” (par 16) In this respect, he made the further finding:
- But the building is somewhat recessed from this frontage and there is no direct access to the Supercentre. Also the signage along this facade indicates the location of the Hurstville Station but not the Supercentre. ( par 16 )
10. After noting that the Super-Centre was contained within the leasehold boundaries “which did not extend to Forest Road” (par 19) the Commissioner made the following observation at par 20:
- Whilst I accept there could be different implications arising from the leasehold boundary, it nevertheless seems to me that the intent of Part D3 is to provide access to the building. Under these circumstances the building gains access via the existing stairs and escalator and it seems reasonable to me then that if disabled access is provided, it be on the basis of the buildings orientation and access to Forest Road and not the internal leasehold boundary.
11. After considering the relevant evidence, the Commissioner at par 23 and par 27 respectively concluded as follows:
Therefore, I consider compliance with the Part D3.2 provisions of the BCA for external entry to the building includes disabled access from its Forest Road, as it is a main entry point. ( par 23 )
In summary then, this building containing the Supercentre has two main entry points on either side of the railway line. The centre attracts a significant volume of pedestrians from Forest Road and I consider it reasonable that disabled access be provided in accordance with cl D3.2 (c)(i). (par 27)
12. Next, the Commissioner considered the subject of “principal public entrance”, noting that cl D3.2 (c) (iv) of the BCA required “provision of external access to building through the principal public entrance”. (par 28)
13. The Commissioner dealt with this subject in pars 29 and 30 as follows:
29. As I have previously stated, I am unwilling to completely rely on the pedestrian surveys due to their limited nature and failure to provide a destination split, particularly in respect of the railway station. However it still confirms the anecdotal evidence that Forest Road is the more likely principal public entrance. The view confirmed the much higher degree of commercial activity on the Forest Road side, indicating the likelihood of more pedestrians considering this the principal public entrance.
30. On this basis I consider that disabled access should be provided to Forest Road in order to satisfy cl D3.2(c)(iv).
14. Finally, in relation to “lift provision arrangements”, the Commissioner considered this subject at pars 31 to 33 of his judgment, but did not make particular findings (on account, it seems, of his ultimate conclusion that cost sharing for the provision of a lift facility between the developer and State Rail was “outside the parameters of this appeal”: par 36).
C. THE GROUNDS FOR THE S56A APPEAL
15. An appeal pursuant to the LEC Act, s 56A is limited to errors of law and for such an appeal to succeed, the error of law must be a vitiating error: see Leichhardt Municipal Council v Seatainer Terminals Pty Ltd (1981) 48 LGRA 409; Cacalot Pty Ltd v Sydney City Council (1996) 90 LGERA 424.
16. In its statement of grounds in support of the appeal against the Commissioner’s judgment, the Applicant nominated eight separate grounds of appeal. However, on the hearing of the appeal, only five of the grounds were relied upon. (I shall hereafter refer to these grounds as the “original appeal grounds.”). These grounds were stated more succinctly in the Applicant’s written outline of its argument as follows:
1. The Commissioner failed to correctly apply the BCA in that he failed to consider whether the performance requirements of the BCA had been met;
2. The Commissioner failed to consider at all the objection to the condition made by the Applicant pursuant to s.82(1)(b) of the LG Act;
3. The Commissioner erred in his interpretation of clause D 3.2(c)(i);
4. The Commissioner erred in his approach to the question of principal public entrance;
5. The Commissioner erred in determining that the equitable sharing of costs was not relevant to the determination of the appeal.
17. The hearing of the appeal commenced on 18 December 2000 but was not completed on that occasion because in the course of the Applicant’s argument, it became clear that its emerging argument concerning the proper interpretation of cl D3.2 (c)(i) and (c)(iv) far transcended the originally formulated argument that the Commissioner had misconstrued the provision.
18. The transcending argument was that properly construed, the provision simply was incapable in law of applying to the facts of the present case. (To distinguish this argument from that advanced in support of the original appeal grounds, I shall hereafter refer to this argument as the Applicant’s “additional appeal grounds”).
19. It was in these circumstances that the hearing was, by consent of all parties, adjourned, and directions were given to the Applicant to file and serve a written outline of its supplementary submissions in support of its additional appeal grounds and to the Respondents to file and serve their written responses thereto.
20. Upon the resumed hearing, the parties have argued these additional appeal grounds with neither Respondent raising objection to the Court entertaining the Applicant’s additional appeal grounds.
21. It is now necessary to elaborate upon the transcending nature of the Applicant’s additional appeal grounds, particularly in the light of the first Respondent’s argument (which had also been advanced at first instance but does not appear to have been specifically adjudicated upon, presumably on account of the Commissioner’s decision on the merits of the appeal) that condition 42 of the building approval was a mandatory, in contrast to a discretionary, condition of the building approval.
22. Before examining the first Respondent’s argument on the “mandatory” imposition of condition 42, I must explain why, on the hearing of this s 56A appeal, it is necessary to adjudicate upon the matter, despite the fact that in coming to his decision on the merits of the appeal it was not necessary for Commissioner Hussey to adjudicate upon the first Respondent’s argument.
23. However, it is necessary that I adjudicate upon the first Respondent’s argument because if it is correct, the legal consequence is that it would entirely nullify the outcome of the Applicant’s present appeal based upon the original appeal grounds against the Commissioner’s judgment (even assuming in this respect that the Applicant were to be entirely successful) because it would render irrelevant, not only the Commissioner’s decision, but more fundamentally, the Applicant’s appeal against the Council’s decision to impose condition 42.
24. To state my conclusion more simply and starkly, the “mandatory imposition” of condition 42, could not in law be disturbed by the Applicant’s appeal pursuant to s 176 of the LG Act because there was no relevant power or discretion vested in the Council or on appeal, this Court, to displace, or dispense with, the “mandatory” condition. The logical antecedent legal consequence of such a conclusion would be more far reaching, namely that the Applicant’s appeal pursuant to s 176 was bound in law to fail, and accordingly both the hearing of the appeal and the Commissioner’s judgment, were in truth legal futilities, as would be the present s 56A appeal if it were confined to the original appeal grounds.
25. All the foregoing observations, of course, assume the correctness of the Council’s argument that condition 42 was mandatorily imposed. Significantly, however, the observations are subject to one vital qualification—namely whether Commissioner Hussey had before him when hearing and determining the appeal pursuant to the LG Act , s 176 a valid objection pursuant to the LG Act, s 82 that compliance with cl D3.2(c)(i) and (iv) of the BCA was unreasonable and unnecessary in the circumstances of the case. In this respect, there is no doubt that a document purporting to be such a written objection was tendered as Exhibit J at the hearing before Commissioner Hussey. However, the first Respondent objected to the tender and its admission into evidence was attended by considerable uncertainty (ultimately it was agreed that it should be admitted subject to the Council’s objections to jurisdiction) and in his reasons for judgment, Commissioner Hussey does not refer, in terms, either to the objection or to its fate. This omission from the Commissioner’s judgment is itself the subject for one of the Applicant’s original appeal grounds and obviously if that ground of appeal is sustained, it would overcome the Council’s argument concerning the mandatory imposition of condition 42 of the building approval.
26. It is against the foregoing somewhat complex and fluid background that the transcending importance of the additional appeal grounds raised by the Applicant at the hearing, needs to be appreciated. Although those additional grounds have an obvious connection with the original appeal grounds (numbered 3 and 4, as recited earlier) they far transcend the consequences of an alleged misconstruction by the Commissioner of cl D3.2(c)(i) and (iv) of the BCA, by asserting that properly construed, those provisions simply do not in fact, and cannot in law, apply to the development in the present case.
27. Again, assuming the correctness of the Council’s argument on the mandatory imposition of Condition 42, and with the benefit of hindsight it appears that the Applicant, instead of appealing pursuant to the LG Act, s 176 against the Council’s imposition of Condition 42, should have brought proceedings for a declaration that cl D3.2(c)(i) and (iv) properly construed, was incapable in law, of applying to the Super Centre development. However, in substance, this is the effect of the Court entertaining the Applicant’s additional appeal grounds.
28. Having regard to the foregoing discussion, the most logical and efficient manner to proceed with my to determination of the issues raised by the s 56A appeal, is to adjudicate seriatim upon each of the following issues—
(i.) whether condition 42 of the building approval was a mandatorily imposed condition;
(ii.) the true nature of the Applicant’s appeal pursuant to the LG Act, s 176 against Condition 42 of the building approval and the scope of the Court’s power to determine that appeal in respect of the imposition of Condition 42;
(iii.) whether the Applicant’s additional appeal grounds have been established;
(iv.) if the Applicant’s additional appeal grounds are not established, whether any of its original appeal grounds have been established.
D. IS CONDITION 42 OF THE BUILDING APPROVAL A MANDATORY CONDITION?
29. In my judgment the first Respondent’s argument that condition 42 was a mandatorily imposed condition on the grant of building approval is, with respect, plainly correct, and I accept it.
30. The statutory foundations supporting the first Respondent’s argument were clearly articulated at the first instance hearing and they have been repeated on the hearing of the s 56A appeal.
31. It is common ground that in granting the building approval, the Respondent Councils were correctly applying the relevant repealed provisions of the LG Act and the related Regulations conformably to the transitional provisions contained in pt 4 of the Environmental Planning and Assessment (Savings and Transitional) Regulation 1998.
32. Those relevant repealed provisions included the LG Act, s 89(1)(a) which provided as follows:
(1) In determining an application, the council:
(a) must not approve the application if the activity or the carrying out of the activity for which approval is sought would not comply with the requirements of any relevant regulation;
33. The reference to any “relevant regulation” clearly embraced the Local Government (Approvals) Regulation 1993 which relevantly included cl 19(1), cl 25(1) and cl 52(1) which respectively provided as follows:
19. (1) The council must not approve an application for an approval referred to in Part A of the Table to section 68 of the Act unless the council is satisfied that the activity as proposed to be carried out will comply with any applicable standards established by this Regulation or by or under the Act.
25. (1) It is a condition of an approval referred to in Part A of the Table to section 68 of the Act that the activity approved, and any building, or work associated or carried out in connection with the activity, complies with any applicable standards established by this Regulation or by or under the Act.
52. (1) The standards for activities that are approved and the standards that are to be met in order for activities to be approved are (apart form any standards set out in this Regulation) the relevant provisions of:
(a) the
Building Code of Australia, in the case of the activities specified in items 1, 7 and 8 of Part A of the Table to section 68 of the Act (except the use, or permitting the use, of a temporary structure as a place of public entertainment); or
(b) Part B1 and NSW Part H102 of Volume One of the
Building Code of Australia, in the case of the activity specified in item 8 of Part A of the Table to section 68 of the Act (being the use, or permitting the use, of a temporary structure as a place of public entertainment).
(It is common ground that the activity approved by the building approval falls within the scope of Part A of the Table to s 68, namely “1. Erect a building”.)
34. In the light of these provisions of the LG Act and Regulation which are clearly “mandatory”, it is clear that the power conferred by the LG Act, s 94(1) upon a Council to:
- determine an application:
(a) by granting approval to the application either unconditionally or subject to conditions; or
(b) by refusing approval
is properly to be understood as requiring the Council to impose mandatory conditions on the approval of the application, or to refuse approval, when that result is, in either case, mandated by s 89(1)(a) and the relevant Regulation.
35. It inevitably follows from the foregoing discussion that Condition 42 was imposed on the grant of the building approval because the LG Act, s 89(1)(a) of the LG Act, cl 19(1), cl 25(1) and s 52(1)and the Local Government (Approvals) Regulation 1993, mandated its imposition.
36. That this was the true effect of the building approval (Exhibit 2) is clearly confirmed, (though confirmation is not necessary) by the imposition on that approval of condition 8 which states:
- In accordance with the Environmental Planning & Assessment (Savings and Transitional) Regulation, 1998 compliance must be given to the provisions of the Local Government Act, 1993 and the Building Code of Australia (BCA) (Amendment 4).
37. In truth, Condition 8 (which was not the subject of the Applicant’s s 176 appeal) mandates “compliance” with the BCA just as surely (albeit in more general terms) than does Condition 42 (dealing solely with cl D3.2 of the BCA).
38. In passing, I should note that Condition 42 is somewhat unusually worded inasmuch as it is expressed to be founded upon the Council’s opinion that “the Forest Road entrance is the principal public entrance” to the Super-Centre development.
39. Strictly speaking, this opinion is entirely extraneous to cl D3.2 of the BCA inasmuch as its operation in no way depends upon the consent authority forming any requisite opinion. The clause simply operates according to its own terms.
40. However, the practical utility or virtue of the language employed by Condition 42 is that it signified to the developer that the Respondent Councils considered that the requirements of cl D3.2 of the BCA applied to the Forest Road entrance to the Super-Centre.
41. For all the foregoing reasons, I hold that Condition 42 was a condition that was mandated to be imposed on the grant of the building approval by virtue of the LG Act, s 89(1)(a) and the Local Government (Approvals) Regulation 1993, cll 19(1), 25(1) and 52(1).
E. THE NATURE OF THE S 176 APPEAL AND THE COURT’S POWERS IN RESPECT OF THE APPEAL
42. The LG Act, s 176(1) confers a right of appeal upon “an applicant who is dissatisfied with the determination of a Council with respect to the applicant’s application for an approval”.
43. Clearly, in commencing the present proceedings, the Applicant was exercising its statutory right of appeal against the Councils’ “determination” of its application for approval.
44. That “determination” was relevantly to grant “approval to the application subject to conditions” (vide s 94(1)(a)), although obviously the Applicant was only “dissatisfied” with the determination to the extent that it imposed Condition 42 (and perhaps, albeit unwittingly, with the allied Condition 8).
45. The LEC Act, s 18(a) confers jurisdiction on the Court to “hear and dispose of”, inter alia, “appeals under s 176 of the Local Government Act 1993” (falling within the Court’s Class 2 jurisdiction) and the Court’s powers in determining such an appeal are conferred by the LEC Act, s 39(2), namely
(2) In addition to any other functions and discretions that the Court has apart from this subsection, the Court shall, for the purposes of hearing and disposing of an appeal, have all the functions and discretions which the person or body whose decision is the subject of the appeal had in respect of the matter the subject of the appeal.
46. To the extent, as I have already held, that the Councils were legally bound in granting the building approval to impose conditions 8 and 42, the Court, by virtue of s 39(2), is likewise bound (“functions” being defined to include “duties”: vide s 4(1)).
47. Since, as I have also held, the opinion of the Councils stated in condition 42 is legally extraneous to the operation of cl D3.2(c) of the BCA, it further follows that it was no part of the Court’s appellate function, in hearing and disposing of the appeal, to exercise for itself the Council’s decision as to whether the Forest Road entrance was relevantly “the principal public entrance”.
48. It follows that the Court’s powers pursuant to the LEC Act, s 39(2) in hearing and disposing the Applicant’s s 176 appeal, required the Court to observe the mandatory requirements of the LG Act 1993, s 89(1)(a) and cll 19(1), 25(1) and 52(1) of the relevant Regulation in the same way that the Councils were so bound.
49. It follows from the foregoing that the Court had no independent discretion to exercise in relation to the legal necessity (flowing from the statutory provisions I have identified) that there be compliance, inter alia, with relevant provisions of the BCA.
50. It further follows that Commissioner Hussey’s decision to dismiss the Applicant’s appeal is legally unassailable upon all of the original appeal grounds except possibly for ground 2 (alleging failure to consider the Applicant’s objection under the LG Act, s 82 assuming that the Court was seised of a valid objection, a matter to which I shall shortly return).
51. However, the foregoing conclusions for the moment, must be regarded as tentative so far as concerns the impact of the Applicant’s additional appeal grounds which is next to be considered.
F. THE APPLICANT’S ADDITIONAL APPEAL GROUNDS
52. The Applicant’s argument in support of the amended appeal grounds can be summarised as follows—
(i.) Clause D3.2(c)(i) of the BCA does not and cannot apply to the Super-Centre development because the relevant “allotment boundary” is the northern boundary of the leasehold (Exhibit F) which boundary is set back some 20 m from Forest Road by that part of lot 4 Deposited Plan 869014 which is developed as a pedestrian stairway and escalators providing access from Forest Road to the elevated concourse level and over which the lessee (the developer) enjoys rights of footway.
(ii.) Cl D3.2(c)(iv) of the BCA does not and cannot apply to the Super-Centre development because there is no public entrance (let alone “the principal public entrance”) from Forest Road to the Super-Centre development.
53. The Respondents’ competing arguments may be summarised as follows:
(i.) Clause D3.2(c)(1) of the BCA does and can apply to the Super-Centre development because (i) the relevant “allotment boundary” is the boundary of lot 4 Deposited Plan 869014 to Forest Road; and (ii) the development of that part of lot 4 by the aforesaid pedestrian stairway and escalators relevantly forms an integral part of the building comprising the Super-Centre development. The BCA is concerned with buildings and their physical presence on land and in relation to public places (eg roads etc) and that focus is not to be subverted by private arrangements that may exist between landlord and lessee (as in the present case with the State Rail grant of a long term lease of the Super-Centre development to the developer).
(ii.) Cl D.3.2(c)(iv) of the BCA has been held by Commissioner Hussey to be “the principal public entrance” and that finding of fact was clearly open to him on the evidence and is legally unassailable in an appeal limited to error of law.
54. In adjudicating upon the competing submissions, I am here chiefly concerned with the proper interpretation of cl D3.2 of the BCA. Clearly par (c) is concerned with “external access” to the building, in contrast to internal access “within the building” (the latter subject being apparently dealt with by cl D3.2(a) and the accompanying Table and by cl D3.3).
55. Accordingly, the crucial question that arises in respect of the requirement for “external access” to the building is to determine the point or place by reference to that building, that is intended to be governed by the requirement for “accessible” external access. Is it from a public place (road or footpath) adjoining the allotment of land upon which the building is erected or is it at any point along the boundary of the allotment or is it by reference to some other point or place?
56. In answering these questions, in quest of the proper construction of cl D3.2, it is legitimate to have regard to the objectives and functional statements expressed in cll D01 and DC1 respectively by virtue of cl 1.0.6 of the BCA which provides:
- The Objectives and Functional Statements may be used as an aid to interpretation.
57. The objectives relevantly include the following:
(a) to provide, as far as is reasonable, people with safe, equitable and dignified access to—
(i) a building; and
(ii) the services and facilities within a building
58. The relevant functional statement is as follows:
- A building is to provide as far as is reasonable—
(a) safe; and
(b) equitable and dignified access for people to the services and facilities within
59. With the assistance of these provisions, I am of the opinion that properly construed, the requirement that there be accessible external access to the Super-Centre building “from the allotment boundary at the main points of entry” is a requirement in the present case for such access from the boundary of lot 4 with Forest Road.
60. Despite the fact that the northern boundary of the leasehold upon which the Super-Centre is erected is recessed up to 20 metres from Forest Road, the fact that the lessee enjoys rights of footway over that part of lot 4 in Deposited Plan 869014 which has a boundary (9 m in length) to Forest Road, means in my judgment, that that boundary is relevantly “the allotment boundary”, rather than is the leasehold boundary.
61. Accordingly, I would reject this additional appeal ground advanced by the Applicant.
62. For similar reasons, I must also reject the Applicant’s additional appeal ground based upon cl D3.2(c)(iv). Having held that the boundary of lot 4 in DP 869014 relevantly constitutes the “allotment boundary” for the purposes of cl D3.2(c)(i), it is but a short and logical step to hold that that boundary can, as a matter of law, also qualify as the “principal public entrance” for the purpose of cl D3.2(c)(iv).
63. Since Assessor Hussey has held (albeit with some uncertainty or qualification) that the Forest Road boundary is or may be the “principal public entrance” to the Super-Centre development, that factual finding is in my judgment unassailable on an appeal limited to error of law.
64. For all of the foregoing reasons, I hold that the Applicant has not established its additional appeal grounds.
G. THE APPLICANT’S ORIGINAL APPEAL GROUNDS
65. Although I have already held that except for ground 2 (the Commissioner’s failure to consider the Applicant’s objection under the LG Act, s 82), the original appeal grounds would not, even if fully established, result in a successful appeal, I should in deference to the competing arguments and in fairness to the Commissioner, deal with grounds 1, 3, 4 and 5 of the original appeal grounds, albeit very briefly.
66. Firstly, grounds 3 and 4 necessarily must be held to fail in view of my rejection of the Applicant’s additional appeal grounds.
67. Secondly, ground 1 has not been established inasmuch as I am satisfied that the Commissioner’s judgment on the merits did not involve any default in terms of the application of the BCA, particularly since the Applicant did not proffer any “alternative solution” within the meaning of the BCA.
68. Finally, ground 5 has not been substantiated since clearly, the Commissioner had no power to impose upon State Rail (which was not a party to the proceedings) any financial or other obligations (even ones shared with the developer) in relation to the provision of a lift facility from Forest Road to the concourse level.
69. It remains for me to consider the Applicant’s legal complaint that the Commissioner did not consider the Applicant’s objection under the LG Act, s 82.
70. That objection (Exhibit J) in terms was premised upon a finding (such as was ultimately made by the Commissioner in his judgment) that the Forest Road boundary was the relevant “main point of entry” and “principal public entrance”.
71. Although I have much sympathy for the Commissioner by virtue of the very uncertain state that the parties left the Applicant’s objection pursuant to the LG Act, s 82 at the end of the hearing, I have nonetheless concluded that the Commissioner should have entertained the objection and that his failure to do so means that he has not completed his adjudicative function in the proceedings. In so concluding, I reject the second Respondents’ submission that in his judgment the Commissioner must be taken to have dealt with, and rejected, the objection. This is to read far too much into the judgment.
72. Although that failure may not involve any ultimate disturbance of the Commissioner’s decision to dismiss the s 176 appeal, nonetheless in order that the outstanding adjudication be properly undertaken, it will be a necessary precaution to order that the Commissioner’s decision be set aside so that he may proceed to complete his adjudication by determining whether or not the objection under the LG Act, s 82 should be upheld.
73. In so concluding, I would reject the Respondents’ submissions that there was no jurisdiction for the Court to entertain the objection. A number of reasons were advanced in support of this submission—
(i.) the objection under s 82 was incompetent because it was not made to the Council by “an applicant for an approval” since the objection only came into existence post the Council’s decision to grant the building approval;
(ii.) the Court is not vested with any jurisdiction in respect of an objection pursuant to the LG Act, s 82;
(iii.) the concurrence of the Director General as required by s 82(3) was not sought;
(iv.) s 82 does not permit the making of a “retrospective” objection;
(v.) no appeal was brought to the Court in respect of the objection.
74. In my respectful judgment, these cogent arguments do not prevail to excuse the failure to determine the s 82 objection.
75. My reasons for so concluding can be briefly stated as follows:
(i.) By instituting the appeal pursuant to s 176 of the LG Act, the Applicant vested the Court with jurisdiction to hear and dispose the appeal against the Councils’ determination of the Applicant’s application for approval;
(ii.) Even though the parties litigated the appeal by confining attention to the imposition of Condition 42, in legal theory and fact, the whole of the Council’s determination was before the Court, and it remained legally possible for the Court’s decision to disapprove the application altogether notwithstanding the Council’s conditional approval: see the LG Act, s 101(2) and (3).
(iii.) It follows from propositions (i) and (ii) that the Applicant before this Court was relevantly an “applicant for approval” within the meaning of the LG Act, s 82(1);
(iv.) By virtue of the LEC Act, s 39(2), the Court in hearing and disposing of the appeal had all of the functions of the Council’s in relation to the subject matter of the appeal, (ie the application for approval) and those functions included the function of considering an objection pursuant to the LG Act, s 82 (which apparently had been filed on the Council’s Solicitor’s some months before the hearing by the Commissioner).
H. CONCLUSIONS AND ORDERS
76. For all the foregoing reasons, the appeal must succeed, but only in respect of ground 2 of the original appeal grounds.
77. In respect of all other grounds (including the additional appeal grounds), the appeal fails for the reasons I have given.
78. In consequence of these conclusions, the appeal must be allowed and the proceedings must be remitted to Commissioner Hussey for him to adjudicate upon the Applicant’s objection pursuant to the LG Act, s 82.
79. Accordingly, I make the following orders:
1. Appeal allowed.
2. Set aside the orders made by the Commissioner in his judgment of 19 July 2000.
3. Remit the proceedings to the Commissioner for the completion of the outstanding adjudication required in respect of the Applicant’s objection pursuant to the LG Act, s 82 (as set forth in Exhibit J).
4. Exhibits be retained in the Court file.
5. Question of costs be reserved.
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