Todbern Pty Limited v Hurstville City Council and Anor. (No. 2)
[2002] NSWLEC 86
•28/05/2002
Reported Decision: 120 LGERA 433
Land and Environment Court
of New South Wales
CITATION: Todbern Pty Limited v Hurstville City Council and Anor. (No. 2) [2002] NSWLEC 86 PARTIES: APPLICANT:
RESPONDENTS:
Todbern Pty Limited
Hurstville City Council and Anor.FILE NUMBER(S): 20071 of 1999 CORAM: Bignold J KEY ISSUES: Appeal :- Section 56A Appeal-Whether Commissioner failed to consider Applicant's case in support of objection-Whether sufficient reasons given for decision
LEGISLATION CITED: Land and Environment Court Act 1979, s 56A
Local Government Act 1993 s 82CASES CITED: Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139;
Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430;
Brimbella Pty Ltd v Mosman Municipal Council (1985) 79 LGERA 367;
Colin Graham and Partners Pty Ltd v The Council of the Shire of Great Lakes (Court of Appeal-unreported 6 May 1982);
Fast Bucks$ v Byron Shire Council (1999) 103 LGERA 94;
Martin and Spork Pty Ltd v South Sydney City Council (1999) 103 LGERA 213;
McPhee v S Bennett Ltd (1934) 52 WN (NSW);
Saxer v North Sydney Municipal Council (1988) 64 LGRA 203;
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247;
Todbern Pty Ltd v Hurstville City Council (2001) NSWLEC 145;
Wall v Great Lakes Shire Council (1986) 59 LGRA 127;
Westport Marina Developments Pty Ltd v Concord Council (2000) 109 LGERA 451;
Woollahra Municipal Council v TAJJ Investments Pty Limited (1982) 49 LGRA 123DATES OF HEARING: 15 May 2002 DATE OF JUDGMENT:
05/28/2002LEGAL REPRESENTATIVES:
APPLICANT:
Mr P Clay, BarristerSOLICITORS
SOLICITORS
Carneys
FIRST RESPONDENT:
Mr P Rigg, Solicitor
SECOND RESPONDENT:
Mr A Pickles, Barrister
FIRST RESPONDENT:
Deacons Graham and James
SECOND RESPONDENT:
Abbott Tout
JUDGMENT:
IN THE LAND AND
Matter No. 20071 of 1999
ENVIRONMENT COURT OF
Coram: Bignold J.
NEW SOUTH WALES
28 May 2002
TODBERN PTY LIMITED
Applicant
v
HURSTVILLE CITY COUNCIL
First Respondent
KOGARAH MUNICIPAL COUNCIL (No. 2)
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 disallowing the Applicant’s objection pursuant to s 82 of the Local Government Act 1993 (the LG Act) and in consequence of that disallowance, dismissing the Applicant’s appeal pursuant to the LG Act, s 176 against the decision of the Respondent Councils to impose the following condition on the grant of approval on 26 August 1999 to the Applicant’s building 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.
2. The reference to the BCA is a reference to the Building Code of Australia 1996 (BCA). 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.
3. During the original hearing, the Commissioner admitted into evidence, subject to the first Respondent’s objection to jurisdiction, as Exhibit J, the written objection by the Applicant pursuant to the LG Act 1993, s 82 that compliance within the relevant BCA standard was unreasonable or unnecessary in the circumstances of the case (the “s 82 objection”).
4. The Commissioner’s decision, the subject of the present appeal, was in the form of a reserved judgment handed down on 14 November 2001.
5. The Commissioner’s decision was made in proceedings that had been remitted to him by Orders made by me on 6 July 2001 in determining an earlier appeal pursuant to the LEC Act, s 56A brought by the Applicant against the Commissioner’s original judgment, which was handed down on 19 July 2000, dismissing the Applicant’s appeal against the Respondent Councils’ decision to impose Condition 42.
6. In my judgment upholding the original s 56A appeal, (Todbern Pty Ltd v Hurstville City Council (2001) NSWLEC 145), I concluded that the Commissioner had failed to adjudicate upon the Applicant’s s 82 objection. The proceeding was remitted to him “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)”: vide Order 3.
7. In my earlier judgment, I noted at par 25 that the status and function of the s 82 objection had remained very much “up in the air” at the original hearing before the Commissioner, principally because of the first Respondent’s submission that the Court lacked jurisdiction to entertain the objection for the reasons that are enumerated in par 73 of my judgment (which I rejected at par 74 for the reasons given at par 75).
8. It was in these circumstances that I concluded at par 71 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 rejected the second Respondent’s submission that “in his judgment, the Commissioner must be taken to have dealt with and rejected the application”.
9. Upon the remitter, the parties only very briefly appeared before the Commissioner on 23 October 2001 and “made brief submissions that the adjudication could be completed on the basis of previous evidence and submissions”: vide par 2 of the Commissioner’s reasons for judgment handed down on 14 November 2001. For present purposes, it is important to note the position adopted by the Applicant at the hearing of the remitted proceeding as recorded in the Transcript. Appearing by its Solicitor (and not by Counsel who had appeared for it at both the original hearing and on the original s 56A appeal) its initial position was to leave the matter open to the Commissioner as to whether he was prepared to deal with the objection on the basis of the evidence given at the original hearing or whether he required to be further addressed on the outstanding matter. Following submissions by the Respondents that each considered it appropriate for the Commissioner to adjudicate upon the objection on the basis of the evidence and submissions made at the original hearing, the Commissioner asked the Applicant’s Solicitor whether the Applicant “felt the need to make any further submissions” and was informed that the Applicant did not wish to do so.
B. THE COMMISSIONER’S DECISION DISALLOWING THE APPLICANT’S S 82 OBJECTION
10. In his reasons for judgment, the Commissioner correctly identified the nature of his task on the remitter (pars 1 to 3), correctly identified “the grounds” for Applicant’s s 82 objection (Exhibit J) which s 82(2) required the “applicant to specify” (pars 4 to 7) and summarised his findings contained in his original judgment (pars 8 and 9) before dealing with his adjudication upon the objection in the following passage at pars 10 to 13 (inclusive):
- 10 When I then adopt the derived objectives of the standard contained in the s 82 objection, which is to require suitable disabled access to be provided so as not to discriminate against disabled members of the public, I do not consider the insistence of these requirements are unreasonable and unnecessary in this case.
11. On the evidence before the Court I am satisfied that the shops and other public facilities on Forest Road have a linkage with the concourse shops and as such would most likely form the principal public entrance to the proposed development.
12 Under these circumstances then, the provisions of cl D3.2 (c)(i) and (iv) seem reasonable in the circumstances of this case to ensure that disabled people are not discriminated against in obtaining reasonable external access to the building, through this principal public entrance.
13. Accordingly I do not think that the s 82 objection has been satisfactorily made out that compliance with the provision of cl D3.2(c)(i) and (iv) are unreasonable and unnecessary in this case.
C. THE GROUNDS FOR APPEAL
11. By its “Amended Statement of Grounds”, the Applicant alleges the following two errors of law which are claimed to vitiate the Commissioner’s decision disallowing the Applicant’s s 82 objection:
1. The Commissioner failed to consider the S.82 objection in accordance with law in that the Commissioner failed to:-
- (a) identify the underlying object or purpose of the provision; and
(b) consider whether compliance with the provision tended to hinder the attainment of the objectives of the EP & A Act; and
(c) consider whether compliance with the provision is unreasonable or unnecessary in the circumstances of this case.
2. In the alternative the Commissioner erred in failing to give reasons or any proper reasons for disallowing the objection.
12. In the course of argument, the Applicant rightly conceded that pars (a) and (b) of Ground 1 could not be sustained (because the Commissioner, in his judgment, had clearly identified the underlying object of the relevant provision contained in the BCA, being the very same object that the Applicant’s written objection had identified and because the objectives of the Environmental Planning and Assessment Act 1979 were wholly irrelevant to the Applicant’s s 82 objection). The result is that Ground 1 is confined to what is alleged in par (c).
13. Accordingly, the present appeal alleges two relevant errors of law vitiating the Commissioner’s decision to disallow the objection, namely:
(i) his failure to consider the Applicant’s objection in that he failed to consider whether compliance with the relevant provision of the BCA was unreasonable or unnecessary in the particular circumstances of the case; and
(ii) his failure to give any or sufficient reasons for disallowing the objection.
14. I shall separately consider each of these alleged errors of law.
D. THE ALLEGED FAILURE TO CONSIDER THE APPLICANT’S 82 OBJECTION
15. The Applicant’s argument invites the Court to infer from pars 11 and 12 of the Commissioner’s reasons for judgment that he did not properly consider the s 82 objection at all. In support of this submission, the Applicant argues that these passages expose “circular logic” inasmuch as having found that the relevant BCA standard requires disabled access to Forest Road because it is the “principal entrance” the Commissioner disallowed the objection because Forest Road is the “principal entrance”.
16. It necessarily followed, so the Applicant’s argument went, that the Commissioner had not considered the Applicant’s s 82 objection.
17. As I have earlier noted, pars 10 to 13 of the Commissioner’s judgment express his adjudication upon the Applicant’s objection, after he had first correctly identified his task on the remitted proceeding—namely to determine the s 82 objection, upon the grounds stated in Exhibit J (the Applicant’s written objection).
18. In par 10 of his reasons the Commissioner states a conclusion “I do not consider the insistence of these requirements (to provide suitable disabled access) are unreasonable and unnecessary in this case”. The use of the word “insistence”, I think, is intended as a synonym for “compliance” which is the term employed in the statutory language of the LG Act, s 82(1)(b) which states:
- 82 (1) An applicant for an approval may lodge with the council an objection:
(b) that compliance with any provision of those regulations or such a policy is unreasonable or unnecessary in the particular circumstances of the case.
19. In my judgment, the Commissioner’s conclusion can fairly be regarded as a finding that “compliance with the relevant standard” was not “relevantly unreasonable or unnecessary in the particular circumstances of the case” and hence, was a rejection of the Applicant’s case cf Fast Bucks$ v Byron Shire Council (1999) 103 LGERA 94 at 98 and 99 where Handley JA in examining the reasons for judgment of the Senior Assessor applied the well settled approach that an appeal court does not examine such reasons “too narrowly as if they were written by a lawyer”: see Brimbella Pty Ltd v Mosman Municipal Council (1985) 79 LGERA 367.
20. The Commissioner’s conclusion is put beyond doubt by the Commissioner’s ultimate finding expressed at par 13. This ultimate finding can only mean that the Commissioner was unpersuaded by the Applicant’s case in support of its s 82 objection and accordingly disallowed it. In this respect, it is important to bear in mind that the Applicant had the onus of establishing that its objection was “well founded” within the meaning of the LG Act, s 82(3): see Colin Graham and Partners Pty Ltd v The Council of the Shire of Great Lakes (Court of Appeal—unreported 6 May 1982); Wall v Great Lakes Shire Council (1986) 59 LGRA 127 and Saxer v North Sydney Municipal Council (1988) 64 LGRA 203.
21. The important legal consequence in the present proceedings (which limit the Court’s appellate power to correcting errors of law) of the location of the onus of proof in the Applicant, lies in the fact that a challenge to a decision of a tribunal (having exclusive jurisdiction to determine facts) which declines to make a finding in favour of the party bearing the onus never raises a question of law: see McPhee v S Bennett Ltd (1934) 52 WN (NSW) 8 at 9; Woollahra Municipal Council v TAJJ Investments Pty Limited (1982) 49 LGRA 123 at 127; Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 155. This is because “(T)here is no rule of law that such a tribunal must believe the evidence, because it is all one way. It can accept all, or some, or none of it”: McPhee at 9.
22. But to return to the Applicant’s present complaint (which does raise a relevant question of law) that the Commissioner did not properly consider its objection, I would initially say that in context (including the recitation in pars 4 to 7 of his judgment of the precise grounds supporting the Applicant’s s 82 objection) it is virtually inconceivable that the Commissioner, in reaching his ultimate finding that the s 82 objection had not been “satisfactorily made out” would have ignored consideration of the grounds supporting the objection.
23. Yet the Applicant’s submission invites the Court to infer from what the Commissioner states at pars 11 and 12 of his judgment, that the inconceivable did in fact occur, in that the Commissioner ignored the grounds supporting the Applicant’s objection or otherwise relevantly failed to consider the objection.
24. The sole basis for this very bold (if not desperate) submission is that what the Commissioner says in pars 11 and 12 of his judgment betrays a process of circular or illogical reasoning along the following suggested lines:
- (i) the relevant BCA standard requires disabled access to Forest Road because it is the “ principal entrance ” (to the building); and
(ii) because Forest Road is the “principal entrance” the objection is disallowed.
25. If pars 11 and 12 were to be properly so interpreted, it necessarily would follow in the Applicant’s submission that the Commissioner did not consider the Applicant’s objection (including the grounds for the objection) because that objection implicitly conceded that Forest Road provided the principal entrance, and on that account, that the relevant BCA standard was applicable, but nonetheless went on to provide grounds why compliance with that standard was unreasonable or unnecessary in the particular circumstances of the case. These grounds are encapsulated in the following extract from the Applicant’s written objection (Exhibit J) which is recited in par 6 of the Commissioner’s judgment:
- …having regard to the nature of the building work being a refurbishment of an existing building, the physical constraints evident at the existing Forest Road entry/exit, and the alternative disabled access otherwise available, it is unreasonable and unnecessary for the provision of a further disabled access.
26. I would be driven to accept the Applicant’s argument if its interpretation of pars 11 and 12 of the Commissioner’s judgment were correct. But is it correct?
27. I do not think that that interpretation is the correct interpretation and there are other available interpretations which I would prefer. In particular, what I would understand the Commissioner to be saying in pars 11 and 12 is that since Forest Road would most likely form the principal public entrance to the proposed development (because of the higher degree of commercial activity on the Forest Road side of the development and the likelihood of more pedestrians entering the development from Forest Road) it would be reasonable in the circumstances of this case that disabled persons not be discriminated against in obtaining access from Forest Road and that result would be reasonably achieved by insisting upon compliance with the relevant BCA standard in respect of the Forest Road access to the development.
28. To put the matter another way, as I would understand the Commissioner’s findings in relation to Forest Road (contained in pars 11 and 12 of his judgment), they were not for the purpose of establishing the application of the relevant BCA standard for access from Forest Road (because that would have been an entirely redundant purpose since the Applicant’s objection is implicitly premised upon the application of the BCA standard to the access from Forest Road) but they were for the purpose of expressing his planning or merits evaluation of what he judged to be the reasonable access arrangements required by the proposed development.
29. The preferred interpretation of what the Commissioner said in pars 11 and 12 of his judgment is supported by consideration of the manner in which the Commissioner had adjudicated at the original hearing, where it is apparent from his original judgment that the Commissioner was adjudicating upon the basis of the planning merits of the requirements for access to the development. This is made abundantly clear by the following statement in par 13 of his original judgment:
- The critical issue in this case is whether it is reasonable to require provision of access for the disabled by way of a lift from the super centre concourse to Forest Road, as part of this building approval.
30. In his judgment, the subject of the present s 56A appeal, the Commissioner states in par 8:
- In my original judgment, I endeavoured to deal with the merits of the access arrangements for the proposal in terms of the BCA cl 3.2(c)(i) which requires provision of external access to the building of the main points of entry.
31. Although the principal issues agitated at the original hearing concerned the factual questions whether Forest Road was relevantly (a) “a main point of entry at the allotment boundary” (cl D3.2(c)(i)); and (b) “the principal public entrance” (cl D3.2(c)(iv)) which factual questions were both determined adversely to the Applicant it is a matter of some significance for present purposes, that the Commissioner’s adjudication addressed the “reasonableness” or the “merits” of the access arrangements for the development. Since no question of the “reasonableness” of “merits” of the access requirements truly arose on the disputed factual questions it is apparent that the original case was conducted by the parties upon the basis that the Commissioner possessed some unidentified discretion to consider the reasonableness or merits of the access requirements imposed by the BCA standard in the present case. (Ironically, and perhaps unwittingly to the parties and the Commissioner (because of the mandatory requirements that condition 42 be imposed—see pars 29 to 41 of my earlier judgment), the only way that an adjudication upon the reasonableness or merits of the access requirements could have been legally relevant to these proceedings was if the Commissioner were determining an objection pursuant to the LG Act, s 82.)
32. But there is no need for me to pursue this matter further other than to note that the Commissioner’s original adjudication, for whatever reason or upon whatever basis, obviously went beyond the mere determination of the two factual questions in issue before him concerning the question whether the relevant BCA standard applied to the access to the development from Forest Road. The adjudication clearly enough considered the “reasonableness” or “merits” of the required access arrangements.
33. For all the foregoing reasons, I hold that the Applicant has not established its claim that the Commissioner failed to consider the s 82 objection and the grounds for that objection in disallowing the objection.
E. THE ALLEGED FAILURE OF THE COMMISSIONER TO GIVE REASONS FOR DISALLOWING THE APPLICANT’S S 82 OBJECTION
34. It has long been established that Commissioners (and formerly Assessors) of this Court are bound to give reasons for their adjudications: for early examples see Wall v Great Lakes; Saxer v North Sydney—Wall, having been decided before, and Saxer having been decided after, the highly significant decision of the Court of Appeal in Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 which propounded the relevant principles governing the judicial duty to give reasons for judgment: see Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430.
35. In more recent judgments of this Court, (Martin and Spork Pty Ltd v South Sydney City Council (1999) 103 LGERA 213 and Westport Marina Developments Pty Ltd v Concord Council (2000) 109 LGERA 451), the Chief Judge has confirmed that this duty applies to decisions of Commissioners of this Court, but has recognised that the scope or content of that duty is necessarily modified by applying the approach adopted in Brimbella of an appeal court not examining the reasons given by Commissioners too narrowly as if they were written by a lawyer. As I have earlier noted, this modified approach was adopted by the Court of Appeal in Fast Bucks$.
36. The scope and content of the judicial duty to give reasons for adjudications was expounded in the following passages from the judgment of McHugh JA (as he then was) in Soulemezis—
- If an obligation to give reasons for a decision exists its discharge does not require lengthy or elaborate reasons: Ex Parte Powter; Re Powter (1945) 46 SR (NSW) 1 at 5. But it is necessary that the essential ground or grounds upon which the decision rests should be articulated. (at 280)
Moreover, I agree with the statement by Mahoney JA in Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd (at 386; 332) that the extent of the duty to give reasons is related to the function to be served by the giving of reasons. Thus more elaborate reasons are required where legislation gives a right of appeal against a decision than where no appeal lies. In the first class of case, unless the basis of the decision is properly articulated, the losing party may be effectively deprived of his right of appeal. In a case where a right of appeal is given only in respect of a question of law, different considerations apply from the case where there is a full appeal. An ultimate finding of fact, which is not subject to appeal and which is in no way dependent upon the application of a legal standard, can be treated less elaborately than an issue involving a question of law or mixed fact and law. 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. (at 280/281)
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While it is true that his Honour did not expressly give any reason for the finding, his reasons for judgment show quite clearly in my opinion that he held that the applicant was fit for work because the CAT scan did not reveal any abnormality. It is not to the point that his Honour’s finding was erroneous or, as counsel for the applicant claimed, perverse. An erroneous or perverse finding of fact raises no question of law and cannot be challenged by way of appeal. What is decisive is that his Honour’s judgment reveals the ground for, although not the detailed reasoning in support of, his finding of fact. But that is enough in a case where no appeal lies against the finding of fact. Accordingly there was no failure to give reasons sufficient to constitute an error of law. (at 282)
37. In my opinion, the Commissioner’s judgment contains in pars 10 to 13 a sufficient statement of the grounds for his decision disallowing the Applicant’s s 82 objection, that satisfies in this case the duty to give reasons. To adopt the words of McHugh JA in the last of the passages that I have quoted from his judgment in Soulemezis, the Commissioner has stated “the ground for, although not the detailed reasoning in support of, his finding of fact” that the s 82 objection was not “well founded”. Those grounds are those stated in pars 11 and 12 as I have earlier interpreted them (in rejecting the Applicant’s interpretation advanced in support of its first ground of appeal, namely that the Commissioner did not consider the Applicant’s grounds for the s 82 objection).
38. It is tolerably clear that because of his findings of (i) the likelihood of more pedestrians accessing the development from Forest Road than from Ormonde Parade (situate on the opposite side of the railway line); and (ii) of the reasonableness of disabled access being available to and from Forest Road, that the Commissioner considered that these matters outweighed the factors constituting the three grounds supporting the Applicant’s s 82 objection. This fact finding decision was clearly the result of the exercise of a discretionary planning judgment that was vested in the Commissioner by the LG Act, s 82(3) in respect of the Applicant’s s 82 objection. The discretionary planning judgment made in the case was consistent with the Commissioner’s acceptance of all of the facts asserted in the Applicant’s grounds for its s 82 objection. It simply demonstrated that the Applicant’s case (including those grounds) did not persuade him that compliance with the BCA standard was unreasonable or unnecessary in the particular circumstances of the case.
39. In so concluding, I would emphasise that like the facts in Soulemezis, the present case involved a finding of fact by the Commissioner (namely whether the s 82 objection was well founded) which finding involved no legal standard and which finding is not susceptible to appeal. In such a case, as McHugh JA pointed out at 281 in Soulemezis the question for the appeal court is “whether the failure to explain the basis of the crucial finding of fact involves a breach of the principle that justice must not only be done but must be seen to be done”. However, his Honour immediately warned that in determining that question, “great care needs to be taken that dissatisfaction with the finding of fact does not mislead the Court into holding that the learned judge has failed to give his reasons for his finding”.
40. In my judgment, unlike the facts in Beale v GIO, this is not a case where it can be said that the Commissioner’s decision involves a breach of the principle that “justice must not only be done but be seen to be done”, or that the decision “leaves the Applicant with a justifiable sense of grievance”. Indeed, the litigation history reveals the present case to be quite to the contrary. In this respect, I would again draw attention to the manner in which the Applicant has conducted its case. At the original hearing appealing against the imposition of condition 42 its principal case was to the effect that the relevant BCA standard simply did not apply to the Forest Road access to the development. The issue for adjudication raised by that case was purely a question of fact, upon which question the Commissioner’s original decision was entirely adverse to the Applicant’s case. However, at that original hearing the Applicant, over the first Respondent’s objection also tendered its s 82 objection late in the case. It was clearly in the nature of a backstop to the Applicant’s principal case that the BCA standard did not apply to the Forest Road access to the development.
41. As I have earlier noted, the status of the s 82 objection was left in a very uncertain state at the original hearing, principally because of the first Respondent’s objection to the jurisdiction of the Court to entertain the s 82 objection. Although the Commissioner’s original judgment contains no reference whatsoever to the Applicant’s s 82 objection, it is clear, as I have already demonstrated, that for whatever reason, the Commissioner’s judgment purported to adjudicate upon the reasonableness or the merits of the access requirements for the development. Again, that adjudication was adverse to the Applicant. The Applicant’s first s 56A appeal against the Commissioner’s original decision failed, not only upon the original grounds of appeal but upon the radically recast grounds of appeal, except for the ground that the Commissioner had failed to determine the Applicant’s s 82 objection.
42. Upon the remitter of the proceedings to the Commissioner in order that he complete that outstanding adjudication, the Applicant deliberately chose to rely entirely upon the evidence and submissions made at the original hearing (the result of which had been that the appeal was dismissed and the Commissioner’s adjudication on the reasonableness or merits of the case was against the Applicant).
43. In all of these circumstances, the Applicant’s present complaints with the Commissioner’s adjudication upon the remitted proceedings disallowing the s 82 objection, in truth savours of dissatisfaction with the factual findings and accordingly, the warning contained in McHugh JA’s judgment in Soulemezis that this dissatisfaction not be allowed to mislead the appeal court into holding that the Commissioner has failed to give reasons for his ultimate finding is, in my judgment, very much in point. The Applicant has not established this ground of appeal.
F. CONCLUSIONS AND ORDERS
44. For all of the foregoing reasons, I make the following orders—
1. Appeal dismissed.
2. Question of costs is reserved.
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