Trowbridge v Ledbury
[1999] NSWLEC 94
•21 April 1999
Land and Environment Court
of New South Wales
CITATION:
Trowbridge & Anor -v- Ledbury & Ors [1999] NSWLEC 94
PARTIES
Applicants:
Trowbridge & AnorRespondents:
Ledbury & Ors
NUMBER:
40054 of 1999
CORAM:
Talbot J
KEY ISSUES:
:- Decision not to notify nearby property owner of development application - decision to allow SEPP 1 objection - failure to consider particular clauses of DCP
Judicial Review:- Manifest unreasonableness
Judicial Review:- Alleged failure to make inquiry in respect of matter centrally relevant and reasonably available
LEGISLATION CITED:
Decision not to notify nearby property owner of development application - decision to allow SEPP 1 objection - failure to consider particular clauses of DCP
Judicial Review:- Manifest unreasonableness
Judicial Review:- Alleged failure to make inquiry in respect of matter centrally relevant and reasonably available
DATES OF HEARING:
04/12/1999; 04/13/1999; 04/14/1999; 04/15/1999
DATE OF JUDGMENT DELIVERY:
04/21/1999
LEGAL REPRESENTATIVES:
Applicants:
Mr D P F Officer QC
with:
Mr J B Maston (Barrister)
Solicitors:
Wilshire WebbFirst and Second Respondents:
Third Respondent:
Mr T S Hale (Barrister)
Solicitors:
Kemp Strang
Mr B J Preston (Barrister)
Solicitors:
Mallesons Stephen Jaques
JUDGMENT:
Contents
- Introduction and Issues
- Was the Decision Manifestly Unreasonable
- The SEPP 1 Objection
- The Alleged Failure to consider Clause 9 of DCP No. 1
- Conclusion
- Orders
IN THE LAND AND Matter No. 40054 of 1999
ENVIRONMENT COURT Coram: Talbot J
OF NEW SOUTH WALES Decision Date: 21 April 1999
Third Respondent
Introduction and Issues
1. The second respondent is the owner of No. 3 Prior Avenue, Cremorne which is in a row of five houses identified as heritage items pursuant to the North Sydney Local Environmental Plan 1989 (the LEP).
2. The applicants own and reside at No. 7 Prior Avenue.
3. On 23 February 1998 the first respondent lodged a development application and a building application on behalf of the second respondent. The applications were in respect of a proposed one storey addition including a bedroom and en suite with dormer windows all stated to be within the roof line which is to be elevated.
5. Clause 28 of the LEP provides:-4. No. 7 Prior Avenue enjoys distant views of Sydney Harbour, including Fort Dennison, across to the southern shore of the harbour and the city skyline, in part over No. 3.
- Advertisement of Development Applications
28. Pursuant to section 30(4) of the Act, and subject to the regulations made under the Act, the provisions of Sections 84, 85, 86, 87(1) and 90 of the Act apply to and in respect of all applications for development consent made under the provisions of this plan in the same way as those provisions apply to and in respect of designated development.
6. At all relevant times s 84(1)(a)(i) and (ii) of the Environmental Planning and Assessment Act (EPA Act) provided as follows:-
- 84 Notice of applications respecting designated development
(1) Where a development application is made for consent to carry out designated development, the consent authority shall forthwith:
- (a) give written notice of that development application:
(ii) where practicable, to such other persons as appear to it to own or occupy land the use and enjoyment of which, in the opinion of the consent authority, may be detrimentally affected if that designated development is carried out(i) to such persons as appear to it to own or occupy the land adjoining the land to which the development application results,
7. Subclause (ii) is relevant to consideration of the issues which arise in these proceedings.
8. The third respondent council formally admits that, between the date of lodgement of the development application and the date of notification given to 18 persons by a letter dated 3 March 1998, neither the Duty Officer nor the Assessment Officer or Team Leader visited the site. The evidence shows that those three identified council officers were the only relevant officers concerned with processing the development application.
9. The letter dated 3 March 1998 expressly referred to notice under cl 28 of the LEP.
11. The council Assessment Officer, Linc Roberts, and the Team Leader, Sandra Hicks, described the proposal in reports made to council on 25 May 1998 and 15 June 1998 as follows:-10. A notice was not forwarded to the applicants.
- The proposal involves the erection of a third storey for the accommodation of a master bedroom, robe, bathroom and balcony. The subfloor area is to be excavated and a laundry, cellar, rumpus and study are to be installed. Alterations and additions are to be undertaken at the ground floor level to extend the kitchen and decrease the size of the balcony. The lower floor and upper floor are to be accessed via a staircase that adjoins the meals area. The exterior is to be finished with harditext and then resurfaced with granotrowel. An off street carparking space is to be installed to the front south/eastern side of the allotment.
12. It is admitted that, when the application was lodged with council, Nicole Askew was the Duty Officer who had the responsibility for notification of the proposal pursuant to cl 28 of the LEP.
13. The only evidence regarding the process undertaken by the Duty Officer when a development application is lodged is to be garnered from an inter-office memorandum dated 3 December 1997 describing the duty functions. The memorandum states that the Duty Officer, as well as describing the development for the purposes of advertising, is to mark on a plan those properties to be notified. The memorandum also states that a copy of the cadastral maps and notification policy will be available at the duty desk.
14. Although the distribution list contained in the file showed 18 names and addresses, a plan which appears to have been marked for the purpose of identifying properties to be notified, shows only 14 properties, all of which are in immediate proximity to No. 3 Prior Avenue.
15. The notice forwarded on 3 March 1998 described the proposal as alterations and additions to the dwelling house and invited the recipient to inspect the application and to make written submissions between 5 March 1998 and 26 March 1998.
Was the Decision Manifestly Unreasonable
16. The applicants claim that the decision of the council not to notify the application to them in accordance with cl 28 of the LEP was manifestly unreasonable based on the approach taken by Wilcox J in Prasad v Minister for Immigration and Ethnic Affairs (1985) 65 ALR 549 at 562 - 563. The High Court appears to have accepted the correctness of this approach in an appropriate case (see Kioa v West (1985) 159 CLR 550 at 576 and Minister for Immigration and Ethnic Affairs v Ah Hin Teoh (1994 - 1995) 183 CLR 273 at 290). Although his Honour was there dealing with the provisions of the Administrative Decisions (Judicial Review) Act 1977 (Cth), those provisions for present purposes appear to be no more than a reflection of the grounds on which administrative decisions are susceptible to challenge at common law.
17. Wilcox J formed the tentative view that a power is exercised in an improper manner if the decision maker makes his or her decision in a manner so devoid of any plausible justification no reasonable person could have taken this course, for example by unreasonably failing to ascertain relevant facts which he or she knew to be readily available to them. His Honour went on to say that, in a case where it is obvious that material which is centrally relevant to the decision to be made is readily available, it seems that to proceed to a decision without making any attempt to obtain that information may properly be described as an exercise of the decision making power in a manner so unreasonable that no reasonable authority would have so exercised it.
18. The applicants claim that the failure to go to the site for the purpose of understanding the topography and the relationship to other properties before determining the extent of notification was so unreasonable and devoid of any plausible justification that no reasonable council could have taken that course.
19. The Court must be careful not to substitute its own view on the matter for that of the council ( Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24). The test is whether the omission to go to the site before making the decision was so unreasonable in the circumstances that it lacks any plausible justification. The intermediate position taken by Wilcox J entitles the Court to consider those facts which were known to the decision maker, actually or constructively, together only with such additional facts as the decision maker would have learned but for any unreasonable conduct.
20. There is no evidence of the actual state of knowledge of the Duty Officer. No fact has been established which would entitle the Court to infer that she had no knowledge or any particular familiarity with the locality.
21. I agree with what the Chief Judge observed in Hospital Action Group v Hastings Municipal Council (1993) 80 LGERA 190 at 197 when she said, “ it is clear that the duty to inquire identified by Wilcox J is limited to material which is `centrally relevant’ and ‘readily available’ ” . There appears to be no case for supporting a proposition that the duty to inquire is any broader than that. It must be shown that to make the relevant decision without any attempt to be informed about such a vital matter would deprive the decision of any credibility.
22. Mr Officer QC submits that a site inspection was centrally relevant to the decision about who should be notified because the decision is one intricately involving detail of the local environment so that one can determine who may be detrimentally affected. He does not suggest that the Duty Officer possessed no knowledge of the area. But if some knowledge is implied, then, according to Mr Officer, that makes the breach even greater because it can be inferred that she knew where the harbour was in relation to the land and also the topography which generally involved a fall from Bannerman Street in the north, through No. 7, across to No. 3, in the general direction of Shell Cove.
23. The applicants’ consultant town planner, Mr Peter Le Bas, gave evidence that a visitor to Prior Avenue would become immediately aware of the large sandstone coloured three level house at No. 7 and the obvious change of topography along the frontage of No. 7 where the sill levels of all south facing windows are at a much higher level than the corresponding window levels in any of the other houses fronting Prior Avenue, by a significant margin. Mr Le Bas, says, “it is obvious that the raising of the roof of number 3 Prior Avenue was likely to present a significant change of visual impact and an obstruction of views to the south from the building on No. 7 Prior Avenue, but hardly, if at all, in respect of views from numbers 4, 5 and 6 Prior Avenue” .
25. There are therefore two crucial questions which need to be determined as follows:-24. Mr Le Bas also gave evidence of his opinion that in order to determine who were the owners and occupiers of land, the use and enjoyment of which may have been detrimentally affected if the development was carried out, it was necessary to inspect the locality to observe the physical attributes of the locality and the buildings on it. He did not amplify this opinion or give any further reasons for it.
(ii) Whether, if a site inspection had been carried out, it would have been manifestly unreasonable not to give the owners of No. 7 the required notice.(i) Whether in the discharge of its duty pursuant to s 84 it was imperative for the council to inspect the site, to the extent that it would have been manifestly unreasonable not to, in order to determine land the use and enjoyment of which may be detrimentally affected.
26. The purpose of giving notice pursuant to s 84 is to ensure that the council has the benefit of the views of objectors before determining the development application. The objectors are thereby given an entitlement to make their views known. The achievement of those purposes is facilitated by the giving of notice on an informed basis. The process is further assisted by the affixing of a notice on the subject property and publication in the newspaper. The reason for the notice required pursuant to s 84(1)(a)(ii) is to ensure that those persons who are likely to have a more specific interest in the impacts of the development are given a direct opportunity to consider their position.
27. It is not for the Court to say that it would have been preferable for the notice to be given in the circumstances which have now been fully explained and demonstrated to the Court over four days of hearing. That would be with the benefit of hindsight.
28. There is no evidence that the material before the council contained some obvious obscurity or omission of the type referred to by Toohey J in Videto v Minister for Immigration and Ethnic Affairs (1985) 69 ALR 342 at 353, being such that it needed to be resolved before the decision could be made.
29. The plans clearly showed an increase in the roof height which should have led to an assessment of the impact on views. However, for the reasons explained below, an inspection of the locality would not have led, inevitably, to a decision to notify the applicants.
30. The Court agrees with the submission made on behalf of the council by Mr Preston that even if the Court thinks, after having regard to the plans showing an increase in the roof form, that the sounder course for the council might have been to make inquiries, this would not result in a conclusion that the council acted unreasonably in the legal sense in not making those inquiries ( Prasad at 563).
31. The Court has not been led to the view that it is totally implausible that an officer employed by the council of a local government area could make an assessment of property which may be detrimentally affected if development is carried out, based upon maps and a general working knowledge of the area. This is notwithstanding that the Court has accepted the inference raised by Mr Officer during argument that the Duty Officer would have known where the harbour was situated in relation to the land and the local topography. The applicants have the onus of proof to establish otherwise.
32. Although Mr Le Bas might have formed the relevant opinion expressed by him, namely that it was necessary to inspect the locality to observe the physical attributes and the buildings in it, that is not to say that the Court must find that it was totally implausible for the council officer to have done otherwise when nothing is known of the officer’s state of knowledge.
33. The council is entitled to make a wrong decision so long as it was a decision open to it based upon the material before it. The applicants have not shown what that material was in order to allow the Court to make a determination that the decision was manifestly unreasonable.
34. It has often been said that an applicant seeking to prove manifest unreasonableness assumes a weighty responsibility in evidentiary terms. That responsibility has not been discharged to the Court’s satisfaction in the present case.
35. In fact, when reference is made to the documents produced to the Court out of the council’s file, the weight of the evidence is to the contrary.
36. The reports to council on 25 May 1998 and 15 June 1998 followed an assessment of the development application and they identified properties which, had been the subject of notice, responses by objectors, the assessment of physical relationship to other properties, the views and overlooking impact upon adjoining development, adverse impact on the existing streetscape, and the adverse effect on the residential amenity of the surrounding property owners.
37. The first respondent gave evidence that the members of the Works Committee which comprised “approximately 6 or 7 councillors” inspected the subject property.
39. In the present context, the Court finds it useful to quote from the judgment of Menzies J in Parramatta City Council v Pestell (1972) 128 CLR 305 at 323:-38. Section 84 stipulates that the consent authority shall “forthwith” give written notice of the development application, thereby indicating a reasonably close temporal relationship to the date of the receipt of the development application. It is relevant to note however that at no time during the subsequent consideration process is there any evidence that any person associated with the council formed an opinion that the property No. 7 may be detrimentally affected. That this did not happen provides support for the view, accepted by the Court, that the decision not to notify the applicants, as the owners of No. 7 Prior Avenue, was not manifestly unreasonable.
- There is, however, a world of difference between justifiable opinion and sound opinion. The former is one open to a reasonable man; the latter is one that is not merely defensible - it is right. The validity … does not depend upon the soundness of a council’s opinion; it is sufficient if the opinion expressed is one reasonably open to a council. Whether it is sound or not is not a question for decision by a court.
40. The Court is permitted to draw inferences from proven facts. In the present case, the more probable inference about the matters left unexplained by the evidence should be, firstly, that an officer of a local council would have some knowledge of the area under the council’s supervision and control and secondly, that even if the officer had visited the site before issuing any notice, it was not a forgone conclusion that the owners of No. 7 would have been notified.
42. The situation is well summed up by Gibbs J in Buck v Bavone (1975 - 1976) 135 CLR 110 at 118 - 119:-41. The Court is not allowed to substitute suspicion for inference or to reverse the burden of proof or to use intuition instead of ratiocination ( Girlock (Sales) Pty Ltd v Hurrell (1982) 149 CLR 155 at 168 and The Insurance Commissioner v Joyce (1948) 77 CLR 39 at 61).
- … where the matter of which the authority is required to be satisfied is a matter of opinion or policy or taste it may be very difficult to show that it has erred in one of these ways, or that its decision could not reasonably have been reached. In such cases the authority will be left with a very wide discretion which cannot be effectively reviewed by the courts.
43. An examination of s 84(1)(a)(ii) discloses that the consent authority is driven to form its own opinion on a number of matters before deciding whether or not to send a notice. There are issues of practicality, appearance of detrimental effect and enjoyment. They are all based on an opinion that requires a value judgment. Findings of fact as steps in the reasoning process are not reviewable ( Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 340 - 341). It is only a manifestly unreasonable conclusion in respect of an integral matter that causes the ultimate decision to be unreasonable.
44. There is no allegation that the council did not act in good faith or that it has taken irrelevant matters into account. It is merely that, by omitting to visit the site, there was a failure to consider matters that it was required to consider to the extent that the decision reached appears so unreasonable that no reasonable authority could properly have arrived at it.
45. It is for the council to select the criteria for the giving of its opinion and to attribute such weight to those criteria that it considers appropriate ( Peko-Wallsend at 39 - 42).
46. The applicants have not been able to demonstrate what opinion, if any, was reached by the council in regard to the detrimental effect on their property for the purpose of deciding whether to issue a notice.
47. The Court is required to make its determination as to the reasonableness of the council’s decision by reference only to the information which the council had or such other facts that would have been ascertained if a site visit had been undertaken. In the latter context there is no certainty that an inspection of the locality would have had the inevitable consequence of the Duty Officer forming the relevant opinion to notify the applicants for the purposes of s 84(1)(a)(ii). Although some appreciation of views of the harbour may have occurred, the extent of those views is not strikingly obvious from the point of the observer in Prior Avenue itself.
48. Notwithstanding that No. 7 is a two storey building over a garage on a parcel of land which is higher than No. 3, it would not be unreasonable to also take account of the linear distance between the two properties.
49. For the purpose of determining the present issue, the Court is not entitled to take account of the evidence before it in respect of the actual views obtained from No. 7, as there is no case in the circumstances which demands a physical inspection of any properties before making the decision required by s 84.
50. The council officers identified 18 properties to be notified. To that extent at least the duty imposed by s 84(1)(a)(ii) was complied with. In discerning which properties should receive a notice over another the officers were entitled to have regard to such criteria as they considered to be relevant and to form their own opinion as to the weight to be given to each of those matters ( Londish v Knox Grammar School & Ors (1997) 97 LGERA 1 at 8).
51. The Court cannot be satisfied that a proper consideration by the council officer would have led only to the formation of an opinion that the applicants should be notified. It was, in the circumstances, reasonably open to form an opinion that it was not necessary to notify the applicants.
52. Having regard to the whole of the circumstances, the applicants have not established that they were entitled to notification.
53. It is not necessary to canvas the superficially conflicting evidence of Mrs Trowbridge and Mr Cashion to determine whether or not the applicants were otherwise aware of the application for consent, either by reference to a notice affixed to the front gate of No. 3 Prior Avenue or as a consequence of either one of two conversations which took place.
54. In the course of argument, Mr Hale contended that the mere loss of opportunity to make a submission is not sufficient to establish a breach of cl 28 of the LEP to the extent of causing the development consent to be invalid. That, he says, is because a failure to send a notice of advertised development does not have the consequence of depriving an objector of substantive rights of appeal as would be the case in respect of designated development. It simply deprives the consent authority of the opportunity to take into account a particular submission.
55. He makes the further distinction between present circumstances and “the rights of the unknown objector” which has led to the rejection of similar but different submissions in such cases as Proprietors SP 13318 v Lavender View Regency Pty Ltd & Anor (1997) 97 LGERA 337 at 351 and Helman v Byron Shire Council (1995) 87 LGERA 349 at 357 - 358.
56. In the circumstances, Mr Hale says, the Court could not be satisfied that had the applicants been sent a notice, they would have made a submission. Relying on the majority judgment in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 72 ALJR 841 at 860, his argument is that a failure to send a notice to an individual who would not have made a submission is not a breach which the legislature would have intended to invalidate the consent.
57. Setting aside the evidentiary doubt about whether the evidence of the second respondent leads to the last conclusion, the Court has not reached a final view about the distinction Mr Hale seeks to make between designated development and advertised development. It is not readily apparent from the judgments delivered in Scurr v Brisbane City Council (1973) 133 CLR 242 and by Handley JA in Helman at 358 that the right to appeal was a critical criteria for determining the purpose of the legislation in the present context. Despite my disinclination to accept Mr Hale’s submission, I expressly refrain from stating a concluded view as it is not necessary to do so to determine this case.
The SEPP 1 Objection
59. In response to a telephone conversation with the Development Assessment Officer, the first respondent lodged an objection pursuant to SEPP 1 on 5 May 1998. He had been advised that the application did not comply with the two storey height restriction. Notwithstanding the first respondent’s view that the third storey was within the exemption for an attic contained wholly within the roof space where the roof has a maximum pitch of 36 degrees, the objection was made on the following basis:-58. Clause 12 of the LEP prohibits the erection of buildings having more than two storeys within the subject zone.
The attic area shown on the plan is wholly within a roof space where the pitch of the roof does not exceed 36°. Additional dormer windows have been added for light and ventilation.
As the current standards would permit us to rebuild the existing roof (which is in need of major repair), we object to the provisions which do not allow us to use this space.
We therefore submit that in this case the enforcement of this requirement is unreasonable and unnecessary.The proposed attic does not adversely affect the amenity of the surrounding area and provides additional accommodation for an expanding family.
60. The recommendation of the Assessment Officer in his report dated 25 May 1998 was as follows:-
- The SEPP 1 objection is considered reasonable. The proposed development attempts to accommodate the third floor wholly within the roof which has a pitch of 36 degrees and the proposed development is considered to have little impact on the adjoining properties and the front of the dwelling will not appear as a three storey development and as such will not adversely impact on the existing streetscape. The objectives of the control can be maintained whilst allowing the breach of the Council standard. Compliance with the control is considered unreasonable and unnecessary in this instance.
61. Because the council made its determination by merely adopting the report on 15 June 1998, the opinion expressed by the Officer becomes the opinion of the council ( Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363 at 371).
62. The first and second respondents find it difficult to understand why a SEPP 1 objection is required at all.
63. A storey, as defined in the LEP means any floor or part of a floor regardless of use but does not include an attic contained wholly with the roof space where the roof has a maximum pitch of 36 degrees. It has not been shown that the pitch of the relevant part of the roof exceeds 36 degrees. Mr Ledbury asserted that it did not. Although there is a vertical element in the west elevation, where a set of doors open onto a balcony, the Court is satisfied nevertheless that what is proposed at the third level fits within the concept of an attic contemplated by the definition. An attic is generally understood as accommodation more often in the form of a room in the upper most part of a house immediately beneath the roof under the beams of the roof. It was open therefore for the council to proceed to determine the development application without the lodgement of a SEPP 1 objection.
64. It is clear from the report that the council officer asked the right question, namely whether the objective of the development standard could be maintained if the objection was allowed.
65. The applicants’ case appears to be based on the either the lack of or the inaccuracy of the information in relation to roof height provided by the plans and the absence of any other building fronting the western side of Prior Avenue which exceeded the two storey height limit. By stipulating that an attic is not to be regarded as an additional storey, the LEP recognises that the height and shape of the roof are the critical criteria to be taken into account. If the Court accepted that the proposed third floor did not comprise an attic, there is no evidence to discount the basis for the objection, namely that the applicants are seeking to utilise an area of space created within the other specified criteria for development.
66. The exercise of the discretion under SEPP 1 is a distinct exercise of power which arises as a separate step to the consideration of the matters referred to in s 90 of the EPA Act except to the extent that the purpose or object of the development standard is a circumstance of the case ( Jove Industries Pty Ltd v North Sydney Municipal Council unreported NSWLEC 10249 of 1992 14 October 1992 and Lavender View Regency Pty Ltd v North Sydney Council [No. 3] (1997) 95 LGERA 420 at 423).
67. In Proprietors SP13318 v Lavender View Regency Pty Ltd & Anor I set out (at 347) the extent of the Court’s capacity to review the exercise of the council’s discretion to allow a SEPP 1 objection. Applying that test, the Court is satisfied that it was reasonably open for the council to exercise its discretion in favour of allowing the SEPP 1 objection. Therefore the applicants cannot succeed on this issue.
68. As Mr Preston put it, the applicants have failed to establish that the council’s decision has crossed the high threshold of manifest unreasonableness ( Attorney General (NSW) v Quin (1990) 170 CLR 1 at 36; Minister for Urban Affairs and Planning v The Rosemount Estate Pty Ltd (1996) 91 LGERA 31 at 42 - 43; Friends of Hinchinbrook Society v Minister for Environment (1997) 93 LGERA 249 at 277 - 278; see also Brind v Secretary of State for the Home Department [1991] AC 696 at 764 - 766 and R v Secretary of State, ex parte Greenpeace [1994] 4 All ER 352 at 383 - 384).
The Alleged Failure to consider Clause 9 of DCP No. 1
70. DCP No. 1 provides relevantly in cl 9 as follows:-69. Section 90(1)(a)(iv) places a duty upon the council to take into account the provisions of any development control plan in determining a development application.
- Privacy, Sunlight, Daylight &Views
9. The Council shall not consent to a building unless in the opinion of the Council:
…
(3) The building has been designed and sited so as to maintain and, where possible, create views from other buildings or public places;(2) The building has been designed and sited so as to minimise the obstruction of views from surrounding properties and public places;
- …
72. The report to council is unequivocal when, in its conclusion, the following statement is made:-
71. It is not the applicants’ case that there has been a breach of the provisions of the DCP. The issue is whether or not the council failed to consider the provisions by omitting to take any account of the detrimental effect which the proposal would have on the views enjoyed from No. 7 Prior Avenue.
- It is considered that proposal is generally consistent with the aims and objectives of the North Sydney Local Environmental Plan 1989, Development Control Plan No. 1 and Section 90 of the Environmental Planning and Assessment Act.
73. The applicants’ complaint is that the report, and hence the council’s consideration, paid no attention to “views from other buildings or public places” . Mr Officer points to the recurring reference to properties which might be affected as being confined to “adjoining properties” .
74. Mr Preston rightly points out that the absence of a specific reference to cl 9(2) and (3) of the DCP cannot, by itself, be used to found an inference that those subclauses were not considered. There is no requirement for the council to give reasons for its decision ( Public Service Board of NSW v Osmond (1985-1986) 159 CLR 656 at 662).
75. Although the ultimate decision of the council was to adopt the report of the Assessment Officer in its entirety, this was after a deferral of his original report to a meeting of the works inspection committee on-site when it must be inferred that the councillors were able make their own assessment based on personal observation.
76. It has been said many times that councillors do not make decisions in a vacuum. They are entitled to rely on local knowledge and any general knowledge which is relevant to inform them on issues they are required to consider. This appears to be the case, even where the council relies on the inquiry, advice and recommendation of its officers and proceeds to determination by the adoption of a recommendation (see for example Parramatta City Council & Anor v Hale & Ors (1982) 47 LGRA 319 particularly at 346).
77. Once again the applicants have assumed a difficult onus to discharge. The Court is not prepared to hold that the council failed to take into account the provisions of the DCP or in particular that it failed to consider individual clauses. It is assumed that the council is aware of the contents of its own instruments.
78. The decision to adopt the report in regard to the DCP cannot be seen to have such a degree of unreasonableness that it supports an inference the specified clauses of the DCP were not taken into consideration.
Conclusion
79. The applicants have failed to establish that any part of the council’s determination was so unreasonable that no reasonable council could have made it. This finding applies to the issues raised in regard to the requirement to give notice pursuant to s 84, the obligation to consider the provisions of DCP No. 1, and the matters which the council was required to take into account on the determination of the SEPP 1 objection.
80. Ultimately it was only those three issues upon which the applicants relied, although other allegations were made in the pleadings.
81. In the whole of the circumstances, having regard to the totality of the evidence, and after considering submissions made by counsel for each party, the Court has decided that the application will be dismissed.
82. On 10 March 1999, 18 March 1999 and 25 March 1999 Sheahan J made orders restraining the first and second respondents from carrying out demolition of the dwelling house and the erection of alterations and additions with certain specified exceptions. It is now appropriate that those orders be discharged.
83. The parties expressly agree that irrespective of the outcome, the question of costs should be reserved in order to enable the parties to assess their respective positions against each other in the light of these reasons.
84. The formal orders of the Court are:Orders
1. The application is dismissed.
2. Interlocutory orders made by Sheahan J on 10 March 1999, 18 March 1999 and 25 March 1999 are discharged.
4. The exhibits may be returned.3. Costs are reserved.
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