Tuite v Wingecarribee Shire Council (No 2)

[2008] NSWLEC 321

Land and Environment Court

of New South Wales

CITATION:

Tuite v Wingecarribee Shire Council (No 2) [2008] NSWLEC 321

PARTIES:

APPLICANT
Larry Tuite

RESPONDENT
Wingecarribee Shire Council

FILE NUMBER(S):

11272 of 2007

CORAM:

Preston CJ

KEY ISSUES:

Appeal :- s 56A appeal on question of law - misdirection as to test of consistency with zone objectives - findings of fact not supported by any evidence - whether errors of law vitiated ultimate decision

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979

CASES CITED:

Advantageous Promotions Pty Ltd v Woollahra Municipal Council (2005) 140 LGERA 454
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Barmuncol Pty Ltd v Maroochy Shire Council (1983) 50 LGRA 309
Bonim Stanmore Pty Ltd v Marrickville Council [2007] NSWLEC 286
BP Australia Ltd v Campbelltown City Council (1994) 83 LGERA 274
Bruce v Cole (1998) 45 NSWLR 163
Coles v Woollahra Municipal Council (1986) 59 LGRA 133
Coulton v Holcombe (1986) 162 CLR 1
Design Power Associates Pty Ltd v Willoughby City Council (2005) 148 LGERA 233
Guideline Drafting and Design v Marrickville Municipal Council (1988) 64 LGRA 275
Hill v Blacktown City Council (2007) 154 LGERA 418
Leichhardt Municipal Council v Seatainer Terminals Pty Ltd (1981) 48 LGRA 409
Minister Administering the Crown Lands Act v Deerubbin Local Aboriginal Land Council (1998) 43 NSWLR 249
Norkom Pty Ltd v Hunters Hill Municipal Council (unreported, NSWLEC, no 10153 of 1986, 30 September 1986)
O’Brien v Komesaroff (1982) 150 CLR 310
Parramatta City Council v Peterson (1987) 61 LGRA 286
Roads and Traffic Authority of New South Wales v Hurstville City Council (2001) 112 LGERA 223
Roads Corporation v Jolimont Heights Pty Ltd (2002) 125 LGERA 160
Smith v Wyong Shire Council (2003) 132 LGERA 148
Suttor v Gundowda Pty Ltd (1950) 81 CLR 418
The Australian Gas Light Company v The Valuer General (1940) 40 SR (NSW) 126
Tuite v Wingecarribee Shire Council [2008] NSWLEC 1315
University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481
Yates Property Corporation Pty Ltd v Darling Harbour Authority (1991) 24 NSWLR 156

DATES OF HEARING:

5 November 2008

 
DATE OF JUDGMENT: 

12 December 2008

LEGAL REPRESENTATIVES:

APPLICANT
Mr P Tomasetti SC
SOLICITORS
Slade Manwaring

RESPONDENT
Mr C McEwen SC
SOLICITORS
B Bilinsky & Co

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

PRESTON CJ

12 DECEMBER 2008

11272 of 2007

TUITE V WINGECARRIBEE SHIRE COUNCIL
(NO 2)

JUDGMENT

1 HIS HONOUR: The applicant appeals under s 56A of the Land and Environment Court Act 1979 against a decision of a Commissioner of the Court to dismiss the applicant’s appeal under s 97 of the Environmental Planning and Assessment 1979 and to refuse the applicant’s development application for development of a spring water extraction and storage facility and associated buildings and roadworks: Tuite v Wingecarribee Shire Council [2008] NSWLEC 1315 (1 August 2008). An appeal under s 56A is limited to questions of law.

2 The applicant claims that the Commissioner’s decision is vitiated by two categories of error of law:

(a) misdirection as to the test of consistency with zone objectives in clause 9(3) of Wingecarribee Local Environmental Plan 1989 (“the LEP”) in that the Commissioner applied the objectives of the wrong zone under the LEP (see grounds 2(a)–(c) of the Notice of Appeal) and

(b) denial of procedural fairness in that:


(i) the Commissioner construed a condition of a previous development consent without advising the parties or giving them an opportunity to be heard on the proper construction of the condition;

(ii) the Commissioner determined that the proposed buildings were inappropriate as they would be in adverse constraint on the siting of any dwelling on the neighbouring land without giving the parties an opportunity to be heard on this concern or allow the applicant an opportunity to amend the development application to move the proposed structures away from the boundary (ground 2(d)(i)-(iii));

(iii) the Commissioner made adverse findings as to the visual impact the proposed roadworks on Governor’s Road might have on visitors to the area without providing the applicant an opportunity to address on this issue (raised in the applicant’s submissions on the appeal).

Misdirection as to test of consistency with zone objectives

3 The proposed development involved two components on different parcels of land: first, construction of a storage shed, truck turning area, ancillary facilities and staff amenities on the applicant’s land, Lot 1 in DP 307664 (the building works component) and, secondly, roadworks to upgrade Governor’s Road by widening the road formation to five metres, clearing of verge side vegetation and sealing of the widened road formation (the roadworks component). These two parcels of land are zoned differently under the LEP. Lot 1 is zoned 2(a1)-Residential A1. Governor’s Road, however, is zoned 1(a)-Rural A. These two zones have different objectives. This has a consequence for the application of clause 9(3) of the LEP. Clause 9(3) provides:

“Except as otherwise provided by this plan, the council shall not grant consent to the carrying out of development on land to which this plan applies unless the council is of the opinion that the carrying out of the development is consistent with the objectives of the zone within which the development is proposed to be carried out.”

4 The Commissioner considered whether the carrying out of the roadworks on Governor’s Road is consistent with the objectives of the Residential A1 zone, which applied to Lot 1, rather than the objectives of the Rural A zone which applied to Governor’s Road. The Commissioner considered this was necessary because the carrying out of the roadworks on, and the consequential removal of vegetation from, Governor’s Road “is a necessary corollary of” the proposed development on Lot 1 which is in the Residential A1 zone (see paragraph 50 of the judgment).

5 The Commissioner considered the evidence of vegetation removal from Governor’s Road. He found that “virtually all of the vegetation on the road reserve would need to be removed”: paragraph 53 of the judgment. The consequence, the Commissioner found, would be that:

“The nature of Governor’s Road would be significantly and fundamentally altered if the application were to be approved. The meandering country lane – muddy under foot as it was at the time of the inspections – and fringed by vegetation brushing against vehicles traversing it, would be replaced with a gun-barrel straight, hard surface and well drained properly formed road – covering virtually the full width of the road reserve. There is no realistic opportunity for any significant landscaping to be installed in the road reserve if Governor’s Road is reconstructed as proposed”: paragraph 54 of the judgment.

6 The Commissioner concluded that:

“This change, if permitted, would be not merely an adverse effect on both the landscape and scenic quality of the area but these adverse effects would be, in my view, significant ones. As a consequence, I cannot be satisfied, as required by cl 9(3) of the LEP, that the carrying out of the development is consistent with the objectives of the Residential “A1” zone. The application therefore must be refused on this basis”: paragraph 55.

7 The Commissioner then went on in the same paragraph to hold that:

“If I am wrong on the basis of consideration, I am separately satisfied that the changes proposed are sufficiently visually adversely impacting on users of the land (both resident and visitor) to be unacceptable”: paragraph 55.

8 The applicant submits that the Commissioner erred in law in his evaluation, for the purposes of cl 9(3) of the LEP, of the roadworks component of the development on Governor’s Road against the objectives of the Residential A1 zone that applied to the adjoining land, Lot 1, rather than the objectives of the Rural A zone that applied to Governor’s Road.

9 The applicant submits that such an error of law was material. The materiality flows, firstly, from the fact that satisfaction of the test of consistency in cl 9(3) is a precondition to the exercise of the power to grant development consent. This was recognised by the Commissioner by his use of the word “must” by stating that, because of his non satisfaction with the test of consistency in cl 9(3) of the LEP, the application “must be refused”.

10 Secondly, the applicant submits the materiality of the error is shown by the Commissioner’s later statement in paragraph 163 of the judgment of:

“I have concluded that there is only single reason [sic] which is determinative and requires refusal of the application. That impact is that which would flow from the change in nature of Governor’s Road [as described at (54)]”: paragraph 163 of the judgment.

11 The applicant submits that this reveals that the Commissioner’s conclusion of non satisfaction with the test of consistency in cl 9(3) was determinative of the appeal and hence the error was material.

12 Thirdly, the applicant submits that the Commissioner’s last sentence of paragraph 55 of the judgment was not, in fact, making a separate point, but rather “he was continuing to apply the second objective of the Residential A1 zone in considering the impact of the upgrading of the road. The visual impact of users of the lane (both resident and visitor) must be a reference in part to the second objective of the Residential A1 zone where it refers to the amenity enjoyed by residents, located within the area (paragraph 29 of the applicant’s written submissions, and see also paragraph 16 of the applicant’s reply submissions).

13 The respondent submits that the Commissioner addressed the test of consistency of the roadworks component by reference to the objectives of the Residential A1 zone because that was an issue raised by the council in its Further Amended Statement of Contentions, dated 19 March 2008. Contention 5 asserted that the proposed roadworks “could result in removal of all of the existing vegetation within Governor’s Road and impacts on vegetation within the vicinity of Governor’s Road”. One of the consequences, the council contended, was that:

“(b) if all or a significant amount of the vegetation in Governor’s Road is removed as a result of the proposed roadworks then development consent cannot be granted as the development is not consistent with objective (b) of the 2 (a1) zone which is:

‘to ensure that any development will not have an adverse effect on the landscape or scenic quality of the area or the amenity enjoyed by residents located within the area’”:

Contention 5(b) of the Further Amended Statement of Contentions dated 19 March 2008.

14 The council notes that the applicant did not contend, at the hearing of the appeal before the Commissioner or at any other time before first being raised as a ground on this s 56A appeal, that it would be an error of law for the Commissioner to evaluate the consistency of the proposed development against the objectives of the Residential A1 zone. The council did not, however, submit that the applicant should not now be allowed to raise the point because it did not raise it at the hearing before the Commissioner. The question of whether the applicant should be allowed to raise the point for the first time on the s 56A appeal was instead raised by me in the course of submissions on the hearing of the s 56A appeal.

15 In any event, the council submits that the development for which consent was sought and which was the subject of the appeal before the Commissioner, comprised both the building works component on Lot 1 and the roadworks component on Governor’s Road. Both components needed to be evaluated against the objectives of each of the zones in which the development was proposed to be carried out. Hence, the roadworks component needed to be evaluated against the objectives of both the Rural A zone and the Residential 2(a1) zone. As the council did not contend that the roadworks component was inconsistent with the objectives of the Rural A zone, as a practical matter, it was only necessary for the Commissioner to consider the council’s contention, raised in contention 5(b), that the roadworks component was not consistent with objective (b) of the Residential 2(a1) zone. This the Commissioner did.

16 However, even if it were to be an error of law to address the test of consistency of the roadworks component against the objectives of the Residential 2(a1) zone, the council contends that such error was not material and the Commissioner’s judgment could be sustained by his alternative finding in the last sentence of paragraph 55 of the judgment. The council submits that this alternative finding addresses contention 6 raised by the council in its Further Amended Statement of Contentions dated 19 March 2008. Contention 6 stated:

“The clearing of all or a significant amount of vegetation in Governor’s Street is not in the public interest.”

17 The council explained the background to this contention. The contention was added by the council after the view on the first day of the hearing, on 13 March 2008. The minutes of the site view, which were tendered in evidence, record that the Commissioner raised the matter of trees to be removed on the road reserve. Senior Counsel for the applicant indicated that it had not been raised by the council and, if it was being raised now, the applicant would endeavour to attend to it. The Commissioner stated that s 79C of the Environmental Planning and Assessment Act 1979 arises for consideration.

18 On the next day of the hearing, 14 March 2008, Senior Counsel for the applicant advised the Commissioner that the applicant had engaged an arborist to assess the trees in Governor’s Street to address the significance of the trees to be removed. The applicant anticipated that the council might amend its issues to raise this issue and also call evidence of an arborist to address the issue. The further hearing of the appeal was adjourned by the Commissioner to 23 April 2008.

19 In the meantime, the council amended its Statement of Contentions to be in the form of the Further Amended Statement of Contentions, dated 19 April 2008, in order to address the consequences of removal of vegetation in Governor’s Road. The first amendment was in contention 5(b), that the removal of vegetation by reason of the roadworks in Governor’s Road would be inconsistent with the objectives of the Residential 2(a1) zone and the second amendment was in contention 6, that the removal of vegetation was not in the public interest.

20 Also in the intervening period, the council and the applicant each engaged arborists who conferred and produced a joint report. The joint report of the arborist was tendered at the resumption on 23 April 2008. The two arborists, Mr D’Hondt and Ms Hopwood, were called to give evidence on that day.

21 In submission at the conclusion of the hearing before the Commissioner, Senior Counsel for the applicant made submissions in relation to the arborists’ evidence concerning the potential impact of the development on trees not removed by the roadworks and the applicant’s offer of compensatory planting for the vegetation removed. Counsel for the council identified at the outset of his submissions that only three issues remained: contention 5(a)(iii) concerning the impact on Jackman’s Cottage from clearing of vegetation for the roadworks on Governor’s Road, contention 5(b) concerning compliance with the zone objectives and contention 6 concerning clearing of the vegetation being not in the public interest. Counsel for the council made submissions on each of these contentions consecutively. After dealing with contention 5(b) concerning zone objectives, and contention 5(a)(ii) concerning Jackman’s Cottage, counsel for the council addressed contention 6 and submitted:

“all the Council is asking you to do there is to, if you don’t accept the submission in relation to the zone objectives, then to take it to the broader level because the Council accepts that what you’re doing is a balancing of the various interests and to consider the impact in terms of, under 79C, the impact on the natural environment and the public interest.”

22 In reply, Senior Counsel for the applicant submitted that if the Commissioner thought that some trees might be affected, he could impose of his own volition conditions regarding replacement planting of the trees.

23 Based on this background, the council submits, it is evident that the Commissioner’s discussion in the judgment of the impacts of the roadworks on trees in and adjacent to Governor’s Road addressed both of the council’s contentions, namely, contention 5(b) concerning removal of vegetation being inconsistent with the zone objectives, and contention 6 concerning removal of vegetation being not in the public interest. The council submits that paragraphs 48-55 of the Commissioner’s judgment addressed the issue raised by the council in contention 5(b). However, the council submits, the last sentence of paragraph 55 is the Commissioner’s conclusion in relation to the issue raised by the council in contention 6. That conclusion, in the last sentence in paragraph 55, is discrete from the conclusion in the preceding sentences of paragraph 55 relating to inconsistency with zone objectives. This is made plain by the words in the last sentence of paragraph 55 “if I am wrong on the basis of consideration” which, the council submits, must refer to the basis of consideration discussed up to that point, which basis concerned the issue of inconsistency with the zone objectives. Having distinguished that basis of consideration the Commissioner stated, “I am separately satisfied”. The council submits this refers to a separate basis of consideration. That separate basis is stated to be “that the changes proposed are sufficiently visually adversely impacting on users of the lane (both resident and visitor) to be unacceptable”. The council submits that this can only refer to the issue raised in contention 6.

24 Hence, the council submits, the Commissioner’s decision to refuse the development application is independently supported by this conclusion (concerning contention 6) and any error of law relating to the previous conclusion (concerning contention 5(b)) is not vitiating.

25 At the outset, I need to determine whether the applicant should be allowed to raise this point on this s 56A appeal. The applicant did not raise any objection as to the permissibility of the approach of evaluating the test of consistency of the roadworks component against the objectives of the Residential A1 zone at the time the issue was raised by the council by adding contention 5(b). The undesirability for the administration of justice of an appellant raising a question of law on an appeal not raised during the hearing has been repeatedly stated: see, by the High Court, in University of Wollongong v Metwally(No 2) (1985) 59 ALJR 481 at 481-483; Coulton v Holcombe (1986) 162 CLR 1 at 7-8 and, by this Court, in relation to s 56A appeals, in Norkom Pty Ltd v Hunters Hill Municipal Council, (unreported, NSWLEC, no 10153 of 1986, 30 September 1986, Cripps CJ, pp 7-8); Parramatta City Council v Peterson (1987) 61 LGRA 286 at 288-289; and Design Power Associates Pty Ltd v Willoughby City Council (2005) 148 LGERA 233 at 244 [40], 246 [51]-[52].

26 However, in this case, I consider the appellant ought to be allowed to raise the point for two reasons. First, no objection was raised by the respondent. Secondly, the question is one of construction of cl 9(3) of the LEP in light of uncontested facts as to the zoning of the two parcels of land on which the development was proposed to be carried out. In O’Brien v Komesaroff (1982) 150 CLR 310 at 319, the High Court noted that:

“In some cases when a question of law is raised for the first time in the ultimate court of appeal, as for example upon the construction of a document, or upon facts either admitted or proved beyond controversy, it is expedient in the interests of justice that the question should be argued and decided”.

27 In Coulton v Holcombe (1986) 162 CLR 1 at 8 the majority of the High Court held that no distinction is to be drawn in the application of these principles in an intermediate court of appeal and an ultimate court of appeal.

28 The new point to be raised by the applicant is not of the kind referred to in Suttor v Gundowda Pty Ltd (1950) 81 CLR 418 at 438, where the High Court stated: “where a point is not taken in the court below and evidence could have been given there which by any possibility could have prevented the point from succeeding, it cannot be taken afterwards”: see also O’Brien v Komesaroff (1982) 150 CLR 310 at 319 and Coulton v Holcombe (1986) 162 CLR 1 at 7 – 8.

29 I note appellate courts have allowed new points to be raised on appeals against decisions of planning courts and tribunals where the point is one of construction and all facts necessary to determine the point were beyond controversy: see, for example, Roads Corporation v Jolimont Heights Pty Ltd (2002) 125 LGERA 160 at 168 [19]; Smith v Wyong Shire Council (2003) 132 LGERA 148 at 168 [103]; Advantageous Promotions Pty Ltd v Woollahra Municipal Council (2005) 140 LGERA 454 at 458 [15]; Hill v Blacktown City Council (2007) 154 LGERA 418 at 426 [20]-427 [21].

30 In my opinion, the Commissioner did err by evaluating the test of consistency of the roadworks component of the development on Governor’s Road, which was zoned Rural A, against the zone objectives of the Residential A1 zone, which applied to the adjoining land, Lot 1. Where a development is carried out on land in two or more zones, for the purpose of evaluating the test of consistency with zone objectives, there needs to be a matching of the component of the development with the objectives of the zone in which that component is proposed to be carried out. In this case, this meant that the building works component on Lot 1, which was zoned Residential A1, needed to be evaluated, for the purposes of the test of consistency in clause 9(3) of the LEP, against the objectives of the Residential A1 zone, whilst the roadworks components on Governor’s Road, which was zoned Rural A, needed to be evaluated against the objectives of the Rural A zone.

31 The Commissioner did not do this in this case. The Commissioner evaluated the roadworks component of the development, not against the objectives of the zone in which that component was proposed to be carried out, namely Rural A zone, but against the Residential A1 zone within which the building works component of the development was proposed to be carried out. The Commissioner also did not evaluate whether the building works component was consistent with the objectives of the Residential A1 zone within which it was proposed to be carried out.

32 I therefore consider that the Commissioner erred in law in determining the test of consistency in cl 9(3) of the LEP.

33 However, it is well settled that it is not sufficient to establish merely that the decision under appeal discloses an error of law; that error must be of such significance as to vitiate the ultimate decision: Leichhardt Municipal Council v Seatainer Terminals Pty Ltd (1981) 48 LGRA 409 at 419; Barmuncol Pty Ltd v Maroochy Shire Council (1983) 50 LGRA 309 at 314: Coles v Woollahra Municipal Council (1986) 59 LGRA 133 at 140; Guideline Drafting and Design v Marrickville Municipal Council (1988) 64 LGRA 275 at 280; Yates Property Corporation Pty Ltd v Darling Harbour Authority (1991) 24 NSWLR 156 at 177; Minister Administering the Crown Lands Act v Deerubbin Local Aboriginal Land Council (1998) 43 NSWLR 249 at 254-255; Roads and Traffic Authority of New South Wales v Hurstville City Council (2001) 112 LGERA 223 at 229 [25].

34 Where a decision is given on a number of alternate findings, it will not be sufficient to establish that one or some only of the alternate findings involved errors of law, if one alternative involved no error of law: Leichhardt Municipal Council v Seatainer Terminals Pty Ltd (1981) 48 LGRA 409 at 419 and Yates Property Corporation Pty Ltd v Darling Harbour Authority (1991) 24 NSWLR 156 at 177.

35 In this case, the Commissioner’s decision is based on two sets of findings. The first is the basis of non-satisfaction of the test of consistency in cl 9(3) of the LEP. This basis is later described by the Commissioner as being “determinative” by itself and requiring refusal of the application. The second set of findings relates to five types of impacts caused by the proposed development which the Commissioner found to be unacceptable. These five types of unacceptable impacts are summarised in paragraph 162 of the judgment.

36 One of these five impacts is “the removal of vegetation from Governor’s Road”. This is a factual finding and refers to the conclusion the Commissioner expressed in the last sentence of paragraph 55 of the judgment (which in turn is based on the factual findings in paragraphs 53 and 54). It is a merit-based finding concerning the impact of removal of vegetation from Governor’s Road independent of the power-based finding in the sentences preceding the last sentence of paragraph 55.

37 The Commissioner refers to the five types of unacceptable impacts as “non-determinative” (see paragraph 165), but only in the sense that each impact individually, and not taken in combination with any other unacceptable impact, would not be determinative and require refusal of the application. However, the Commissioner found that the five types of unacceptable impacts, “when taken in combination, separately lead to the application being unacceptable” (paragraph 164).

38 Hence, the Commissioner’s decision to refuse the development application is based on alternate findings:

(a) non-satisfaction of the test of consistency in cl 9(3) of the LEP, or

(b) the five types of unacceptable impacts taken in combination.

39 I have found that the Commissioner’s finding of non-satisfaction of the test of consistency in cl 9(3) of the LEP is affected by an error of law. However, that error will not vitiate the ultimate decision if the Commissioner’s alternate finding (that the five types of unacceptable impacts, taken on combination, make the proposal unacceptable) involves no error of law.

40 Apart from the impact of the removal of vegetation from Governor’s Road, another one of the fives types of unacceptable impacts found by the Commissioner is the adverse impact of the proposed development on the development potential of the neighbouring property owned by the Millers. The applicant also challenges this finding as involving an error of law on the ground that the Commissioner’s factual findings are not supported by any evidence and the applicant was denied an opportunity to be heard on the findings made by the Commissioner. For reasons I give below, I find that the Commissioner’s findings in relation to the unacceptable impact on the development potential of the Millers’ property does involve an error of law; that finding of unacceptable impact is stated to be more significant than the other impacts comprising the five types of unacceptable impacts; and that the error in that finding vitiates the Commissioner’s alternate finding that the five adverse impacts, taken in combination, justify the application being refused.

41 Accordingly, the error of law in the finding of non-satisfaction of the test of consistency in cl 9(3) of the LEP is material; there is no alternate finding supporting the ultimate decision of the Commissioner that does not involve an error of law. The appeal should be upheld on this ground.

Denial of procedural fairness

42 The applicant submits that he was denied procedural fairness in respect of a number of findings made by the Commissioner in his judgment in relation to:

(a) the construction of condition 6(b) of a development consent granted by the council in 1995 for the use of Lot 1, which condition required upgrading of the road pavement surface on Governor’s Road;

(b) the impact the proposed buildings on Lot 1 might have on the future development potential of the adjoining property owned by Mr Miller; and

(c) the visual impact the roadworks might have on visitors to the area.

43 The applicant submits, in relation to the first finding, that the Commissioner erred in construing condition 6(b) of the 1995 consent and did not afford the parties an opportunity to address the Commissioner on the proper construction of the condition.

44 The applicant submits, in relation to the second finding that the Commissioner made wrong findings of fact, not based on the evidence, and did not afford the parties an opportunity to be heard in relation to these findings.

45 The applicant submits, in relation to the third finding, that the impact of the roadworks on visitors was not an issue identified by the parties and that the applicant was denied an opportunity to address the Commissioner on this issue.

46 The council accepts that the Commissioner erred in his construction of condition 6(b) of the 1995 consent and that the Commissioner also erred in his factual findings as to the size and location of the proposed buildings and proposed landscaping. However, the council submits that such errors are not material and do not vitiate the Commissioner’s decision.

47 The council submits that the issue of the impact of removal of vegetation on users of the road, was, however, squarely raised as an issue, being raised by the council’s contention 6. Users of the road necessarily include residents and visitors. There was evidence adduced by objectors as to use of the road by persons other than residents. The applicant had an opportunity to address the issue. Accordingly, the council submits that there was no denial of procedural fairness in relation to this issue.

Misconstruction of condition 6(b) of the 1995 consent

48 In relation to the first respect, it is common ground between the parties, that the Commissioner erred in his construction of condition 6(b) of the 1995 consent. Condition 6 provided:

“6. The provision, by the applicant, at the applicant’s expense, [for] the following works and services in accordance with Council’s Engineering Standards, to the satisfaction of the Director, Environment & Planning and Shire Engineer. Plans and specifications are to be submitted by the applicant and approved prior to the commencement of spring water extraction. …

(b) The applicant shall reconstruct the road pavement surface of Governor’s Road from its commencement at the intersection of Church Street to its termination at Lot 1 DP 307564. This work shall involve the re-surfacing of Governor’s Road with a two coat bitumen seal for a width of 4.0 metres plus 1.0 m wide gravel shoulders to extend from Church Street to the western boundary of Lot 14. Further the wattle tree on the South East junction of Governor’s Road and Church Street shall be removed, to improve sight distance.”

49 The first sentence of paragraph (b) of condition 6 imposes the requirement to construct the road pavement surface of Governor’s Road from its commencement at the intersection of Church Street until its termination at Lot 1 DP 307564. The second sentence of paragraph (b) provides a particular specification for the road pavement surface (namely, a two coat bitumen seal for a width of 4.0 m plus 1.0 m wide gravel shoulders) for part of the length of Governor’s Road (namely, from Church Street to the western boundary of Lot 14). Governor’s Road continues past the western boundary of Lot 14 to its termination at Lot 1. No specification was provided in condition 6(b) for that part of Governor’s Road. However, the road pavement surface for that part of Governor’s Road was still required to be reconstructed by dint of the first sentence of condition 6(b).

50 The Commissioner, however, interpreted the second sentence of paragraph (b) as qualifying the first sentence of paragraph (b), so that the requirement to reconstruct the road surface became limited to only that part of Governor’s Road described in the second sentence of paragraph (b). That construction was in error.

51 However, such an error was not material to the Commissioner’s decision for three reasons.

52 First, as a matter of fact, the Commissioner’s construction of condition 6(b) of the 1995 consent did not influence the Commissioner’s findings in relation to the removal of vegetation from Governor’s Road, the consequences of such removal of vegetation or its acceptability. Although the Commissioner assayed the task of construing condition 6 of the 1995 consent because the applicant had considered that it may be relevant to consider the extent to which the presently proposed removal of vegetation is greater than that envisaged by the 1995 consent (see paragraph 67 of the judgment), the Commissioner in the end did not consider “that there is any basis upon which the 1995 consent conditions could be used to set aside the valid and otherwise insurmountable concerns which I consider presently exist concerning the removal of vegetation in the Governor’s Road reserve and the impact on vegetation on adjacent properties”: paragraph 72 of the judgment. It is true that this conclusion was affected by the Commissioner’s construction of condition 6 of the 1995 consent, but nevertheless the fact remains that that construction was not used by the Commissioner to set aside his consideration of the removal of vegetation from Governor’s Road, its consequences or its acceptability.

53 Secondly, the precise extent of removal of vegetation from Governor’s Road was not ascertainable unless and until the applicant provided plans and specifications for the upgrading of the road pavement surface to the council and the council approved those plans and specifications. Whilst the plans and specifications would need to include resurfacing with a two coat bitumen seal for a width of 4.0 m plus 1.0 m wide gravel shoulders for the length from Church Street to the western boundary of Lot 14, there was no specification of what would be involved to reconstruct the road pavement surface for the balance of the length of Governor’s Road to its termination at Lot 1 DP 307564.

54 As a matter of fact, the applicant had not provided any such plans or specifications pursuant to the 1995 consent and the council had not approved any plans or specifications for reconstruction of the road pavement surface of Governor’s Road. The precise impact of roadworks on vegetation in Governor’s Road had not been ascertained and was not ascertainable unless and until such plans and specifications were provided and approved. There was also no evidence as to how many or what trees or other vegetation would be affected by such roadworks. Hence, the comparison of the presently proposed extent of removal of vegetation with that which would occur under the 1995 consent, which comparison was sought to be undertaken by the Commissioner, in fact could not be undertaken in any event.

55 Thirdly, the obligation on the Commissioner was to determine the particular development application before the Court. The task involved assessing the impacts of the development proposed on the environment existing at the time of determination of the application. As noted, no work to reconstruct Governor’s Road had been carried out pursuant to the 1995 consent. Hence, the vegetation in Governor’s Road remained untouched. Consideration of the impact of the roadworks proposed in the current development application before the Court required the Commissioner to consider the existing vegetation in Governor’s Road and the impacts that carrying out the roadworks would have on this existing vegetation. This task was in fact undertaken by the Commissioner.

56 With respect to the Commissioner, it was difficult to see how the Commissioner could have used the 1995 consent conditions, which had not been implemented, to set aside his findings as to the impact of the development proposed in the development application before the Court. The Commissioner, exercising the functions of the consent authority, found that the impacts of the proposed development are unacceptable and the development application should be refused. He could not come to a contrary conclusion because a previous development consent would, if implemented, lead to the same or similar impact. As Mahoney JA stated in BP Australia Ltd v Campbelltown City Council (1994) 83 LGERA 274 at 279:

“Ordinarily, it would not be right for such a body [a consent authority] to conclude that the effect of the relevant considerations is that one thing should be done and yet, without more, to do another. The grant of a discretion is the grant of the authority to do what the authority sees as the discretionary considerations to warrant being done.”

57 Hence, even if the Commissioner had properly construed condition 6(b) of the 1995 consent, such proper construction could not have been used by the Commissioner to alter his conclusion that the effect of the relevant considerations concerning the impact of the proposed roadworks on Governor’s Road was unacceptable and that the application should be refused.

58 Any error in construing condition 6(b) of the 1995 consent was, therefore, not vitiating.

No evidence supporting findings of fact

59 I turn to the second respect relied on by the applicant concerning the Commissioner’s findings regarding the impact of the proposed buildings on the future development of the property owned by Mr Miller. The Commissioner stated that it was:

“appropriate to consider whether or not, in the context of this semi-rural setting with development potential available (and, on the evidence of Mr Miller, proposed to be availed of), it is reasonable to permit the erection of a quasi-industrial structure, the size of a very large rural shed, almost on the boundary with the adjacent property when there is no evidence as to why (apart from mere convenience) it could not be located elsewhere on the site”: paragraph 149 of the judgment.

60 Earlier in the judgment, the Commissioner described the present proposal as including the erection of a Colorbond shed which “is to be some 18 m long, 6 m wide and 9 m high and will replace the present shed on the site”: paragraph 18.

The Commissioner continued:

“The new shed would be located adjacent and parallel to and set back some 1800 mm from the boundary with the adjacent property to the west which is owned by the Millers. No landscaping of any significance is proposed (or possible) in this setback”.

61 Having thus described the proposal, the Commissioner repeated his findings in the context of his assessment of the impact of the proposed shed on the development potential of the Millers’ land. The Commissioner stated:

“Given the very small side setback (1800 mm) proposed to the boundary with the Miller’s property and the height (9 m) and length (18m) of the proposed shed, there is no functional prospect of any screening landscaping being erected on the applicant’s property to soften the presentation of this structure to the neighbouring property to the west”: paragraph 150 of the judgment.

62 Based on these findings, the Commissioner found that “the present proposal is a very poor planning and design outcome” (paragraph 151 of the judgment) and that “the location of the proposed structures is inappropriate as they will create an adverse constraint on siting any dwelling which might be erected, in future and post subdivision, on the southern element of the Millers’ property fronting Governor’s Road” (paragraph 152 of the judgment). The Commissioner concluded that the proposed structures therefore imposed “a significant constraint on the development potential of the Millers’ land and does so unnecessarily” (paragraph 153 of the judgment).

63 Neither the applicant nor the council were able to identify the evidentiary source of the findings made by the Commissioner as to the size, location or potential for landscaping of the shed. Indeed, the facts found by the Commissioner are contrary to the evidence in the plans comprising the development application which were before the Court and were attached to the Class 1 application.

64 The true position is shown on the plans of the proposed structures tendered as Exhibit “B” in the appeal before the Commissioner. Those plans show that the common boundary between Lot 1 (the development site) and the Millers’ property to the west runs north-south. The proposed shed is shown as being orientated with its length running north-east to south-west, that is skewed to the common boundary, and not “parallel to” the boundary as found by the Commissioner: see paragraph 19. The south western corner of the building is labelled on the plans with a dimension of 3 m from the common boundary. Because of the skewed orientation of the shed to the boundary, the setback of the shed from the boundary increases as it runs from south to north. The north-western point of the shed scales at approximately 12 m from the common boundary. Accordingly, the setback of the shed ranges from 3 m to 12 m. This is quite different to the Commissioner’s finding of a “very small side setback (1800 mm)”: see paragraph 150 and also paragraph 19 of the judgment.

65 The dimensions of the shed are shown on the plan to be 18 m long (the same length as found by the Commissioner in paragraph 150) and 12 m wide (double the width found by the Commissioner of 6 m wide in paragraph 18 of the judgment). The height of the shed is shown on the elevations. The south-west elevation, which would be the view from the Millers’ property to the west, shows a building height of 8.25 m from the floor level to the apex of the roof, with the floor level being up to a further 2 m above ground level, giving a maximum height of 10.25 m. This is in contrast to the Commissioner’s finding of a height of 9 m: see paragraph 150 of the judgment.

66 The plans also expressly show proposed landscaping around the shed. Using the typical symbol of a canopy of a tree, which is shaded to indicate new landscaping, the plan shows new native vegetation proposed to be planted as a screen. The legend describes these symbols as “new native screen planting”. Four symbols are shown along the common boundary for the length of the shed, from its southern extremity to the northern extremity. On one of the symbols, an arrow is drawn stating, “new native screen planting”. Symbols indicating other native screen planting occur to the north of the building, then to the north east, together forming a continuous arc purportedly screening the new building from view from the Millers’ property to the west. This is to be contrasted with the Commissioner’s findings that “No landscaping of any significance is proposed (or possible) in this setback” (paragraph 19 of judgment) and “there is no functional prospect of any screening landscaping being erected on the applicant’s property to soften the presentation of this structure to the neighbouring property to the west” (paragraph 150 of the judgment).

67 The findings of the Commissioner as to size, location and landscaping of the shed are so at variance with the plans the subject of the application and the appeal, on so many aspects, that the Commissioner must have considered a different plan for the development. However, the parties have been unable to identify what plan the Commissioner considered.

68 The Commissioner does in paragraph 134 refer to the notes of Mr Miller’s evidence given on site on the first day of the hearing. These notes record Mr Miller’s assertion that “The new shed 18 m x 8.25 m is within 3 metres of his boundary …”. As I have noted, the plans of the shed tendered in evidence show the length of the shed to be 18 m as stated by Mr Miller but the width to be 12 m not 8.25 m. The height of the building is 8.25 m from the floor to the apex of the roof (although there is up to a further 2 m between the ground level and the floor level).

69 The Commissioner also refers to Mr Millers’ written objection, which was part of Exhibit 9, in paragraphs 135-138, 146 of the judgment. I note that the Commissioner states in paragraph 146 that the date of the Millers’ written objection is 14 November 2007 although the Millers’ letter tendered in evidence on the s 56A appeal as being the Millers’ letter of objection bears a date of 5 November 2007 and a date stamp of receival by the Council of 6 November 2007. Whether there were two letters or the Commissioner has made a typographical error was not established. In any event, the matters objected to, and the statements quoted by the Commissioner in paragraph 146, are to be found in the Millers’ letter of 5 November 2007.

70 The Millers’ letter stated, under the heading of “Objection 2”:

“The application states that the proposed development ‘will not be visually prominent within the existing landscape’.

• To state that a ‘shed’ of Colorbond construction measuring 18000 mm x 12000 mm with a height of approximately 8250 mm will not be visually prominent is quite ludicrous. We also find it strange that the term ‘shed’ has been used to describe what is clearly a proposed ‘industrial building’.”

71 Under the heading of “Objection 3”, the Millers’ letter stated:

“The application states that ‘the corner of the shed will be approximately 1600 mm from our boundary’.

• A shed measuring 18000 mm in length with a height of approximately 8250 mm, positioned only 1600 mm from our boundary it totally unacceptable to us’.”

72 The Millers’ statements of the length of the shed being 18 m and its width being 12 m accord with the plans. The stated height of 8.25 m is also correct for the height from the floor to the roof, although there would be seen up to a further 2 m from the ground to the floor in certain elevations. The Millers’ statement that the corner of the shed is 1600 mm from the boundary is incorrect. The nearest corner of the building is shown on the plans with a dimensioned distance of 3 m, and the setback increases up to approximately 12 m.

73 The Commissioner’s findings in paragraph 19 and 150 do not accord with Mr Millers’ statements, except for the length of the building. Mr Miller stated a setback of 1600 mm, the Commissioner 1800 mm; Mr Miller stated a width of 12 m, the Commissioner 6 m; Mr Miller stated a height of 8.25m, the Commissioner 9 m.

74 Clearly, the source of the Commissioner’s findings as to the location and landscaping cannot have been Mr Miller’s objection, although the Commissioner was persuaded by Mr Millers’ argument that the shed would impact adversely on the development potential of his land.

75 In these circumstances, the Commissioner’s findings are not capable of being supported by the evidence advanced at the hearing.

76 Finding facts for which there is no evidence (as contrasted with finding facts for which there is some evidence) involves an error of law: The Australian Gas Light Company v The Valuer General (1940) 40 SR (NSW) 126 at 138; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355; Bruce v Cole (1998) 45 NSWLR 163 at 188; Bonim Stanmore Pty Ltd v Marrickville Council [2007] NSWLEC 286 (25 May 2007) at [44]. Accordingly, the Commissioner erred in law in making findings of fact as to the size, location and potential for landscaping of the proposed shed on Lot 1, where there was no evidence capable of justifying those findings.

77 The council submits, however, that the error was not material. The council accepted that the erroneous findings did lead to the Commissioner’s conclusion that the proposed development would create a significant constraint on the development potential of the Millers’ land. However, the Commissioner stated that such an impact was not determinative. He stated:

“I do not consider that this impact is determinative and do not refuse the application on this basis alone. It is, however, nonetheless a matter which, on my assessment, goes close to warranting refusal itself”: paragraph 154 of the judgment.

78 One difficulty with this submission of the council is that the impact on the development potential of the Millers’ property is identified by the Commissioner in the conclusion of the judgment (see paragraph 162) as one of five unacceptable impacts which, when taken in combination, led to the Commissioner concluding that the application was unacceptable. Moreover, the relative contribution of the unacceptable impact on the development potential of the Millers’ property is identified by the Commissioner as being more significant than the other unacceptable impacts. This is evident from two statements of the Commissioner. First, the Commissioner stated in paragraph 154 that the impact of the proposed shed on the development potential of the Millers’ property goes “close to warranting refusal itself”. Secondly, the Commissioner’s own assessment of the relative significance of the five unacceptable impacts that he had identified at paragraph 162 is as follows:

“I should make it clear that, of the non-determinative impacts, the impact on the Millers’ property is more significant than the other impacts. If the impact on the Millers’ property were to be eliminated (by the relocation of the proposed structures to an appropriate location on the applicant’s property where sufficient landscaping could be provided), the totality of these other impacts, when taken together, would not warrant refusal of the application”: paragraph 165 of the judgment.

79 In light of this assessment by the Commissioner of the relative significance of his findings of the proposed shed’s unacceptable impact on the development potential of the Millers’ property, I cannot agree with the council’s submission that the error of law in relation to this finding is not material to the Commissioner’s decision. Accordingly, the appeal should be upheld on this ground.

Opportunity to address issue of impact on visitors

80 Finally, I turn to the third respect relied upon by the applicant concerning the Commissioner’s finding that the removal of vegetation from Governor’s Road would have an adverse visual effect for users of the road.

81 I have earlier set out the background to the council raising as an issue that the removal of vegetation from Governor’s Road is not in the public interest (contention 6). The council tendered bundles of documents which included letters of objection to the proposal. The letters of objection referred to the use of Governor’s Road, including for bushwalking, and the adverse impact removal of vegetation would have on this use (see, for example, letters of the Rundle family (Exhibit 1, Vol 2, p 64) and Mr and Mrs Simeoni (Exhibit 1, Vol 2, p 77). The council also called evidence from a number of objectors on the appeal. The objectors referred to the use of Governor’s Road and the adverse visual impact that removal of vegetation would have on the use and enjoyment of the road by both residents and other users. Evidence of this nature from objectors is recorded in the minutes of the on site hearing on 13 March 2008, including from Mr Clark, Mr Grennan, Mr Stanton and Councillor King and of Mr Simeoni and Ms Henderson, co-owner and occupant respectively of Jackman’s Cottage on Governor’s Road. The Commissioner noted in his judgment that “during the course of the objectors’ evidence, comment was made about people walking along Governor’s Road as part of local bushwalking activities (paragraph 51).

82 As I have noted earlier, during the course of the objectors’ evidence, the Commissioner raised the issue of the impact of vegetation removal under s 79C of the Environmental Planning and Assessment Act 1979. That led to the applicant advising that it would obtain evidence from an arborist to address issues raised by the objectors in relation to the impact of vegetation removal from Governor’s Road. That evidence was subsequently obtained. The council amended its Statement of Contentions to raise contention 6 which addressed the objectors’ concerns as to the impact of vegetation removal from Governor’s Road.

83 In the course of submissions on 23 April 2008, counsel for the council referred to the evidence of the objectors, saying “there is an abundance of evidence in terms of the amenity impacts on the residents … who pass through on their way to the National Park, who walk around the area, of the resident in the street, of Mr Simeoni in respect of the amenity that those residents enjoyed and how this development is going to impact upon them”. The council submitted the Commissioner should consider “the impact in terms of, under s 79C, the impact on the natural environment and the public interest”.

84 In these circumstances, the issue as to the impact that vegetation removal from Governor’s Road would have on users of the road, both residents and visitors, was clearly raised. The applicant was on notice of the issue from the objectors’ evidence, the Commissioner’s comments at the time of that evidence, the council’s amendments of the Statement of Contentions to raise as an issue the objectors’ concerns, and the council’s submissions on the issue. The applicant had ample opportunity to address the issue and indeed took the opportunity to obtain arboricultural evidence to address the issue. In these circumstances, there was no denial of procedural fairness in relation to the issue. I reject the applicant’s challenge on this ground.

Conclusion

85 I have found that the Commissioner has erred in law in two respects that are vitiating, namely, in the application of the test of consistency under cl 9(3) of the LEP and in the finding of impact of the proposed development on the development potential of the Millers’ property. The appeal should be upheld on these grounds and the Commissioner’s decision set aside. The matter should be remitted to the Commissioner to be determined in accordance with this decision to address these errors.

86 Accordingly, the Court orders:

1. The appeal is upheld.

2. The decision and orders of the Commissioner dated 1 August 2008 are set aside.

3. The matter is remitted to the Commissioner for determination by the Commissioner in accordance with the decision of the Court.

4. Costs of the appeal are reserved.

5. The matter is listed for directions before the Registrar on Friday 19 December 2008.