Universal Property Group Pty Ltd v Blacktown City Council (No 2)

[2014] NSWLEC 115

Land and Environment Court

New South Wales

Medium Neutral Citation:	Universal Property Group Pty Ltd v Blacktown City Council (No 2) [2014] NSWLEC 115
Hearing dates:	29 April 2014
Decision date:	04 August 2014
Jurisdiction:	Class 1
Before:	Sheahan J
Decision:	Appeal dismissed, with costs.
Catchwords:	APPEAL: s 56A appeal from decision of Commissioner - was procedural fairness extended to the applicant by the Commissioner? - reliance by Commissioner on issues not, or no longer, in contention between parties - alleged failure to give adequate reasons - alleged failure to take into account a mandatory relevant consideration under s 79C.
Legislation Cited:	Blacktown Development Control Plan 2006 Land and Environment Court Act 1979 Environmental Planning and Assessment Act 1979
Cases Cited:	Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 Boral Cement Pty Ltd v SHCAG Pty Ltd [2013] NSWLEC 203 Botany Bay City Council v Premier Customs Services Pty Ltd [2009] NSWCA 226; (2009) 172 LGERA 338 Brimbella Pty Ltd v Mosman Municipal Council (1985) 79 LGERA 367 Carstens v Pittwater Council [1999] NSWLEC 248; (1999) 111 LGERA 1 Castle Constructions Pty Ltd v North Sydney Council [2008] NSWLEC 239 Concrite Pty Ltd v South Sydney City Council (1998) 101 LGERA 170 Design Power Associates Pty Ltd v Willoughby City Council [2005] NSWLEC 470; (2005) 148 LGERA 233 H & J Standen Pty Ltd v Minister for Planning and Infrastructure [2014] NSWLEC 113 Hodge v Williams (1947) SR(NSW) 489 Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 Mifsud v Campbell (1991) 21 NSWLR 725 North Sydney Council v Ligon 302 Pty Ltd (1995) 87 LGERA 435 RCB v The Honourable Justice Forrest [2012] HCA 47; 247 CLR 304 RTA v Peak [2007] NSWCA 66 Segal v Waverly City Council [2005] NSWCA 310; (2005) 64 NSWLR 177 Shao v Hornsby Shire Council [2001] NSWLEC 254; (2001) 116 LGERA 462 The Village McEvoy Pty Ltd v Council of the City of Sydney (No 2) [2010] NSWLEC 17; (2010) 176 LGERA 119 Universal Property Group Pty Ltd v Blacktown City Council [2013] NSWLEC 1231 Warkworth Mining Limited v Bulga Milbrodale Progress Association Inc [2014] NSWCA 105; (2014) 200 LGERA 375 Zhang v Canterbury City Council [2001] NSWCA 167; (2001) 51 NSWLR 589; 115 LGERA 373
Category:	Principal judgment
Parties:	Universal Property Group (Applicant)
Representation:	Mr I Hemmings, SC with Mr M Staunton, barrister (Applicant) Mr A Pickles, barrister (Respondent) Hunt and Hunt Lawyers (Applicant) Bartier Perry Lawyers (Respondent)
File Number(s):	10956 of 2013
Decision under appeal	Citation: [2013] NSWLEC 1231 Date of Decision: 2013-11-28 00:00:00 Before: Commissioner Hussey File Number(s): 10242 of 2013

Judgment

Introduction

1. This is an appeal, under s 56A of the Land and Environment Court Act 1979 ("The Court Act"), against the decision of a commissioner, handed down on 28 November 2013, in matter no 10242 of 2013: Universal Property Group Pty Ltd v Blacktown City Council [2013] NSWLEC 1231.

1. In that decision, Hussey C dismissed the applicant's Class 1 appeal against the deemed refusal by Council of an application for approval of a medium density project at 236 Richmond Road, Woodcroft.

1. The applicant/appellant seeks remittal of the matter to a commissioner other than Hussey C to be heard again and determined afresh: s 56A(2)(b), and Boral Cement Pty Ltd v SHCAG Pty Ltd [2013] NSWLEC 203, at [134] - [137].

1. The medium density development proposed comprised 102 dwellings (88 two-storey houses, and 14 villas, each with three to four bedrooms), and included associated uses, open space, parking and private internal roads.

1. The design of the project's internal roads became a principal cause of concern to the Commissioner during the hearing, and then the primary basis for his refusal to grant consent.

1. The original internal road design comprised an oval-shaped perimeter loop road, of about 580m in length, intersected by three shorter cross-roads. The perimeter road provided for two-way traffic, and the cross-roads for one-way traffic, with a single access point to the project off Eucumbene Drive.

1. Significantly, these internal roads were to operate as a "shared zone", i.e. pedestrians and vehicles would use the same space. When the Commissioner raised his concerns about this element of the proposal, the respective traffic experts endorsed an amending plan, which included a raised pathway adjacent to the perimeter road.

1. Even in the absence of any submission by the Council that the DA should be refused, the Commissioner remained not satisfied that it should be approved, and he dismissed the appeal.

1. Before me, three grounds of appeal against that decision were pressed by the applicant/appellant:

(1)   Denial of Procedural Fairness.

(2)   Failure to give (adequate) reasons.

(3)   Failure to deal with a mandatory relevant consideration (Blacktown Development Control Plan 2006 - "the DCP").

1. The parties agreed upon a three-volume Appeal Book ("AB1", "AB2", and "AB3").

The Hearing of the Class 1 Proceedings

1. The Class 1 appeal proceedings were heard over two days on 10 and 11 October 2013, and commenced with an onsite view, conducted on the morning of the 10th. (The transcripts of each day are in AB1, tabs 3 and 4, at folios 23 - 65, and 66 - 128, respectively, but, when transcript is quoted below, I will give its date and page reference, rather than its AB tab and folio reference).

1. Once back in the courtroom, the applicant opened its case first, and its Counsel identified five of Council's filed contentions, which then remained unresolved, and so remained as issues between the parties. The respondent's counsel agreed.

1. Those issues were (T10.10.13, pp7 - 11):

(1)   Proximity of car parking spaces;

(2)   Distribution of visitor parking;

(3)   Whether there should be a separate pedestrian path;

(4)   Whether some driveways are set back sufficiently from the intersection; and

(5)   The location of some common open space.

1. The applicant relied on the evidence of five experts - Mr Varga and Mr Finlay (Traffic Engineers), Mr Grech (Town Planner), Mr Fanning (Ecologist), and Dr Martens (Hydrologist). The respondent relied on only two - Mr McLaren (Traffic Engineer) and Mr Apps (Town Planner).

1. The traffic experts gave concurrent evidence (T10.10.13, pp14 - 43, and T11.10.13, commencing p16), and were then joined in concurrent evidence by Dr Martens (T11.10.13, pp17 - 22).

1. Most of the five issues were found to be capable of resolution either by minor amendment of the proposal, or by agreed conditions of consent.

1. However, the perimeter loop road remained an issue. Mr McLaren articulated a problem with its operating as a "shared zone", absent a pedestrian pathway (T10.10.13, p21), ultimately conceding that, if a number of speed humps were installed along the perimeter road, it would become "barely acceptable" (Tp37).

1. At the resumption of the hearing on the second day, the Commissioner indicated (T11.10.13, pp2 - 3) that he had a number of particular concerns with the design of the internal access ways, flowing from the concerns Mr McLaren raised on the first day.

1. In response to the Commissioner's concerns, the applicant's traffic engineers further consulted, and, after a short adjournment, Counsel for the applicant said (Tp5, L29) that the Commissioner's concerns again could be resolved by amendments to the plans, which would introduce a separate pathway around the perimeter road.

1. Mr McLaren ultimately agreed (Tp16, LL40 - 45) that, if the proposal were amended to provide a separate pedestrian pathway on the perimeter loop road, the internal road design was acceptable on traffic safety grounds.

1. The engineers then marked up the location of a footpath on a plan, which eventually became Exhibit N before the Commissioner (and can now be found in AB1, at tab 17).

1. Hussey C also raised an issue in relation to the drainage within the road area. In particular, he took issue with the "sag dish" profile proposed, as opposed to a "crown" road, which was usual practice (T11.10.13, p18). He indicated (1) that, prior to making a decision, he wished to see amended architectural, landscaping and drainage plans (Tp56), and (2) that it may be of assistance if he were provided with examples of other sites with the "sag-dish" profile (Tp61).

1. Counsel for the applicant submitted that in view of what had occurred during the hearing, in respect of the contentions which were outstanding at the beginning, there was no reason for the Court to refuse the application. The solicitor for the Council confirmed that any residual concerns which Council had were "not determinative".

1. At the conclusion of the hearing (Tpp61 - 63), the Commissioner (1) directed the applicant to file amended plans incorporating the amendments to the shared accessway, and also (2) directed the Council to then file agreed draft "without prejudice" conditions. The final plans were submitted on 21 October 2013 (AB1, tab 19), and the draft conditions on 14 November 2013 (AB3, tab 33).

1. The learned Commissioner delivered his lengthy written judgment some 6 to 7 weeks after the conclusion of the hearing (28 November 2013).

The Commissioner's Decision

1. Hussey C dismissed the appeal and refused consent, primarily on the basis that the design and intended mode of operation of the private internal access ways were inadequate.

1. The Commissioner assessed the design of the internal accessways, against the RMS "shared-zones" policy, which identified a number of qualitative outcomes which must be achieved by any shared-zones. However, he highlighted the lack of any development control standards for designing internal roads for developments of this scale, against which the "shared accessway" could be assessed. Accordingly, the Commissioner assembled his own set of evaluative criteria, against which to determine whether the road met the qualitative standards listed in the RMS policy, (see [77] - [78]).

1. The Commissioner drew attention (at [15]) to the fact that, although the traffic experts said that the guidelines contained in the RMS "Shared Zone" Policy can be readily applied to the private accessway proposed, they provided no specific justification or reasons presented for that approach. He then outlined (at [16]) the desirable qualitative outcomes contained in the policy, viz the "shared-zone" accessways must:

• Be safe for all road users, particularly pedestrians;
• Reduce the risk of crashes between vehicles and pedestrians;
• Require lower vehicle speeds; and
• Enhance the quality of the street environment.

1. He commented (at [18]) that the policy was "directed toward limited situations on existing public roads", and that it does not list developments of this kind as appropriate for a shared zone accessway.

1. He then discussed (at [23]) the further amended plans which introduced the pedestrian pathway, and noted that "a fairly common situation arises where the amendment of one element (i.e path paving inclusion in this case) often creates other issues".

1. He remarked (at [23] - [25]) that one of the main challenges in the case was "to identify the appropriate evaluation procedure" for this form and size of development, and its accessways, because the RMS did not specify any relevant numerical standards. He noted the lack of specific development controls in the DCP, for access ways which service developments of this size, and concluded ([25]) that the various controls derived by the experts resulted in "a set of 'hybrid' guidelines that appear to be based on their experience rather than current policy references". The "derived evaluation criteria" must be appropriate, so that they could be integrated with the qualitative goals outlined in the RMS policy document, "and the cumulative effect determined".

1. The learned Commissioner acknowledged (at [26]) that the inclusion of the separate pathway put the proposal into a "special category", identified in the RMS policy:

"Only in special circumstances can kerb and gutter be retained with RMS approval. These special circumstances are not identified".

1. The Commissioner then discussed (at [27] - [38]) the inadequacy of a carriageway reduced in width to 5m, as a result of the inclusion of the pathway. He referred to cl 6.13 of the DCP, which provided (emphasis mine):

"Accessways

An 'accessway' is defined as an area or road for the access and manoeuvring of vehicles within the boundaries of a development, but does not include car parking spaces.

The common accessway pavement shall be 6m wide from the street to the building setback and may reduce in width onto the site thereafter depending upon the scale of the development and providing that an accessway must remain at least 5.5m wide to a bin-standing area where such is provided away from the street frontage. No accessway pavement width shall be less than 4m for developments up to 5 lots and 5m for developments up to 15 lots.

All accessways shall be constructed to Council's standards appropriate to the type and volume of traffic it is assessed they will carry.

Council will access the suitability of vehicular accessways for cars and garbage trucks by reference to the standard vehicle turning templates for a car and a large rigid truck which appear in Figures A.3a and A.7a respectively of the Roads and Traffic Authority publication 'Policies Guidelines and Procedures for Traffic Generating Developments'".

1. He commented ([29] - [31] - emphasis mine):

"29. ... Unfortunately, there is no specification for a development up to 100 lots. Presumably it would not be less than 5 m and probably somewhat wider, otherwise the controls may not contemplate such large developments serviced by private accessways.

30 Applying these local guidelines to the subject application would most likely require a minimum pavement width of 6m for the 2 - way traffic section in the perimeter road, which has an overall length of approximately 580 m. However, the controls also specify a minimum width of 5.5m is required adjacent to any garbage bin standing areas.

31 It appears that most of the perimeter accessway carriageway is nominally 5m wide when the 1.2m wide footpath is excluded. There are 5 significant garbage bin standing areas adjacent to lots 67, 91, 96, 73/74, 79/90 where the width is only 5m. Taking into account the potential traffic circulation on this 580m long accessway, the proposed the proposed accessway widths seem inadequate, particularly at bin standing areas, based on the DCP controls. In this regard, it is also likely that other similar sized vehicles will park in the accessways for a range of deliveries and furniture removals."

1. As a "check" on his findings as to a minimum 6m accessway width, the learned Commissioner turned to the RTA (now RMS) Policies Guidelines and Procedures for Traffic Generating Developments, referred to in the DCP, and to the Council's own Engineering Guide to Development, filed with the Amended plans.

1. He concluded (at [37]) that "there could be a reasonable expectation for some increase in the carriageway width over the 5m width specified for a private road serving 15 dwellings", as the accessway would service 95 dwellings, and the proposed accessway width of 5m is inadequate.

1. The Commissioner went on to say (at [39] - [42] - emphasis mine):

"39. As noted, the separate footpath element was introduced late in the hearing as shown in Attachment A. The proposed footpath is 1.2m wide and its front alignment is connected to the roll top kerb. Due to the other constraints of the site, the back alignment of the path has variable offsets from the property boundaries ranging from approximately 0.5m to about 1.5m.

40 In response to the concerns raised by Mr McClaren (sic) about pedestrian safety, it is apparent that there are a number of dwellings where the back of the footpath is less than 1m from the garage door and there are units No 9, 12, 13, 15, 18, 20,23 and 41 where the offset is about 0.5m. This means that the pedestrians will be relatively close to vehicles entering/exiting the garages, and in many cases the dwellings adjoining open parking space. In these circumstances the sight distance is minimal, particularly for reversing movements.

41 Considering the more conventional practice of setting back garages from the street alignment, I do not consider the proposal would adequately satisfy the RMS guideline for being safe for all users, particularly pedestrians. In this regard I also note that Part 6.11 of the DCP requires:

(c) The main building walls shall be setback from the pavement of a common accessway by at least 3m.

42 In my assessment, the proposal does not generally satisfy this control and therefore I consider a possible safety issue arises. As the path paving was added after the safety audit, it does not assess these actual risks."

1. He then found (at [43] - [44]) that the road safety audit conducted by the applicant's traffic expert, Mr Varga, was largely irrelevant, as it was produced prior to the proposal to include the separate pathway, but he expressed (at [45] - [49]) the Court's satisfaction with the "sag-dish" drainage profile of the proposed road, and noted (at [50]) that the sag-dish profile would reduce the width of the carriage way in some places to between 4 and 4.5m, resulting in an unacceptable environmental outcome.

1. He also found (at [51] - [55]) that the narrow setback of the buildings from the pathway would be insufficient to provide room for the landscaping required by DCP 6.10 (AB3, tab 21 at F, fols 1279 - 80).

1. Commencing at [56], the Commissioner discussed the concerns raised regarding the distribution of visitor parking spaces, and the separation of some "secondary" car parking spaces. He noted (at [60]) that, on both issues, although the situation was "less than ideal", agreement had been reached by the parties based on certain conditions of consent, and any residual concerns were not sufficient to warrant refusal of the application.

1. The Commissioner then noted (from [61]) how the planning experts had been asked to consider the "appropriate authorities, references, and evaluation criteria to assess the merits of access to larger scale medium density developments, particularly where Shared Zone access is involved".

1. He concluded (at [66]) that "no relevant access controls for this type and scale of development were presented to the Court, except for the DCP controls", and expressed his remaining concern about safety and functionality.

1. The Commissioner then dealt with the contention regarding the location of common open space ([67] - [71]), concluding that it could be addressed by conditions of consent, and was not a reason for refusal.

1. In a section of his judgment, headed "Conclusion" (at [74]), the Commissioner recast the central issue as to the appropriate circumstances in which to implement "shared zone access" in this type of development. He noted that the parties' planning and engineering experts had provided a "minimal response in terms of referenced current practice", and had failed to justify their "significant variations from the policy provisions" which were before him (his issues are listed at [76]).

1. He concluded (at [77]) that:

" ... whilst the proposal is based on the 'shared zone' concept it does not comply with the aforementioned guidelines and it departs from other associated Blacktown DCP provisions. This process has resulted in a mixing of various controls to achieve a set of 'hybrid' standards. In these circumstances, it seems reasonable to assess the cumulative effect of the various road elements so that a satisfactory street/road environment outcome is achieved and specifically to satisfy the qualitative goals stated by the RMS. As the respective consultants have not undertaken this task, I have adopted the following evaluation procedure for the assessment of the overall road design."

1. The Commissioner set out (at [78]) nine evaluative criteria from on which he based his assessment of the accessways, and indicated (at [79]) that "the primary control" was the RMS 'Shared Zones' policy, which he considered had some shortcomings ([79] - [80]):

"79. ... Whilst it allows shared zone accessways, it is mainly applied on a restricted basis to public road situations and new 'greenfields development are not identified as appropriate locations. Furthermore, the maximum road length is to be less than 400m whereas the proposed loop accessway is effectively 580m. Also, no kerbing or paving is preferred otherwise the proposal falls into the 'special category' that requires the RMS approval.

80 I do not consider that there was any compelling evidence to justify the significant variations to the policy, particularly the application to large, new private developments. I consider this a negative aspect of the proposal."

1. The Commissioner opined ([82]) that the proposal did not comply with the DCP controls for carriageway width in cl 6.13. The accessway reserve had a width of 6m, but the proposed path would reduce the width available for the accessway itself by 1.2m, a situation the Commissioner ([84]) found "inadequate" in the circumstances, for the two-way traffic in the loop road.

1. He also found (at [86]) the garage clearances "inadequate".

1. After dealing with traffic control issues (at [87] - [91]), the Commissioner also opined ([92] - [93]) that the signage associated with the shared accessway would generate unacceptable "visual clutter".

1. He went on to indicate (at [94] - [95]) that the introduction of the pathway, would have an unacceptable impact on landscaping adjacent to the accessway, "unlikely to result in an enhanced streetscape", and he expressed doubt (at [96] - [97]) about the ability to ensure and enforce the safe and efficient use of the accessway.

1. He found (at [99]) that the "shared accessway" proposal was not satisfactory, "mainly because the accessway reservations are too narrow to accommodate the various road elements for the scale of development, particularly where the path paving is proposed". The RMS "shared zone" objectives to:

• Provide priority for pedestrians;
• Reduce the dominance of vehicles along the street;
• Improve the amenity for pedestrians; and
• Enhance the quality of the street environment

were not satisfied by the proposal.

1. Before pronouncing his orders (at [102]), he concluded ([100] - [101]):

"100 I have considered the draft conditions, which were filed late in the proceedings. In my opinion they do not provide sufficient comfort in regard to adequately addressing the aforementioned concerns. Instead they defer to others the final accessway design. Importantly there are no details of how the traffic can be managed, particularly the maximum speed limit of 10kph that is essential for the safety of the shared use by pedestrians, cyclist and vehicles.

101 My conclusion is that this proposal has not adequately demonstrated that the RMS 'shared zone' policy should applied to the subject circumstances and therefore does not merit consent. I think that the cumulative effect of the various road elements does not adequately satisfy the RMS qualitative criteria. Furthermore, I consider that the public interest would be well served by some policy consideration to the circumstances for the application of the RMS guidelines, which only apply to selective locations, on the basis that aims should be to achieve safe, attractive and interesting places reflecting local needs and activities based on community involvement and participation."

Appeals

1. Section 38 of the Court Act states (my emphasis):

(1) Proceedings in Class 1, 2 or 3 of the Court's jurisdiction shall be conducted with as little formality and technicality, and with as much expedition, as the requirements of this Act and of every other relevant enactment and as the proper consideration of the matters before the Court permit.

(2) In proceedings in Class, 1, 2 or 3 of the Court's jurisdiction, the Court is not bound by the rules of evidence but may inform itself on any matter in such manner and as the proper consideration of the matters before the Court permit.

1. However, in Carstens v Pittwater Council ("Carstens") [1999] NSWLEC 249; (1999) 111 LGERA 1, Lloyd J cited with approval this passage of Davidson J in Hodge v Williams (1947) SR(NSW) 489, at [46]:

"Nevertheless, it is not permissible for the Judge or jury, in the absence of the parties, to gather by extraneous evidence or experiments of their own, anything in the nature of additional evidence, and apply it in the determination of the issues, unless the facts so obtained are ventilated and submitted to the comment of the parties or their counsel. ..."

1. Thus the broad power given to commissioners in Class 1 proceedings to inform themselves of any matter in s 38(2) is qualified by a requirement that the parties are made aware of the matters upon which commissioners will inform themselves and how.

1. Further, s 39(2) of the Court Act states that:

In addition to any other functions and discretions that the Court has apart from this subsection, the Court shall, for the purposes of hearing and disposing of an appeal, have all the functions and discretions which the person or body whose decision is the subject of the appeal had in respect of the matter the subject of the appeal.

1. As I noted in Concrite Pty Ltd v South Sydney City Council (1998) 101 LGERA 170 at 191, s 39(2) of the Court Act clearly vests in the Court all the functions and discretions of the consent authority, and the Court "is not bound by any limited articulation by the parties of the issues and options".

1. I can find no authority for any proposition that a commissioner of the Court, allocated by the Chief Judge to hear a Class 1 appeal, is not entitled to determine the proceedings independently of any agreement reached between the parties, on any issues which they had not earlier resolved, and/or that the commissioner is bound by their definition of issues outstanding.

1. Appeals from decisions of commissioners under s 56A of the Court Act are limited to errors of law: The Village McEvoy Pty Ltd v Council of the City of Sydney (No 2) [2010] NSWLEC 17; (2010) 176 LGERA 119, at [25]. However, the Court must not approach a s 56A appeal by examining the Commissioner's decision with a "fine tooth comb" to find errors of law: Brimbella Pty Ltd v Mosman Municipal Council ("Brimbella") (1985) 79 LGERA 367 at 368.

1. In Carstens, Lloyd J said (at [69]):

"... I approached the question in this case by seeing if the Commissioner gave adequate reasons for coming to [his] conclusion, ... in a way which exposes the basis upon which such decision was reached, but not in an overly critical or pernickety way and not examining the words too narrowly nor as if they were written by a lawyer."

The Grounds of this Appeal

1. As I indicated at the outset ([9]) three grounds of appeal were pressed.

1. The following particulars of them were pleaded:

DENIAL OF PROCEDURAL FAIRNESS

1. The Commissioner denied procedural fairness to the applicant.

Particulars

(a) The Commissioner determined the matter on the basis of matters either not in contention or no longer in contention between the parties without putting the applicant on notice of his intention to do so and without giving the applicant an opportunity to address him on those matters with such matters including:

(i) the safety and amenity impacts arising from the design of the internal road system.

(ii) the adequacy of the width of the internal accessways at garbage pickup points, in areas nominated on sections and generally.

(iii) the adequacy and likely success of the proposed landscaping.

(iv) the appropriateness of the application of the RMS 'shared zone" principles to the accessways and the extent to which the proposed accessways complied with those principles.

(v) the setback of the dwellings from the accessways.

(vi) the Commissioner considered the RMS Guidelines for Traffic Generating Developments in relation to car parks and the Blacktown City Council Engineering Guide for Development in determining the appropriate width of the internal accessways.

(vii) that the amount of signage required would constitute visual clutter in the streetscape.

(viii) sight distances from garages and or parking spaces was inadequate.

(ix) that preferred traffic desire lines will be complicated by the traffic flow restrictions arising from the one-way traffic roads, which are an essential traffic management control, mainly due to narrow carriageway widths.

(x) that there would be a private pathway through the front setback are of unit 40 to access the dwelling's secondary car space.

(b) ...

(c) The Commissioner failed to consider and evaluate the evidence of the experts admitted at the hearing:

(i) the oral evidence of the traffic experts in relation to the safety of the amended internal accessways and proposed footpaths.

(ii) the oral evidence of the traffic experts in relation to the manoeuvrability of and around garbage trucks, furniture delivery trucks and parked vehicles.

(iii) the operation of the internal accessways as shown on the amended plans.

FAILURE TO GIVE REASONS

2. The Commissioner failed to give adequate reasons.

Particulars

(a) All three traffic experts agreed that the safety and amenity of the amended internal accessways was acceptable. The Commissioner found that the safety and amenity of the internal accessways was not acceptable. The Commissioner failed to give reasons for not accepting the evidence of the traffic experts.

(b) All of the planning experts agreed that the amenity of the internal accessways was acceptable. The Commissioner found that the amenity of the internal accessways was not acceptable. The Commissioner failed to give reasons for not accepting the evidence of the planning experts.

FAILURE TO TAKE INTO CONSIDERATION A MANDATORY RELEVANT CONSIDERATION

3. The Commissioner failed to take into consideration the provisions of the DCP in relation to the width of the proposed accessways and instead set aside the standard specified in the DCP and applied his own standard of what he considered to be reasonable.

Ground 1 - Denial of Procedural Fairness

1. A failure to afford procedural fairness is an error of law: Castle Constructions Pty Ltd v North Sydney Council [2008] NSWLEC 239, at [20].

1. The applicant submitted that it was denied procedural fairness in two respects:

(i)   The Commissioner determined the matter on the basis of a number of issues which were not contentious between the parties, none of which were adequately raised with them by the Commissioner, with the result that the applicant was not afforded an opportunity to be heard in relation to them (Ground 1(a), and subs par 43);

(ii)   The Commissioner failed to consider and evaluate the evidence of the respective town planning and traffic experts, without giving adequate reasons as to why certain evidence was disregarded, therefore denying the applicant procedural fairness by not taking into account its arguments (Ground 1(c), and subs par 51).

Ground 1(a)

1. Under s 39(2) of the Court Act ([56] above), the Commissioner stands in the shoes of the determining authority (here the Council), and is not bound to determine proceedings solely by reference to the issues argued by the parties. Agreements by the parties, the experts, or the legal representatives do not discharge the Commissioner's duty or discretion.

1. The Commissioner may take into account matters beyond the scope of those identified or argued between the parties, but procedural fairness requires that they be given notice of those additional matters, and afforded the opportunity to be heard upon them; Shao v Hornsby Shire Council [2001] NSWLEC 254; (2001) 116 LGERA 462.

1. The Court of Appeal said in Warkworth Mining Limited v Bulga Milbrodale Progress Association Inc [2014] NSWCA 105; (2014) 200 LGERA 375, at [38] and [112]:

"38 Whilst the preceding comments were made in reference to administrative decision-making, procedural fairness is also 'an essential characteristic of judicial proceedings': RCB v The Honourable Justice Forrest [2012] HCA 47; 247 CLR 304 at [42]. However, as the High Court there observed, 'its content is dependent upon the nature of the proceedings and the persons claiming its benefit'. In this regard, the requirement under the Court Act, s 38(1), that proceedings in the Court's Class 1 jurisdiction are to be brought with as little formality as possible, does not abrogate the fundamental requirements of procedural fairness in those proceedings: see RTA v Peak [2007] NSWCA 66 at [15] and [150].

...

112 The essential point, however, is that if evidence is required to meet an issue, the party asserting the factual basis for the issue raised bears the responsibility for adducing the necessary evidence. It is not sufficient to expect that the underlying basis of an opinion would be revealed in cross-examination. Nor was the Association's failure to cross-examine the experts productive of procedural unfairness. The parties were given an opportunity to adduce evidence on the issue. A party's failure to adduce relevant evidence does not give rise to a failure to afford procedural fairness. ..."

1. In Design Power Associates Pty Ltd v Willoughby City Council [2005] NSWLEC 470; (2005) 148 LGERA 233, at [70], Lloyd J held:

"A commissioner of the court is not bound to determine the proceedings solely by reference to the issues and there is no error of law if he or she does so. If, however the proceedings are to be determined by reference to matters outside the issues, then procedural fairness would require that the parties be put on notice that some additional issue is raised."

1. In its written submissions, the applicant listed a number of matters to which the Commissioner referred in his dismissal of the appeal, which were not in contention between the parties, and were raised with the parties (par 43). They can be summarised as follows:

(i)   The safety and amenity impacts arising from the design of the internal accessways (judgment pars [3] and [14]);

(ii)   The adequacy of the width of the internal accessways ([27], [30], and [31]);

(iii)   The adequacy of proposed landscaping with the addition of the pedestrian pathway in the further amended plans ([51] - [55], and [94]);

(iv)   The extent to which the development was amenable to "shared access" ways in accordance with the RMS "Shared Zones" Policy ([15] - [26], [44] - [48], [74] - [79], and [90] - [101]);

(v)   The setback of the dwellings from the accessway ([40] - [41], [51], [53], [55], [86], and [95]);

(vi)   Based on an interpretation of cl 6.13 of the DCP, the pavement width should be 6 - 6.5m wide ([28], and [32] -[ 34]);

(vii)   The visual clutter generated by signage for the shared accessway is inadequate ([92]);

(viii)   Inadequate sight lines from garages and open carparking spaces to pedestrians ([40]);

(ix)   Complications arising from the one-way traffic roads ([38]); and

(x)   Concern over private pathways that would be required to be put over landscaped areas of some units to allow access to their secondary carparks ([53]).

1. In its oral submissions, the applicant argued that the Court's relevant Practice Note ("PN") covering Class 1 development appeals imposes on those opposing a development, such as the relevant local council, but not, at the moment, judges or commissioners determining development appeals, quite onerous parameters for their contentions.

1. Paragraph 6 of Schedule B to the PN relevantly requires a "respondent consent authority", in its "Part B Contentions", to, in particular:

(a) focus on issues genuinely in dispute;

(b) have a reasonable basis for its contentions;

(c) present its contentions clearly, succinctly and without repetition;

...

(f) where it contents that a proposal does not comply with provisions, including development standards, of an environmental planning instrument or provisions of a development control plan, identify the standard or provision that is breached and quantify the extent of the non-compliance (if necessary, in a diagrammatic form), grouping together provisions dealing with the same aspect (for example, height or density);

...

1. Mr Hemmings suggested that the same tests ought be applied to any "Commissioner's issue" - he submitted (at Tp4, LL13 - 20):

"... where a Commissioner raises a Commissioner's issue ... there needs to be at the very least a clear and succinct identification of the contention, and even then, one needs to look at the way in which the proceedings have unfolded to see if the applicant has appropriately been put on notice ..."

1. He submits that the commissioner in the present case did not satisfy that test. He added (Tp30, LL15 - 18):

"...it seems to be happening more often and it may be that it's the sort of thing ultimately the Court needs to deal with by means of some sort of practice note or something for the assistance of Commissioners ..."

1. The respondent, in its written submissions (par 23), submitted that items (ii) - (x) simply reflect the detailed reasoning process by which the commissioner came to his conclusion on the issue which he identified (at [14]) as the principal access contention, namely, "the safety and amenity impacts arising from the design of the internal road system".

1. In his oral submissions, Mr Pickles (Tp53, LL4 - 21) responded briefly to the applicant's PN suggestion in these terms:

"... practice directions are of course only directed to the parties not directed to the Court itself. They're directed to the conduct of the parties in preparing matters for hearing. And so to the extent to which it is a requirement of the parties to formulate the issues in dispute in the manner specified in sch B of the practice note, that's an obligation on the parties but that obligation is not one which applies to the Commissioner.

One can't then impute that upon the Commissioner and say he should have sort of been bound by that kind of standard. In any event, I would say he met that standard and it can be demonstrated he met that standard because in response to his raising of the issue, the applicant took steps to do something about it. Now, it might not have done enough and it reaps the consequences of that but it did respond. And the fact that the applicant responded to the raising of the matter by the Commissioner is of itself proof that the Commissioner didn't have a closed mind about this matter. He may well, if the applicant had addressed all of his concerns, and addressed by submissions, matters that went to those concerns, he'd be prepared to hear them and may indeed, form a different view."

1. The Commissioner sought help from the parties' experts, but with "minimal response" (see judgment par [74]), and Mr Pickles commented (LL41 - 44):

"Help me here. That's not the mark of a Commissioner who had a closed mind, that's a mark of a Commissioner who's wanting to evaluate it fairly and properly and gave the applicant every opportunity to meet it by raising the concern on the second day and allowed the applicant to amend its plans."

1. The question in this appeal is, therefore, whether the applicant was given proper notice of, and an opportunity to meet, such concerns of the Commissioner as led to his refusal to grant consent.

1. On the beginning of the second day, the Commissioner indicated that he had a number of concerns regarding the design of the internal road system, in particular its operation as a "shared-zone", with no separate pathway for pedestrians.

1. In an attempt to deal with the Commissioner's concerns, following conferencing between the applicant's traffic experts, marked up plans, which included a separate pedestrian pathway around the perimeter road, were submitted (Exhibit N, at AB1, tab 17).

1. Both sides found them satisfactory, but the Commissioner remained concerned, and did not accept that the parties had addressed his concerns adequately, if at all.

1. Mere perusal of the transcript of the Commissioner's dialogue with counsel at the beginning of the second day of the hearing shows how his concerns were ventilated (see T11.10.13, pp2 - 7). The Commissioner employed terms such as (at Tpp2 - 5):

• "I have significant concerns."

• "this accessway is a deemed road."

• "was it appropriate to transfer over the shared zones criteria to a private accessway?"

• "I don't think I was assisted properly yesterday"

• "this relationship with the scale of that development , with a 6 metre accessway ... I think [is] a planning consideration."

• "I have looked at the development control plan and the development control plan is unhelpful it seems to me."

• "I'm concerned about the enforceability of the safety mechanisms."

• "from my experience as a planner/engineer and living in one of those sort of developments, ... I am concerned about the parking on those roads."

• "I'm concerned about the width of those roads. I want the planners ... to help me with that."

• "I had a quick look when I was so concerned about this. I looked at old documents that I have, and I will hand it down - 'Streets for [Living]'."

• "share-ways in developments of this size ... are only 6 metres wide. Is there some documentation, some new design guidelines that put that forward?"

• "STAUNTON: Yes, the perimeter road is [two way] but the internal roads are one way.

COMMISSIONER: Okay, well I am concerned about that with a 6 metre wide if vehicles are parked. They are concerns that I have, and if this is current practice, if this is best practice to have those share-ways, I'd like to know some examples and I may even like to have a look at them, and in this scale of development, but surely to goodness with all the publications around in terms of good design where are the design guidelines that are up-to-date that would get a good outcome if that illustration that I have is the way that this will work?"

• "I have yet to be convinced that that's a good design outcome."

• "I just wanted to express those concerns.

STAUNTON: I am indebted to you for telling me, Commissioner, so I will seek some instructions."

1. The parties then requested (Tp5) a short adjournment, after which the following exchanges took place (at Tpp5 - 6):

"STAUNTON: So Commissioner I can possibly deal with your concerns by an amendment to the plans. I've got my traffic experts here. Council hasn't got their traffic expert here but we can possibly provide a pedestrian strip around the perimeter road. It would effectively still be part of the road pavement but we would provide it in a different material and provide a line so that it would be identified clearly as a pedestrian access. In order to do that what my traffic experts tell me is you would make it one way around the perimeter road and then you would have separate one-ways on the laneways between the blocks. So I could have my experts explain it to you. We've tried to contact Mr McLaren but we can't get in contact with him.

COMMISSIONER: Just recounting Mr McLaren's concerns, and I haven't accepted his, we've still got to have submissions but I'm just trying to work it out. Was his position that he wanted a footpath, he preferred a footpath. Was that additional or was that within that 6 metre road reserve?

STAUNTON: I don't know that he was that specific about it, Commissioner. The only thing I remember from Mr McLaren's evidence was he said it was acceptable, albeit he said barely acceptable, but that might be because I'm the counsel for the applicant.

COMMISSIONER: I' be interested with the traffic people then how efficiently the road system works that if you have - he was talking about a 1.2 metre wide footpath.

LOECHER (sic): Yes, as a separate footpath round the perimeter road.

STAUNTON: He said he was happy with the internal laneways as being share-ways. That wasn't his problem.

LOECHER (sic): That's not an issue.

STAUNTON: His concern was in relation to--

COMMISSIONER: So that if it's 1.2 that effectively means that the driveway part comes back to 4.8 and so--

STAUNTON: No, we've got 6.3.

COMMISSIONER: Okay, well about 5 metres then I'd be interested to see how it works in terms of servicing. It's a fairly large estate for example, the garbage truck. If the garbage truck goes around there, and usually they are not right on the edge, does that block the road for the period that the garbage truck is going around there or is there sufficient room for other people to comfortably get around without getting too aggro and if there is a removalist van there everybody I guess is aware what removalist vans are, they're there for a couple of hours or so. If you restrict that free-flow carriage area by 1.2 metres or so does it still work efficiently, not squeezing, but is it still efficient and safe, that if there are large vehicles there, there are site problems and is it a safe, good outcome? My initial concern is is there some guideline that makes me comfortable that you can just translate those shared zone principles to private developments in Greenfield characteristics rather than its main function to retrofit existing road situations.

STAUNTON: Commissioner, I tried to put into evidence to assist you a whole lot of recently approved developments like this council to demonstrate to you that there's numerous subdivisions that have this exact arrangement.

COMMISSIONER: Yes but I'm asking for something else because this is a hearing, I've got to be satisfied on the merits and things come up for precedents and one example that I've dealt with was a s 34 conference where there was an agreement and if the parties agree to that sort of outcome that's fine, the Court is bound to make those orders but I have other questions that if it's a merit assessment I want to know the basis on which these decisions are made and it seems to me that with the width of these roads there's a convenience and accessibility question. In medium density there's also the amenity and the safety of residents and wherever my little diagram is I hold that up and say 'is that the sort of outcome one would expect in a medium density development of this nature'."

1. From all that, it remained clear that, following the amendment, the Commissioner still had, and articulated, concerns about the facts that (1) the carriageway would be narrower as a result of the amendments, and (2) there was a lack of guidelines available to assess the appropriateness of shared zones in developments of this scale. Importantly (at Tp12, L3 - Tp14, L19), the Commissioner said:

"I'll repeat what's been said a lot of times before. The Court's not the design authority so I'm not designing the thing although I have an understanding of these things and in safety and amenity and I just want to know what the final proposal is to assess the merits of it and I'm always reluctant to just whack conditions on things for that infrastructure sort of thing. I want to test the merits and want the benefit of the experts' opinions along the way and there's changing things with the footpath and I understand you're going to review that position and there's a difficulty because Mr McLaren is not available but, you know, when you solve one problem it often creates another couple and there's just a couple of obvious things here. This road access is a pretty important part of this development and it's an unusual access system, it's effectively a public road and it's unusual drainage to do it that way and it's fairly tight and there's obvious things with the location of that proposed pathway where it fits in best because you put the pathway close to the garage slabs and then with the cross-falls on that it's over the drainage lines and people walk along with different shoe heels and whatever else and if there's a regular passage, and I think there'd be a lot of people using these footpaths or using the access-ways, is that good design for 2013.

...

STAUNTON: Commissioner, on the evidence that was adduced yesterday, I was going to tell you're on the track but you clearly concern about it and I want to address your concern and the best way that I can address your concern is for Mr Varga and Finlay to talk to Mr McLaren to see whether in principal, we can deal with the matter in a way that I suggested to you because if we can, the drainage issues and the speed bump issues are a matter of detail. There won't be any difficulty, as Dr Martin has just told you. it's just that he can't give you a final design until he knows the location of the footpath and he's not here for that purpose so at the moment, I'm happy for Mr Grech and Mr Apps to address you in relation to the present proposal but if it changes, I don't know if that's going to be of any assistance to you. We've still got issues in relation to the common open space, the issues in relation to the car parking, for integration of the car parking and technically the location of the visitor car parking although the contention hasn't been amended yet. So I've got those three things to deal with and then you had a line of questions you want to ask about roads et cetera, which I'm sure that the experts may be able to assist you with.

COMMISSIONER: That primary question, is there some guidelines that make me comfortable that sheds owned in private access ways is good practice or is this pioneering?

STAUNTON: We know it's not pioneering Commissioner because I tried adduce in evidence yesterday at least 20 examples from my client alone that relied upon shared ways in these developments and then Mr Varga was going to produce to you aerial photos which he found in 10 minutes of multiple other developments that have share ways. So this is the way in which medium density housing is developed and frankly, prior to today, no one's ever had a concern in relation to safety. We have taken into account - we did do a safety audit and we did propose measures to address it which none of the other proposals have and the reason why we did that was because of the potential difference in scale, noting albeit that the next biggest one that we've provided is only six lots. This one's 102. So in terms of the increase in scale, it may well be where you've got seven townhouses, the scale or issue is not such a big problem but there's plenty of others which are 30 and 40, and there's ones which are 60 and 86. This one's 102. All of the other ones have never been troubled. They've gone to the DCP and they've designed a development that works in exactly the same way. You're allowed to have your dwellings address the access way. The allowed to have your garages direct the access way. There's no requirement for a footpath and the way they get access is they all walk down the roads and none of these even have a proposal to adopt the share way principles which we're proposing and you did specifically ask the question about whether they were any guidelines and the only guidelines that the traffic experts pointed to were the share way effectively of where you're managing mixed vehicular and pedestrian access.

COMMISSIONER: And I don't see a direct link between application of share way zones to greenfield development. It's not an appropriate location. I don't like to see that. So why has this become current practice when there's been a whole stack of other design guidelines for medium density, whatever, and I don't find much assistance in--

STAUNTON: The planning controls.

COMMISSIONER: Yes and the development control plan - 613, no access way pavement which shall be less than 4 metres for development up to 5 lots and 5 metres for developments up to 15 lots. So okay, I see some precedential value in the determination of this matter. What's the limit for an access way? Is it this - 102? Can you go to 140? Is the next one 200 units which is certainly more cost effective but you've got to balance out cost effective and amenity and safety and I'm particularly concerned about that. So I think that probably until this question is resolved, the planners won't be able to finalise their evidence will they?

STAUNTON: No.

COMMISSIONER: And you know, so it's a little bit - Dr Martens' evidence is of limited assistance until we've got the final plan to evaluate."

1. The respective traffic experts were then called to discuss the inclusion of a pedestrian footpath, and the Council's traffic expert agreed that these amendments made the proposal acceptable (Tp16, LL34 - 44):

"STAUNTON: So Mr McLaren, yesterday in cross-examination by the Commissioner, questioning by the Commissioner, you expressed the opinion that the design as at yesterday was barely acceptable.

WITNESS MCLAREN: Yes.

STAUNTON: If these amendments were made to the proposal, I'd take it that you would accept that is then acceptable on traffic safety grounds.

WITNESS MCLAREN: That's right and you wouldn't need the speed humps but you may put a couple in along the longer length to appease the residents."

1. The Commissioner himself questioned the traffic experts over the concerns he was having regarding the applicability of the RMS "shared zone" policy to "greenfield" developments of this kind (Tp19, L49 - Tp21, L42):

"COMMISSIONER: Would you step down and have a look at those cross-sections and come back. I will ask though that when the traffic people from yesterday when I've had a closer look at the safer speeds, the shared zone document from Transport New South Wales, which has got the criteria in, 7, section 7 Objectives and Features gives appropriate locations. I don't see any appropriate location notification that is appropriate to greenfield new development. I am picking up on something Mr McLaren said yesterday that it was retro fitting situations. Where do I get an indication that shareways are preferred development or good practice in greenfield development such as this.

WITNESS MCLAREN: I think it is - the intention certainly is part of the package of measures that the RMS look at for managing high pedestrian areas and public roads but in relation to greenfield sites I think it is up to judgment as to whether you would apply the objectives to a particular development such as this and I think we have all agreed that the principle should be applied, the trouble we have is the length of that 200 metres. Most of these medium density developments that I have looked at in the past, the smaller scale ones tend to be two or three houses knocked down and you put half a dozen medium density units in there and you could put a ten speed signage there for people using the internal road

...

COMMISSIONER: So where does it say that in a new development when you are starting off from scratch you are not solving problems there and you certainly don't want to create problems, where does somebody say you can just apply these to greenfield development and these principles will result in a good community outcome.

WITNESS MCLAREN: There is nothing that says that in my experience, I think that the reason why I asked for the safety order was that if you actually look at safety conscious planning as part of part 6 of the Road Safety audit document once you go to that level in order to get a lower risk outcome you've got to look at alternatives. So if there is something that's missing you should add it and I said what was missing was the path. If you put the path in you therefore don't need the shared zone because from a safety conscious planning approach the audit procedure has fulfilled that need of saying well there are alternatives.

...

COMMISSIONER: So what guidelines are there, I had a pamphlet this morning that's as old as the hills and it's very dated and if I could have that back, it refers to a public road and I was aware(?) of this after Mr McLaren's evidence yesterday that whilst that is a daily picture on a public road would I expect to see that sort of picture on these access ways?

WITNESS VARGA: Well with this arrangement here now that we've got a separate pedestrian path with a rolled top curve it is more likely that pedestrians would walk along the two pathways on the perimeter road system rather than on the middle of the road so we are getting away from the shared zone idea, it is not so much shared now, it is more pedestrians on the pathway and the cars are on the roadway.

COMMISSIONER: So are there any design guidelines that tells me what best practice is for the design of access ways, pedestrian access, for new medium density development.

WITNESS MCLAREN: Not from my experience. I think it is an area because of the road safety principles and the road safety auditing five step stages that now introduce other stages to it so whilst it has been around in general principles these safety audit documents are now obviously being refined and I would expect that hopefully one day they may find their way into PCPs in relation to medium density of a larger scale than just two or three houses being redeveloped."

1. The town planners were then called to give concurrent evidence to address the issue of common open space and the location of two car parking spaces, both of which issues were not determinative. However, the Commissioner then asked the planners about the assessment of access to medium density developments of this scale, particularly which planning controls they use (Tp30, L18 - Tp31, L34):

"COMMISSIONER: So when you do design medium density developments or assess medium development access what authorities with a valuation criteria do you use?

WITNESS APPS: There's a lot of reliance on engineering guidelines. I mean council's development control is fairly brief in terms of what it requires and we're talking specifically paragraph 6.1(3) of the Blacktown Development Control Plan.

COMMISSIONER: Well it is, you're right, it's fairly brief.

WITNESS APPS: I'm not the author. It talks about once you get into the development itself no less than four metres up to five lots and then five metres up to 15 lots. It doesn't anticipate anything - it doesn't set a control for anything greater than 15 lots even though it's you know there's so many medium density developments that are proposed that are in excess of 15 lots.

COMMISSIONER: Yes, so how do you evaluate it, why couldn't you go to 250 lots?

WITNESS APPS: Precisely, you can. You can go to 250 lots that's--

COMMISSIONER: So is there any authorities that say what good access practice for medium density development is?

WITNESS APPS: It's I guess engineering guidelines.

WITNESS GRECH: Well--

STAUNTON: Mr Grech wants to say something.

WITNESS GRECH: I've seen many, many medium density developments over the last 20, 30 years. It's best described as a different form of housing so that it's housing obviously that doesn't have to rely and won't rely on a public road frontage and that's seen as integral to the choice of that housing type because you want to achieve a certain planning outcome and those planning outcomes are firstly increased density. Because it is medium density you want to be able to maximise the density.

Secondly, you want to be able to purposely design the internal arrangements so you're not designing a new suburb to the extent that you're providing a public road system where development will occur off that public road system by individuals at a later date, you're designing a package up front. So it's providing you with the opportunity to deal with issues such as manoeuvrability into exactly designed locations for car parking, for manoeuvring of trucks for garbage collections, for the placement of garbage bins and et cetera.

So understanding that principle in my experience has always been done in the way that as a total design package you find the location of, you place the location of dwellings as part of the overall design process. You provide an internal driveway that meets the requirements depending on how big the development is.

So if there's a small development you might only provide for one vehicle to move in one direction at once whether there is passing bays or not. In this case there's an internal hierarchy of sorts because the external ring road provides for two way movement and then the smaller internal lateral driveway--

COMMISSIONER: Well I follow the design process but at a certain point would you ever say that the internal road systems are unsatisfactory?

WITNESS GRECH: It's only unsatisfactory if it doesn't serve the function for which the design is required. So you get to one point and you need to provide two vehicles to pass, you must design the roadway to do that. You get to another point where you must provide manoeuvring into that particular garage or that visitor parking space so you must, so you basically shape the internal driveway until you achieve those outcomes."

1. The Commissioner then raised with the planners how shared zone proposals give pedestrians priority, so it is not a "free for all on the road" (Tp34, L40). Mr Grech said that speed controls and signage would ensure pedestrians have priority (Tp35, LL12 - 16). The Commissioner said (at Tp35, LL32 - 47):

"COMMISSIONER: Well, I suppose a commissioner can bring to ask questions on the basis of experience and expertise and I do have some experience living in a medium density development where there are 10k and 15k signposted areas where there is a constant problem exceeding those speed limits by member of the public on private roads, that is very difficult to enforce. So I think that putting a sider(?) doesn't guarantee a safe outcome and that's why I'm trying to make sure that a development from experience and from an engineering and my experience is going to get a good outcome because I know where there has been poor outcomes. And I wonder if there is some authority, I find it surprising that you may cast that aside because it's a 1986 document but I find it surprising that there is not some guidelines, it's left for individual argument and personal preferences in 2013 the application of shared zones within developments which has a tenuous link to the original document, it's not an appropriate application according to that document. Would you agree with that?"

1. It is clear to the Court, from these excerpts of transcript, that the Commissioner expressed his concerns regarding the design of the internal access-way, and his difficulty in finding any guidance by way of planning controls or principles which could shed light on the adequate design of internal accessways in developments of this type and scale. Despite repeated requests, the experts seemed unable to assist him in this respect.

1. While the parties appeared satisfied with the amendment, the Commissioner clearly indicated that his concerns were not satisfied, and he expressly signalled to the parties that he still had reservations on a number of aspects, even apart from the prospect that new issues may arise from amended plans.

1. There is no authority for the suggestion, inherent in the applicant's case before me, that the Commissioner, had any duty to do more than make known his continuing reservations. Procedural fairness does not require him to foreshadow to the parties, specifically, that a decision adverse to the applicant was likely.

1. For completeness, I should add that I accept the respondent's submissions (in par 24), responding in detail to each of the ten particulars set out in the formulation of Ground 1(a) ([62] above).

1. I conclude that, as procedural fairness was shown to the applicant and its team, there was no error of law in this respect, and Ground 1(a) of this appeal, therefore, fails. I am fortified in this conclusion by the analysis and reasoning of Craig J in his very recent judgment in H & J Standen Pty Ltd v Minister for Planning and Infrastructure [2014] NSWLEC 113, at [58] to [100].

Ground 1(c) and Ground 2

1. Both Grounds 1(c) and 2 (see particulars in [62] above) relate to the Commissioner's treatment of the oral evidence of the town planners and traffic engineers. Accordingly, it is convenient to deal with them together.

1. Ground 1(c) alleges that the applicant was denied procedural fairness as the Commissioner failed to properly consider the evidence of the experts in concluding that the accessway should be 6m wide, exclusive of any footpath. They were of the opinion that the proposed internal accessway design, including its width, was acceptable (T11.10.13, pp16, and 30 - 37).

1. It is clear from the lively engagement of the Commissioner during the oral evidence, and then from his assessment, in the judgment, of all the expert evidence, oral and written, that he weighed all of it and remained unsatisfied.

1. Again on this aspect of the appeal, I can find no denial of procedural fairness, and I conclude that Ground 1(c) must fail.

1. Ground 2 alleges that, even if the Commissioner did consider the evidence of the experts, he failed to give adequate reasons for his rejection of it, on the issue of the safety and amenity of the internal access ways. This would amount to an error of law.

1. The relevant paragraphs of the Commissioner's judgment are [61] - [66] and [76] - [86], which are summarized above ([41] - [48]). He did not always distinguish between written and oral expert evidence, but that is not an error of law, and I have carefully considered his detailed reasoning, in the light of relevant authority, which makes clear that one must be careful not to conclude, from the failure to specifically mention some detail of the evidence, that it had not been considered.

1. In Mifsud v Campbell ("Mifsud") (1991) 21 NSWLR 725, Samuels JA said, at 728:

"Similarly, in my opinion, it is an incident of judicial duty for the judge to consider all the evidence in the case. It is plainly unnecessary for a judge to refer to all the evidence led in the proceedings or to indicate which of it is accepted or rejected. The extent of the duty to record the evidence given and the findings made depend, as the duty to give reasons does, upon the circumstances of the individual case.

Accordingly, a failure to refer to some of the evidence does not necessarily, whenever it occurs, indicate that the judge has failed to discharge the duty which rests upon him or her. However, for a judge to ignore evidence critical to an issue in a case and contrary to an assertion of fact made by one party and accepted by the judge ... may promote a sense of grievance in the adversary and create a litigant who is not only disappointed but "disturbed" ... It tends to deny both the fact and the appearance of justice having been done. If it does, ... it will have ... resulted in what I would take to be an error of law which is reviewable on appeal. Whether it is an error of law or an error of fact, it seems to me a failure by the judge to do what the nature of the office requires."

1. In Beale v Government Insurance Office of NSW ("Beale") (1997) 48 NSWLR 430, at 442, Meagher JA cited with approval what Samuels JA had said in Misfud.

1. His Honour continued (at 443):

"... reasons need not necessarily be lengthy or elaborate: ... The scope of the reasons to be given is, as Mahoney JA said in Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 386, related ... to the function to be served by the giving of reasons. Accordingly, the content of the obligation is not the same for every judicial decision. No mechanical formula can be given in determining what reasons are required. However, there are three fundamental elements of a statement of reasons, which it is useful to consider. First, a judge should refer to relevant evidence. There is no need to refer to the relevant evidence in detail, especially in circumstances where it is clear that the evidence has been considered. However, where certain evidence is important or critical to the proper determination of the matter and it is not referred to by the trial judge, an appellate court may infer that the trial judge overlooked the evidence or failed to give consideration to it: North Sydney Council v Ligon 302 Pty Ltd (1995) 87 LGERA 435. Where conflicting evidence of a significant nature is given, the existence of both sets of evidence should be referred to."

1. In Segal v Waverley Council [2005] NSWCA 310; (2005) 65 NSWLR 177, Tobias JA said (at [43]):

"... it does not necessarily follow that a Commissioner or judge of the Land and Environment Court is required to give reasons only with respect to his or her subjective thought processes in coming to their particular decision. Notwithstanding those thought processes, their duty to give reasons would be contravened if they failed to address an issue joined between the parties which, if decided in a particular way, would result in a different decision to that to which the Commissioner or judge has arrived. ..."

1. The evidence of the town planners and traffic engineers on the safety and amenity of the design of the internal accessway was essential to the decision of the Commissioner. His rejection of the expert evidence of both parties was central to his decision, and, therefore, there needed to be a clear articulation as to why.

1. On any fair reading of the judgment (eg [61] - [66]), the Commissioner not only considered the expert evidence, he provided adequate reasons for his rejection of it.

1. It is plain from the judgment that the evidence of the planners as to the internal road design was rejected on the basis that they could not point to any consistent evaluative criteria that could provide a basis for the favourable assessment of the safety and amenity of the proposed accessway.

1. The Commissioner was, therefore, entitled to evaluate the proposed accessway according to his own criteria, based on his expertise, experience, and the material before him, including the expert oral evidence.

1. It can not be said that the Commissioner was required to specifically spell out his rejection of the expert planning evidence when such rejection and the reasoning behind it is implicit in the Commissioner's well reasoned judgment. Such an approach would fall into error by approaching the Commissioner's decision with a "fine-tooth comb": Brimbella ([59] above).

1. In regard to the evidence of the traffic experts, the Commissioner said (at [76]):

"Insofar as the traffic consultants agreed that the Policy guidelines could be applied to the subject development, there are significant variations to the policy provisions, which I do not consider have been adequately justified by the consultants. The critical issues arising concern:

• New greenfield developments are not listed as appropriate locations;

• Non- compliance with the maximum length of the shared zone of 400 m

• Provision of significant sections of roll top kerb and associated pathpaving, which delineates the pedestrians from the vehicles

• The subject application being classifies as 'special circumstances' thereby requiring RMS approval. But there was no identification of any special measures to be applied to these circumstances."

1. He continued (at [77] - quoted above at [45]):

"Consequently, the evidence shows that whilst the proposal is based on the 'shared-zone concept' it does not comply with the aforementioned guidelines and it departs from other associated Blacktown DCP provisions. This process has resulted in a mixing of various controls to achieve a set of 'hybrid' standards. In these circumstances, it seems reasonable to assess the cumulative effect of the various road elements so that a satisfactory street/road environment outcome is achieved and specifically to satisfy the qualitative goals stated by the RMS. As the respective consultants have not undertaken this task, I have adopted the following evaluation procedure for the assessment of the overall road design".

(See also [83] - [86])

1. What the experts deemed adequate was found by the Commissioner, on his own approach, to be insufficient. His approach was synthesised from documents in front of him, or known widely, including to him.

1. He had asked the experts to shed light on any principles or standards against which the internal accessway should be assessed, and they could not point to any. His reasons did not demand any greater detail or formality than he adopted.

1. Ground 2 also fails.

Ground 3 - Failure to take into consideration a mandatory relevant consideration

1. Pursuant to s 79C(1)(a)(iii) of the Environmental Planning and Assessment Act 1979, the Commissioner must consider the provisions of any DCP that applied to the proposed development.

1. The applicant argued on appeal (par 58) that the Commissioner failed to give proper consideration to cl 6.13 of the DCP, because he:

"... acted independently of the DCP and substituted his own test as to what should be the appropriate width of the accessway. The Commissioner therefore applied his own view rather than the policy embedded in the DCP and in so doing fell into error."

1. The appellant relied on Botany Bay City Council v Premier Customs Services Pty Ltd ("Premier Customs") [2009] NSWCA 226, (2009) 172 LGERA 338, and Zhang v Canterbury City Council ("Zhang") [2001] NSWCA 167; (2001) 51 NSWLR 589; 115 LGERA 373. In Premier Customs, Macfarlan JA (Ipp and Hoeben JJA agreeing), cited with approval (at [24]) Spigelman CJ's judgment (with which Meagher and Beazley JJA agreed) in Zhang (at [76] - [77]):

"76 In my opinion, the Commissioner did not 'take into consideration' the standard contained in cl 4.0 of DCP 23. Rather, he substituted for the statutory requirement a different approach. The Commissioner posed the 'issue' for his determination to be: 'The appropriateness of the location taking into account the proximity to the adjoining church, local schools and hotel'. He resolved this issue on the basis that adverse impact upon land affected by the presence of a brothel had to be demonstrated in the legal proceedings before him. This approach could only be supported if the discretion was entirely at large, i.e. that there were no 'standards' of any character which the decision maker had to take into account. By adopting this approach, the Commissioner, in my opinion, proceeded on an impermissible basis.

77 There was a relevant and applicable 'standard' which he was obliged to 'take into consideration'. It ought to have served as a focal point for, or constituted a fundamental element in, his deliberations. The evidence, or rather the absence thereof, about actual effects, was not entitled to determinative weight, without regard to the presumptive 'standard' in this way."

1. In the present case, the Commissioner noted specifically the DCP's cl 6.13, which he set out in full (at [28]), and which is also quoted above (at [33]).

1. That provision does not specify any required widths of accessways for developments of this size. It prescribes minimums of 5m for developments of up to 15 lots, 4.5m up to 5 lots, and 5.5m at bin standing areas.

1. The Commissioner, said (at [29]) that for developments of this size the requirement would "presumably" be not "less than 5m and probably somewhat wider, otherwise the controls may not contemplate such large developments serviced by private accessways".

1. I have already summarized the Commissioner's subsequent analysis and reasoning ([34] - [37] above). He drew upon not only the DCP, but documents which it called up for consideration, and/or which were filed with the amended plans, to arrive at a minimum carriageway width of 6 - 6.5m. That process did not amount to a failure on his part to consider the DCP. I consider that he actually applied the DCP. As the Commissioner was, at least, "expressly permitted", if not obliged, to do that, he cannot be guilty of any Zhang/Premier Customs error (subs par 44).

1. On Council's behalf, Mr Apps conceded that cl 6.13 "doesn't set a control for anything greater than 15 lots even though ... there's so many medium density developments that are proposed that are in excess of 15 lots", and Apps "guessed" that one would need have regard to such other guideline documents (T11.10.13, p30, LL29 - 43).

1. The Commissioner also questioned Mr Grech (at Tp31, LL26 - 34):

"COMMISSIONER: Well I follow the design process but at a certain point would you ever say that the internal road systems are unsatisfactory?

WITNESS GRECH: It's only unsatisfactory if it doesn't serve the function for which the design is required. So you get to one point and you need to provide two vehicles to pass, you must design the roadway to do that. You get to another point where you must provide manoeuvring into that particular garage or that visitor parking space so you must, so you basically shape the internal driveway until you achieve those outcomes."

1. DCP cl 6.13 provides that "all accessways shall be constructed to Council's standards appropriate to the type and volume of traffic it is assessed they will carry."

1. Minds may differ on "appropriate", but finding what was appropriate, was exactly the duty of the Commissioner, and also the process he followed.

1. Therefore, Ground 3 must also fail.

CONclusion

1. As the applicant has failed on all grounds pressed, the question of remitter need not be addressed, and the appeal must be dismissed.

Costs

1. Both sets of competing written submissions indicate that costs should "follow the event" - here the dismissal of the appeal - and there was no departure from that approach during oral argument.

Orders

1. Accordingly, the Orders of the Court will be:

(1)   The applicant's appeal is dismissed, and the decision under appeal is confirmed.

(2)   The applicant is ordered to pay the respondent's costs, as agreed, or assessed according to law.

(3)   The appeal books are returned.

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Decision last updated: 04 August 2014