Wollongong City Council v McDonald's Australia Limited

[2022] NSWLEC 121

Land and Environment Court

New South Wales

Medium Neutral Citation:

Wollongong City Council v McDonald’s Australia Limited [2022] NSWLEC 121

Hearing dates:

30 May, 7 and 9 June 2022

Date of orders:

5 October 2022

Decision date:

05 October 2022

Jurisdiction:

Class 1

Before:

Moore J

Decision:

See orders at [221]

Catchwords:

APPEAL - appeal pursuant to s 56A of the Land and Environment Court Act 1979 - Commissioner approves a new McDonald’s restaurant at Wongawilli - appeal on questions of law - Council presses three grounds of appeal - Ground 1, Council complains that Commissioner misconstrued or misapplied applicable provisions of the Council's development control plan - Commissioner’s decision demonstrates appropriate and sufficient consideration of applicable provisions of the development control plan - Ground 1 fails - Ground 2 pleads three subgrounds - Ground 2.1 alleges failure to make applicable provisions of the development control plan a focal point of the Commissioner’s consideration of the relevant issues - Ground 2.1 contingent on Ground 1 and therefore fails - Ground 2.2 alleges specific failure to address cl 3.74 ch B4 of Wollongong Development Control Plan 2009 - matters in the provision adequately addressed - Ground 2.3 alleges failure to have regard to objector evidence concerning “healthy food” - objector evidence appropriately considered - Ground 2 fails - Ground 3 proposed that the Commissioner had no evidence to support his conclusion that changes made to the proposed development were acceptable by failing to consider the likely impacts of the proposed changes - proper evidence upon which the Commissioner based his conclusion of acceptability of the changes - expert evidence on the relevant point supported the Commissioner’s conclusion as to acceptability of the changes - Ground 3 fails - failure on all three grounds requires dismissal of appeal

COSTS - costs of s 56A appeals follow the event - Council ordered to pay the Company's costs as agreed or assessed

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15(1)(d), (3A), 4.16(4) and 8.7

Land and Environment Court Act 1979, s 56A

Land and Environment Court Rules 2007, r 3.7

Wollongong Local Environmental Plan 2009

Wollongong Development Control Plan 2009

Cases Cited:

Australian Retailers Association v Reserve Bank of Australia (2005) 148 FCR 446; [2005] FCA 1707

Brimbella Pty Ltd v Mosman Municipal Council (1985) 79 LGERA 367

Cacalot Pty Ltd v Sydney City Council (1996) 90 LGRA 424

McDonald’s Australia Limited v Wollongong City Council [2021] NSWLEC 1621

McDonald’s Australia Limited v Wollongong City Council (No 2) [2021] NSWLEC 1752

McDonald’s Australia Limited v Wollongong City Council (No 3) [2021] NSWLEC 1773

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41

New South Wales Land and Housing Corporation v Orr (2019) 100 NSWLR 578; [2019] NSWCA 231

North Sydney Council v Ligon 302 Pty Ltd (No 2) [1996] 93 LGERA 23

Randwick City Council v Manousaki (1988) 66 LGRA 330

Tanious v Georges River Council [2016] NSWLEC 142

Wang v Australian Securities and Investments Commission [2019] FCA 1178

Zhang v Canterbury City Council (2001) 115 LGERA 373; [2001] NSWCA 167

Texts Cited:

Aronson, Dyer and Groves, Judicial Review of Administrative Action, 3rd ed (2004)

Category:

Principal judgment

Parties:

Wollongong City Council (Appellant)
McDonald’s Australia Limited (Respondent)

Representation:

Counsel:
Mr T To, barrister (Applicant)
Mr A Galasso SC (Respondent)

Solicitors:
Wollongong City Council (Applicant)
Allens (Respondent)

File Number(s):

11815 of 2022

Publication restriction:

No

TABLE OF CONTENTS

Introduction

The Council's appeal

The Acting Commissioner’s first decision

Introduction

The Acting Commissioner’s proposed potential ameliorative measures

The Acting Commissioner’s second decision

The Acting Commissioner’s third decision

The expert evidence before the Acting Commissioner

The statutory basis for the appeal

The appeal pleadings

The orders sought by the Council

The grounds of appeal

Introduction

Ground 1

Ground 2

Ground 3

Ground 4

Representation

The hearing

General legal principles

The evidence on appeal

The relevant planning controls

The Acting Commissioner's decision

Definitional differences

The structure for addressing Grounds 1 and 2

The written submissions on Grounds 1 and 2

The Council's written submissions on Ground 1

The Council's written submissions on Ground 2

The Company's written submissions on Ground 1 and 2

The Council's written reply submissions on Grounds 1 and 2

The oral submissions on Grounds 1 and 2

Mr To’s oral submissions on Grounds 1 and 2

Mr Galasso's oral submissions on Grounds 1 and 2

Mr To’s oral reply submissions concerning Grounds 1 and 2

Consideration of, and conclusion on, Ground 1

Consideration of, and conclusion on, Ground 2

Introduction

Ground 2.1

Ground 2.2

Introduction

The adequacy and utility of the proposed retail tenancies

Consideration of, and conclusion on, Ground 2.2

Ground 2.3

Introduction

Mr To’s oral submissions

The oral objector evidence heard by the Acting Commissioner

The relevant public submissions

The Acting Commissioner’s consideration of relevant public submissions

Consideration

Conclusion on Ground 2

Ground 3

Introduction

The Council's written submissions on Ground 3

The Company's written submissions on Ground 3

The Council's written reply submissions on Ground 3

Mr To’s oral submissions on Ground 3

Mr Galasso's oral submissions on Ground 3

Mr To’s reply submissions on Ground 3

Consideration

Introduction

Access to and egress from the site

The changes to pedestrian access

Conclusion on Ground 3

Conclusion

Costs

Orders

Judgment

Introduction

1. On 4 November 2019, McDonald’s Australia Limited (the Company) applied to Wollongong City Council (the Council) seeking to be granted development consent for a commercial development (including a new McDonald’s restaurant) on a “greenfield” site at Wongawilli, a location in the West Dapto release area.

2. On 17 July 2020, the Company commenced Class 1 proceedings pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (the EPA Act) appealing against the Council's deemed refusal of its development application.

3. The Chief Judge appointed Clay AC to hear and determine the Company’s Class 1 appeal. The Acting Commissioner heard the matter over six days, commencing on 26 July 2021, with the final hearing date on 4 August 2021.

4. On 20 October, 8 December and 17 December 2021, the Acting Commissioner gave merit decisions, with the third of them resulting in the granting of development consent to a significantly altered development proposal.

The Council's appeal

5. The Council has appealed against the decision of the Acting Commissioner to grant the development consent in the form set out in the orders to the Acting Commissioner's decision of 17 December 2021. The Council filed its Summons commencing the appeal on 14 January 2022.

6. This decision relates to this appeal, founded on questions of law said to arise from the merit determination of the Acting Commissioner to approve the revised proposed development. It is appropriate to note that this decision does not make any merit assessment of the outcome approved by the Acting Commissioner.

The Acting Commissioner’s first decision

Introduction

7. On 20 October 2021, the Acting Commissioner delivered the first of his three written decisions (McDonald’s Australia Limited v Wollongong City Council [2021] NSWLEC 1621 - the first decision). The location and details of the site where the development was proposed to be located are set out in [2] of the first decision in the following terms:

2   Within the village [of Wongawilli] and surrounded by open space to the west and north, some residential development to the east and West Dapto Road to its south is a large vacant block of land of some 8,752 sqm being lots 336 (lot 336) and 337 (lot 337) in Deposited Plan 1241313 known as 1 and 9 Raven Street, Wongawilli (site).

8. At [3], the Acting Commissioner set out the details of the development initially proposed by the Company. This proposed development was for:

•   A food and drink premises (McDonald’s) with a drive‑through facility operating 5am to midnight 7 days a week;

•   A centre-based child care facility with outdoor play area and capacity for 100 children;

•   4 commercial/retail premises with trading hours 7am - 10pm seven days;

•   Construction of 2 ingress/egress driveways, one of each on West Dapto Road and Raven Street;

•   83 car parking spaces including 3 disabled spaces;

•   Business identification signage including 2 pylon signs;

•   Communal plaza adjacent to the commercial/retail premises and a smaller communal area on the western boundary of the site;

•   Landscaping and other minor site works; and

•   Subdivision of the existing 2 lots into 3 lots.

9. The Acting Commissioner indicated in this decision that the proposed childcare centre would not warrant approval.

10. The Acting Commissioner’s first decision is one of 326 paragraphs (60 printed pages). In order to understand and consider the three grounds of appeal remaining pressed by the Council, it will be necessary to quote extensively from this decision.

11. In addition, to understand the matters raised by the Council in Ground 3, it will also be necessary to quote from the Acting Commissioner’s second decision, a decision in which he addresses the changes made by the Company to its proposed development. These changes were responsive to the Acting Commissioner’s findings in his first decision, and included responses to several specific matters advanced by the Acting Commissioner in [297] of his first decision (set out below) flagging possible responses to some of the matters which he had raised.

The Acting Commissioner’s proposed potential ameliorative measures

12. At [297] of the Acting Commissioner’s first decision, he set out four measures which he proposed might be considered for adoption and, if adopted, would, in his view, potentially resolve a number of concerns he had with respect to the proposed design of the McDonald’s restaurant and the four retail tenancies proposed to be located along the eastern boundary of the site. The relevant paragraph from the Acting Commissioner’s decision was in the following terms:

297   There are some simple steps which could be taken to render pedestrian movement acceptable:

(1)   There should be a raised walkway across the driveway from the newly created access point from the riparian zone at the southern end. This enables first, safer access from West Dapto Road in that only one road/driveway crossing is required. Second, anyone parking along the western boundary can utilise the western footpath within the site then link to that crossing rather than walk across the car park.

(2)   There should be removeable bollards at the entrance to the delivery bay and a marked crossing from the east-west spine to the plaza as expanded, so that access is defined, clear and safe. There is then a direct link between the riparian zone and both of the communal areas.

(3)   There should be a raised walkway between the north east corner of McDonald’s and the plaza. This not only enables safe and clear access between McDonald’s and the plaza, some of the patrons in the central component of the car park will find it safe and more convenient to access McDonald’s through the plaza if that is their destination.

(4)   The additional access point from the riparian zone enables a simpler access to McDonald’s and to the retail/commercial space and the plaza. For the pedestrian or cyclist coming from the south the access will be simple and direct without having to access the curtilage of McDonald’s if that is not their destination. It also operates as an encouragement to access the other facilities available at the neighbourhood centre.

13. Changes responsive to the first and third of the four proposals advanced by the Acting Commissioner as warranting consideration form part of the complaint made by the Council in Ground 3 in these appeal proceedings. To enable an understanding of the submissions advanced by the Council on this point, it is first appropriate to reproduce an element of the site plan which was the subject of the application to the Council and, subsequently, of the Acting Commissioner's observations in his first decision:

14. I next reproduce a subsequent revision plan (but marked up by me), being the one that was, relevantly, incorporated in the plans to which the Acting Commissioner granted development consent.

15. On this second plan, it can be seen that, relevantly, changes were made by the incorporation of raised pedestrian crossings in response to the Acting Commissioner’s comments at [297(1)] and [297(3)]. These are marked by me in green. In addition, I have marked, in red, the additional access on the western boundary of the site, which has been incorporated to provide access from the riparian zone to the new raised pedestrian crossing responsive to [297(1)] of the Acting Commissioner’s first decision.

16. The change made as proposed by the Acting Commissioner, in [297(2)], is also marked in brown.

17. Both the above images have been extracted from the Council’s opening written submissions for this appeal.

The Acting Commissioner’s second decision

18. Following a further hearing on 26 November 2021, the Acting Commissioner determined that he should exercise his power pursuant to s 4.16(4) of the EPA Act, finding that it would be appropriate to grant development consent to part of the Company’s development proposal but not to its entirety. The Acting Commissioner explained his reasons for reaching this conclusion in McDonald’s Australia Limited v Wollongong City Council (No 2) [2021] NSWLEC 1752 (the second decision), a decision published on 8 December 2021.

The Acting Commissioner’s third decision

19. On 17 December 2021, the Acting Commissioner published his third decision (McDonald’s Australia Limited v Wollongong City Council (No 3) [2021] NSWLEC 1773). The orders arising from this decision granted the Company development consent, subject to conditions, for the limited development proposal which the Acting Commissioner had earlier explained in his second decision was potentially approvable. The proposed childcare centre was no longer part of the proposed development.

The expert evidence before the Acting Commissioner

20. Expert evidence was before the Acting Commissioner during the hearing leading to his first decision. Those who gave evidence and their expert disciplines are set out in the table below:

Discipline	McDonald’s	Council
Urban economics	Mr M Hill	Mr M Cullen
Traffic	Mr T Rogers	Mr C McLaren
Urban design	Mr S Blaxland	Ms K Rintoul
Planning	Mr S O’Connor	Ms J Sneyd
Air quality	Mr A Todoroski

21. Written and oral expert evidence was given before the Acting Commissioner in two of the disciplines relevant to matters engaged in this appeal. The first concerned urban economics and the second was traffic and parking.

22. It will later be necessary to address elements of this evidence, as dealt with by the Acting Commissioner.

The statutory basis for the appeal

23. The Council's appeal is made pursuant to s 56A of the Land and Environment Court Act 1979 (the Court Act), a provision in the following terms:

56A   Class 1, 2, 3 and 8 proceedings—appeals to the Court against decisions of Commissioners

(1)   A party to proceedings in Class 1, 2, 3 or 8 of the Court’s jurisdiction may appeal to the Court against an order or a decision of the Court on a question of law, being an order or a decision made by a Commissioner or Commissioners.

(2)   On the hearing of an appeal under subsection (1), the Court shall—

(a)   remit the matter to the Commissioner or Commissioners for determination by the Commissioner or Commissioners in accordance with the decision of the Court, or

(b)   make such other order in relation to the appeal as seems fit.

(3)   Notwithstanding subsection (1), an appeal shall not lie to the Court under that subsection in respect of a question of law that has been referred to, and determined by, a Judge pursuant to section 36.

24. As can be seen from the terms of the provision, such appeals are confined to questions of law.

The appeal pleadings

The orders sought by the Council

25. The Summons commencing the appeal seeks the following orders:

1   Appeal allowed.

2   Orders 1 and 2 made by the court below on 17 December 2021 be set aside.

3   Remit the proceedings to a Commissioner, other than Clay AC, to be determined according to law.

4   Respondent to pay the Appellant's costs of the appeal.

The grounds of appeal

Introduction

26. The Summons commencing the appeal pleaded four grounds alleging errors made by the Acting Commissioner. Each was said to warrant the setting aside of his decision.

Ground 1

27. This ground of appeal was pleaded in the Summons in the following terms:

Ground 1 - Misconstruction or mis-application of WDCP

1.   The Commissioner erred by misconstruing and/or misapplying clause 3.7.4 of Chapter B4 of Wollongong Development Control Plan 2009 (WDCP) in that:

1.1 The Commissioner found that the proposed McDonald’s restaurant was "not a new retail development": Judgment at [256].

1.2   The finding that the McDonald’s restaurant was not 'new' (retail) was not open to be made and/or was manifestly unreasonable - the McDonald’s restaurant, and indeed all proposed components of the development, were new, as the subject site was undeveloped.

1.3   Further and in the alternative, the finding that the McDonald’s restaurant was not 'retail' was a misconstruction of clause 3.7.4, and contrary to the definitions of 'retail premises' contained in both the Wollongong Local Environmental Plan 2009 and the WDCP.

1.4   This finding led the Commissioner to not apply clause 3.7.4 to the proposed McDonald’s restaurant; rather, he considered it applied to other proposed retail components, specifically four retail/commercial tenancies.

Ground 2

28. This ground of appeal was pleaded in the Summons in the following terms:

Ground 2 - failure to make WDCP a focal point of consideration

2. The Commissioner failed to make clause 3.7.4 of Chapter B4 of the WDCP a focal point of consideration, contrary to s4.15(1)(a)(iii) of the Environmental Planning and Assessment Act 1979 (EPA Act) in that:

2.1   By reason of the errors in Ground 1 above, the Commissioner did not consider, at all, whether the proposed McDonald’s restaurant complied with, or was a form of retailing desired by, clause 3.7.4 of the WDCP.

2.2   Alternatively, the Commissioner did not consider (or make a finding about) whether the McDonald’s restaurant was a form of retailing that would meet the daily convenience needs of the surrounding residential community, despite ample evidence from objectors that it would not do so.

2.3   Further, and in the alternative, despite there being ample evidence (and the evidence only that) the McDonald’s restaurant did not comprise healthy food retailing, which evidence was accepted (Judgment at [305]), the Commissioner failed to consider this evidence in the context of clause 3.7.4 of the WDCP.

Ground 3

29. This ground of appeal was pleaded in the Summons in the following terms:

Ground 3 - no evidence of, and failure to consider likely impacts of changed aspects of the development; no evidence

3.   The Commissioner failed to consider the likely impacts of the development, as changed following the Judgment delivered on 20 October 2021, in that:

3.1 The Commissioner had found that the access points, communal areas and pedestrian/cycle paths and related infrastructure were unacceptable: summarised in Judgment at [323].

3.2 The applicant sought to invoke ss4.16(4) and 4.17(1)(g) of the EPA Act so that the Court would not approve a significant component of the proposed development, the child care centre, and to make changes to other aspects of the development to address the findings summarised at [323] of the Judgment.

3.3   Two changes proposed, and approved by the Commissioner, were raised pedestrian prioritised crossings near the entry to the site from West Dapto Road, and across the dual lane drive through facility between the proposed McDonald’s restaurant and plaza.

3.4 The Commissioner made findings on each of these matters: Judgment given on 8 December 2021 at [26]-[35].

3.5   However, there was no evidence before the Commissioner to enable him to make such findings, including on the potential for consequential queuing and impacts on the future signalised intersection and site entry at West Dapto Road, and on the safety and appropriateness of a prioritised pedestrian crossing across the dual lane drive through facility.

3.6 As a consequence, the Commissioner failed to consider the likely impacts of these changes, contrary to s4.15(1)(b) of the EPA Act.

Ground 4

30. Although the Summons commencing the appeal pleaded four grounds, in light of the fact that the written submissions in reply for the Council indicated that Ground 4 was no longer pressed, Mr To was granted leave to withdraw that ground at the commencement of the hearing on 30 May 2022. As a consequence, that matter requires no further consideration.

Representation

31. The Council was represented by Mr T To, barrister, whilst the Company was represented by Mr A Galasso SC. Each of the advocates provided helpful and concise written submissions. As a consequence, it will be appropriate later to reproduce the relevant elements of the parties’ written submissions on each of the grounds of appeal, as well as summarising the oral submissions made on behalf the parties.

The hearing

32. The hearing was set down for a single day, based on the parties’ estimate that this would be sufficient time for it to be completed. Unfortunately, this proved not to be the case, so that, in addition to the hearing on 30 May 2022, two further short hearings were necessary. The first of them, on the morning of 7 June 2022, gave Mr Galasso the opportunity to complete the submissions which he had commenced on the first day. The second, on 9 June 2022, enabled Mr To to respond to Mr Galasso's submissions.

General legal principles

33. During the course of his submissions on behalf of the Company, Mr Galasso took me to the judgment of Bell P (as the Chief Justice then was) in New South Wales Land and Housing Corporation v Orr (2019) 100 NSWLR 578; [2019] NSWCA 231 (Orr), at [70] to [77], where his Honour set out principles concerning how decisions by tribunals were to be considered when being reviewed on appeal as to whether errors of law were disclosed in the reasoning process of the primary decision‑maker. The (then) President said:

70   As to the latter parameter identified by Basten JA in Resource Pacific, namely the quality of reasons, it is generally accepted that the sheer volume of work undertaken by tribunals is such that a perhaps more relaxed standard of review of reasons with corresponding compensation for linguistic infelicities is appropriate than may be the case when an appellate court is hearing an appeal from another court.

71 That having been said, even in the less formal setting of a tribunal which has significant powers the exercise of which is capable of affecting the lives of citizens in profound ways, there are certain minimum characteristics that a Tribunal’s reasons must possess. These are really supplied, in relation to the Tribunal, by s 62(3) of the CAT Act which, as noted at [52] above, requires there to be set out in reasons (when requested by a party):

(a)   the findings on material questions of fact, referring to the evidence or other material on which those findings were based,

(b)   the Tribunal's understanding of the applicable law, and

(c)   the reasoning processes that lead the Tribunal to the conclusions it made.

72   Whilst s 62(3) provides a useful starting point, it still leaves for consideration the question as to the quality and detail of the reasoning process that must be exposed.

73 In this context, in Cypressvale Pty Ltd v Retail Shop Leases Tribunal [1996] 2 Qd R 462 at 477; [1995] QCA 187, Fitzgerald P said of the Queensland Retail Shop Leases Tribunal, adapting the language of Samuels JA in the unreported decision of this Court in Strbak vb Newton (Court of Appeal (NSW), Samuels JA, 18 July 1989, unrep) (Strbak), cited in Xuereb v Viola (1988) 18 NSWLR 453 at 469, that, while such a tribunal:

“might not be required to ‘submit the material before [it] to the most meticulous analysis and carry into [the reasons for its decisions] a detailed exposition of every aspect of the evidence and the arguments ...’ or ‘... incorporate an extended intellectual dissertation upon the chain of reasoning ...’, at least ‘a basic explanation of the fundamental reasons which led the [Tribunal] to [its] conclusion ...’ is necessary”.

It should be noted that Samuels JA in Strbak had been describing the duty of a District Court judge to give reasons as opposed to that of a tribunal member.

74   In Tatmar at 386, Mahoney JA (as he then was) observed in the context of the obligation to give reasons for a discretionary judgment that it was not necessary for a judge:

"who is exercising a discretionary judgment to detail each factor which he has found to be relevant or irrelevant, or to itemi[s]e, for example, in the assessment of damages for tort, each of the factual matters to which he has had regard: see O'Hara v Evans (Court of Appeal, 23rd September, 1976, unreported; Colacicco v Colacicco (Court of Appeal, 15th March, 1977, unreported). ... Nor is a judge required to make an explicit finding on each disputed piece of evidence. It will be sufficient, if the inference as to what is found is appropriately clear: see Selvanayagam v University of the West Indies [1983] 1 WLR 585, at 587, 588; [1983] 1 All ER 824 at 826.

But, subject to matters such as these, the basis of the decision of a trial judge or of an intermediate court of appeal should be made apparent. This does not mean that the reasons given need to elaborate: an elaborate argument may not require an elaborate answer. Reasons need be given only so far as is necessary to indicate to the parties why the decision was made and to allow them to exercise such rights as may be available to them in respect of it."

75 To like effect, in Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Secretary of the Treasury [2014] NSWCA 112 at [46], Basten JA said:

“Generally, the concept of ‘reasons’ requires an explanation connecting any findings of fact with the ultimate decision. Where the legal test to be applied involves an evaluative judgment, it may well not be practicable to provide a detailed articulation as to how specified (and conflicting) factors have been weighed in the balance; the scope of the obligation must recognise that constraint. (A different question arises if mandatory considerations have not been identified.)” (emphasis added)

76   What constitutes adequate reasoning on the part of a tribunal is also informed, in my opinion, by statements from well-known administrative law decisions relating to the limits of judicial review and the need for practical as well as principled restraint in that context: Pozzolanic at 287.

77   These principles include the following:

(i) “Decision-makers commonly express their reasons sequentially; but that does not mean that they decide each factual issue in isolation from the others. Ordinarily they review the whole of the evidence, and consider all issues of fact, before they write anything. Expression of conclusions in a certain sequence does not indicate a failure to consider the evidence as a whole”: Re Minister for Immigration and Multicultural Affairs, Re; Ex parte Applicant S20/2002; Appellant S106/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 30; 77 ALJR 1165 per Gleeson CJ at [14] (Ex parte Applicant);

(ii) the court should not read passages from the reasons for decision in isolation from others to which they may be related: Re Maria Politis v Commissioner of Taxation [1988] FCA 739 at [14]; 20 ATR 108 at 111;

(iii)   the reasons must be read fairly and as a whole: Ex parte Applicant at [147] per Kirby J; Wu Shan Liang at 291; Bisley at 251;

(iv) the reasons recorded ought not to be inspected with a fine tooth-comb attuned to identifying error: Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287; [1993] FCA 456 (Pozzolanic) at 287; Wu Shan Liang at 272, 291;

(v)   there should be a degree of tolerance for looseness in the language of the tribunal, unhappy phrasing of the tribunal's thoughts or verbal slips: Pozzolanic at 287, Wu Shu Liang at 272 and 291.

34. Mr Galasso also took me to the judgment of Pepper J in Tanious v Georges River Council [2016] NSWLEC 142 (Tanious), where her Honour set out, at [10], the following propositions concerning s 56A appeals (citations omitted):

10   Prior to examining the Commissioner’s decision, it is worth recalling the principles according to which this appeal falls to be determined:

first, the appeal is only concerned with errors or questions of law and not questions of fact;

second, an overly critical examination of the Commissioner’s decision for relevant error should not be employed. The Commissioner’s reasons for the decision must therefore be read as a whole and considered reasonably. A “verbal slip or infelicity of expression does not necessarily warrant drawing and inference of an error of law”;

third, the Commissioner must give adequate reasons for her decision. This means that she must refer to evidence that is important or critical to the determination of the principal or central issues in the case. This does not mean, however, that every argument advanced by a party in support of these issues must be considered by the Commissioner or reasons given for accepting or rejecting it;

fourth, and as corollary to the principle above, if the decision of the Commissioner reveals an error on a question of law, the decision is only vitiated if the error is material to the decision made (; and

fifth, an error will not be material to the decision if the matter complained of on appeal was a matter that was not the subject of submissions made to the Commissioner below in a way that called for a reasoned consideration of that matter. A party is bound by the way it conducted its case at the hearing.

35. I also set out below three other relevant legal principles concerning appeals made pursuant to s 56A of the Court Act against decisions of commissioners. These are:

1. A commissioner’s reasons for decision must not be read with a “fine tooth comb” - Brimbella Pty Ltd v Mosman Municipal Council (1985) 79 LGERA 367 at 368;

2. Any error of law asserted (and established) will not have the effect of reversing the decision of a commissioner unless the error of law had a material effect on the decision. The error must be one upon which the decision depends - that is, any error must be one which is both material and vitiates the decision - Cacalot Pty Ltd v Sydney City Council (1996) 90 LGRA 424 at 430);

3. A perverse or unreasonable finding of fact will not constitute an error of law - Randwick City Council v Manousaki (1988) 66 LGRA 330 at 333).

36. It is also appropriate to note that, whilst the Acting Commissioner did not expressly reference Zhang v Canterbury City Council (2001) 115 LGERA 373; [2001] NSWCA 167 (Zhang) as a basis for the approach he should take to the development control plan (Wollongong Development Control Plan 2009 – the DCP), the Acting Commissioner said, at [243] and [244]:

243   WDCP 2009 is a focal point of the assessment of the DA. Its role is to serve WLEP 2009 and not to derogate from it.

244   The task is to identify what are the relevant controls and objectives of WDCP 2009 and determine whether the proposal meets them, or if not whether the departure is such that consent should be refused.

37. In shorthand terms, these paragraphs encapsulated the broad role of a development control plan as described in Zhang, at [75], and the obligations of a decision‑maker (here the Acting Commissioner) consistent with that role. Indeed, in the course of his oral submissions, Mr To acknowledged that the Acting Commissioner had correctly identified the role of the DCP and how he was to consider it in his decision‑making process (Transcript 30 May 2022, lines 19 to 24).

The evidence on appeal

38. The evidence for the appeal was entirely documentary, comprising three lever‑arch files of material (totalling 1828 folios), together with a chronology. The three folders of documents became Exhibits A, B and C, with the chronology becoming Exhibit D.

39. Amongst this material, it is to be noted, were relevant plans. The first was a set of plans, in Exhibit B at folios 623 to 679. These were the plans which had provided the foundation for the development application which had been lodged with the Council.

40. Exhibit C, at folio 1826, was the amended site plan (180109 SK01 Rev D) to which the Acting Commissioner gave development consent as the outcome of his third decision. This is the plan earlier reproduced at [12]. This plan had been amended in a fashion responsive to the matters raised by the Acting Commissioner in [297] of his decision. This paragraph of the Acting Commissioner's decision, and the plan amendments proposed by the Company as being responsive to the matters suggested by the Acting Commissioner, has been earlier set out.

41. In addition to the plans noted above, it is also appropriate to note that the documentary evidence included:

• the three decisions given by the Acting Commissioner in these proceedings (part of Exhibit A);

• the complete transcript of the hearing before the Acting Commissioner (contained in Exhibit A);

• the Wollongong Local Environmental Plan 2009 (the LEP) (contained in Exhibit B); and

• Relevant elements of the DCP (contained in Exhibit B).

42. It is to be noted that the amended site plan referred to above at [35] not only contained amendments responsive to the matters proposed by the Acting Commissioner, in [297] of his first merit decision, but also deleted the entirety of the preschool centre element advanced by the Company in its original development application. The originally proposed development was to take place across both the B1‑ and R2‑zoned elements of the site.

43. However, the removal of the childcare centre (proposed to be located on the northern portion of the site and straddling the two different zones - it being permissible in each of those zones with development consent) meant that the McDonald’s restaurant and associated parking and drive‑through service facilities, together with the four proposed 150‑square‑metre retail tenancies in the elbow of the West Dapto Road and Raven Street intersection, were to be located entirely within the B1 zone. It is to be noted that the consequence of this meant that, for these appeal proceedings, only the zone objectives of the B1 zone are potentially engaged.

The relevant planning controls

The Acting Commissioner's decision

44. The Acting Commissioner set out comprehensively, between [71] and [144] of his first decision, the detail of all the potentially relevant elements of the LEP and the DCP (as were the relevant provisions of the latter document as at the date of his first decision). It is not necessary to set out the entirety of this detailed analysis.

45. In particular, the Acting Commissioner set out all the relevant provisions in chs B and D of the DCP, noting, at [103], what is to be described as the “override” provision in the introduction to ch B of the DCP - one having, here relevant, the effect of giving primacy to the West Dapto‑specific provisions of ch D over other general provisions in the DCP, including but not confined to ch B. As this potentiality is engaged by, and requires consideration in, these appeal proceedings, it is appropriate, at this point, to set out, specifically, the terms of the override contained in the fifth paragraph of the introduction to ch D of the DCP. The paragraph (with the Acting Commissioner’s added emphasis in [103] of his first merit decision) is in the following terms:

Additionally, Part D of the DCP includes the Locality based/Precinct planning controls for the certain areas which override any controls contained in this chapter of the DCP, in the event of any inconsistency between Part D of the DCP and this chapter of the DCP.

Definitional differences

46. A matter which will later require consideration, in the context of submissions advanced on behalf of the Company, is the difference between relevant definitions of the same term contained in the Dictionary to the LEP and in Appendix 4 - Definitions of the DCP.

47. Although the definitions of these terms differed between the LEP and DCP, it was the Council's position that there was no inconsistency between them and that the differences played no relevant role in these proceedings.

48. The first of these pairings of definitions is that of “retail premises”. The LEP definition of this term is:

retail premises means a building or place used for the purpose of selling items by retail, or hiring or displaying items for the purpose of selling them or hiring them out, whether the items are goods or materials (or whether also sold by wholesale), and includes any of the following;

(a)    (Repealed)

(b)   cellar door premises,

(c)   food and drink premises,

(d)   garden centres,

(e)   hardware and building supplies,

(f)   kiosks,

(g)   landscaping material supplies,

(h)   markets,

(i)   plant nurseries,

(j)   roadside stalls,

(k)   rural supplies,

(l)   shops,

(la)   specialised retail premises,

(m)   timber yards,

(n)   vehicle sales or hire premises,

but does not include highway service centres, service stations, industrial retail outlets or restricted premises.

49. The DCP definition of this term is:

Retail Premises: Means a building or place used for the purpose of selling items by retail, or for hiring or displaying items for the purpose of selling them by retail or hiring them out, whether the items are goods or materials (or whether also sold by wholesale).

50. As can be seen, the two definitions are not in identical terms.

51. The next pairing of definitions is those of “food and drink premises”. The definition in the LEP is in the following terms:

food and drink premises means premises that are used for the preparation and retail sale of food or drink (or both) for immediate consumption on or off the premises, and includes any of the following—

(a)   a restaurant or cafe,

(b)   take away food and drink premises,

(c)   a pub,

(d)   a small bar.

52. The definition in the DCP is in the following terms:

Food and Drink Premises: Means retail premises used for the preparation and retail sale of food or drink for immediate consumption on or off the premises, and includes restaurants, cafes, take away food and drink premises, milk bars and pubs.

53. As can also be seen, these two definitions are also not in identical terms.

The structure for addressing Grounds 1 and 2

54. Before turning to Grounds 1 and 2 in detail, it is convenient to explain how I am going to address them. This is because Mr To, in his oral submissions, addressed Grounds 1 and 2 in a composite fashion, as did Mr Galasso in both his written and oral submissions. However, in the Council’s written submissions, Grounds 1 and 2 were addressed separately.

55. It is, therefore, appropriate to address these two grounds (the chapeau to Ground 2 making it clear that it was contingent on my conclusion on Ground 1) - although, as can later be seen, some differential consideration of subground 2.3 is necessary.

56. As a consequence, I have concluded that the appropriate course is to set out the written submissions on Grounds 1 and 2 for the Council under separate headings before setting out the composite written submissions for the Company on these two grounds. After the Company's composite written submissions, I have set out the Council's written reply submissions concerning Grounds 1 and 2. These sections of this judgment are then followed by my summary of the oral submissions concerning Grounds 1 and 2. Finally, I set out, in separate sections, my analysis of, and conclusions concerning, each of Grounds 1 and 2.

The written submissions on Grounds 1 and 2

The Council's written submissions on Ground 1

57. The Council’s submissions on Ground 1 were (footnotes omitted):

17.   Chapter B4 of the WDCP relates to Development in Business Zones.

18.   Clause 3.7.4 in Chapter B4 of the WDCP states:

Any new retail development within any of the village centre shall be limited to retailing activities and services which provide for the daily convenience needs of the surrounding residential community, especially healthy food and grocery retailing. This may include small supermarkets / retail grocery stores, butcher shops, fruit and vegetable retailers, bakeries, newsagents, hairdressing salons, dry cleaning shops etc.

19.   An issue in the proceeding was whether the proposed development in the village centre would comply with clause 3.7.4 in that it would not be limited to activities and services providing for the ‘daily convenience needs of the surrounding residential community, especially healthy food and grocery retailing’. This was particularly because of a dominance of the McDonald’s component of the proposed development, against the unspecified but limited (in floor area, number and thus variety) space available for other retailing. That the food offering by McDonald’s was not healthy food retailing and does not meet the needs of the surrounding residential community was a substantial point made through objector submissions - including those made by the NSW Department of Health and a number of local medical practitioners.

20.   Acting Commissioner Clay disposed of this argument by finding that “[t]he food and drink premises (McDonald’s) is not a new retail development…”and therefore concluded that clause 3.7.4 did not apply to the McDonald’s food and drink premises which he considered to be “other than retail development”. This was a clear error in the construction of the class term, ‘retail development’, for the reasons stated below. The Acting Commissioner repeated the error that a food and drink premises is not retail stating “There is no question that a proponent can seek a non-retail use such as food and drink premises… and also provide other uses to meet the needs of the local living and working population…”(underlining added).

21.   The finding that the proposed McDonald’s is not ‘retail’ is plainly contrary to defined terms in the Dictionary of the WLEP and in the Definitions of the WDCP.

22.   In the Dictionary to the WLEP:

(a)   ‘retail premises’ includes a ‘food and drink premises’;and

(b)   ‘food and drink premises’ includes a ‘take away food and drink premises’.3

23.   In Appendix 4: Definitions to the WDCP:

(a)   “Retail Premises: Means a building or place used for the purpose of selling items by retail, or for hiring or displaying items for the purpose of selling them by retail or hiring them out, whether the items are goods or materials (or whether also sold by wholesale).”

(b)   “Food and Drink Premises: Means retail premises used for the preparation and retail sale of food or drink for immediate consumption on or off the premises, and includes restaurants, cafes, take away food and drink premises, milk bars and pubs.”

24.   It is clear that the proposed McDonald’s is a ‘food and drink premises’ and therefore, under the terms of the WLEP and the WDCP, is a ‘retail premises’. As a ‘retail premises’, the proposed McDonald’s food and drink premises is clearly a ‘retail development’. The proposed McDonald’s food and drink premises is also self-evidently ‘new’, not having yet been constructed.

25.   While it is clear, from the matters set out in paragraph 20 above, that the Acting Commissioner concluded that clause 3.7.4 did not apply to the proposed McDonald’s food and drink premises because it was not ‘retail’, there might be a suggestion by McDonald’s that the Acting Commissioner also considered that clause 3.7.4 applies only to existing villages and not to Wongawilli Village as a planned village.

26.   The Acting Commissioner explored this proposition during the hearingand it was a proposition that, though not initially advanced by McDonald’s, was embraced by McDonald’s.3 In the judgment on 20 October 2021, the Acting Commissioner states that clause 3.7.4:

on its face deals with the existing Village Centres, including how further development within a centre should be carried out in the future. The Council says that this clause is an important indicator of how development of the Wongawilli Village Centre should be carried out, albeit there is no existing village centre.”

27.   More than this, Council submitted that clause 3.7.4 is a prescriptive control that applies to the Wongawilli Village and must be complied with.

28.   Council’s submission, that clause 3.7.4 is a prescriptive control that applies to both existing and proposed villages takes a purposive approach to construction of the WDCP as an environmental planning instrument. As stated by McColl JA in Cranbrook School v Woollahra Council (2006) 66 NSWLR 379 at [36]:

Environmental planning instruments are a species of delegated legislation, a statutory instrument… and should be interpreted in accordance with the general principles of statutory interpretation… A construction should be preferred that is consistent with the language and purpose of all the provisions of such instruments…

29.   Council’s proposed construction of clause 3.7 (as applying to both existing and new villages) takes account of the ‘mischief’ that the WDCP seeks to address in ensuring appropriate planning for village centres. It would be a nonsense to seek to construe clause 3.7 narrowly so as to apply only to existing villages, and not to apply those same controls to land clearly identified in land use planning instruments and guidelines as being for the purpose of creating a village. It would have the effect of fixing the application of Chapter B4 to a point in time, to apply only to existing but not future village development. Such an interpretation would lead to absurdity. This would undermine the policy intent of the WDCP which includes, as stated in paragraph 3.2.6 of Chapter B4 of the WDCP, “Small Villages (Local Convenience Centres)” that “Primarily provide for the daily convenience needs of the surrounding residential population for each suburb”.

30.   Acting Commissioner Clay erred in finding that clause 3.7.4 of the WDCP does not apply to the proposed McDonald’s food and drink premises. The ground should be upheld. This error led to the error in round 2, next set out below.

The Council's written submissions on Ground 2

58. The written submissions for the Council on Ground 2 were (footnotes omitted):

Ground 2 - failure to make WDCP a focal point of consideration

31. In determining the development application, the Acting Commissioner was required, under section 4.15(1)(a)(iii) of the EPA Act, to take into consideration the provisions of the WDCP, including clause 3.7.4 of Chapter B4 of the WDCP.

32.   Further, in accordance with the principles enunciated by the Court of Appeal in Zhang v Canterbury City Council [2001] NSWCA 167, the Acting Commissioner was required to treat the WDCP as a “fundamental element in, or a focal point of, the decision making process”. The Acting Commissioner notes the “WDCP is a focal point of the assessment of the DA”.

33.   As a consequence of the misconstruction of clause 3.7.4 of Chapter B4 of the WDCP, the Acting Commissioner did not consider at all whether the proposed McDonald’s food and drink premises, as new retail, satisfied the requirements of clause 3.7.4. The operation of clause 3.7.4 with respect to the proposed McDonald’s food and drink premises was not the subject of any consideration, and was not a ‘fundamental element’ or ‘focal point’ of the Acting Commissioner’s decision making process.

34.   The Acting Commissioner found that “proper consideration of WDCP 2009 is to give greater weight to the site specific and locality controls or objectives”. Such a statement is unexceptional. However, the Acting Commissioner gave no consideration to clause 3.7.4, properly construed, for the reasons set out earlier. Instead, in substance the Acting Commissioner applied a test other than as set out in clause 3.7.4 in considering the McDonald’s food and drink premises. In this way, the Acting Commissioner failed to make clause 3.7.4, properly construed, a focal point for consideration.

35.   In finding (erroneously) that the proposed McDonald’s food and drink premises was not a new retail development, the Acting Commissioner’s reasoning wrongly separated the consideration of satisfaction of the daily convenience needs by excluding the proposed McDonald’s from that question, and did not consider whether the McDonald’s food and drink premises would in fact meet the daily convenience needs of the surrounding residential community as required under clause 3.7.4. Rather, the Acting Commissioner considered that satisfying daily convenience needs, as required under clause 3.7.4, was a matter for only the other parts of the proposed development:

The food and drink premises (McDonald’s) is not a new retail development, rather the retail/commercial space is intended to fulfill that role of providing convenience needs.47

36.   As set out in paragraph 2.3 of the Summons,as a consequence of the misconstruction of clause 3.7.4 of Chapter B4 of the WDCP, the Acting Commissioner failed to consider, in the context of clause 3.7.4, the evidence from objectors that the McDonald’s food and drink premises did not meet the needs of the surrounding residential community and did not represent healthy food retailing. This is despite the Acting Commissioner accepting the evidence of concerns by objectors that the proposed McDonald’s food and drink premises did not meet the need of surrounding residents and did not represent healthy food retailing, noting that this evidence did not represent expert evidence. There was no contrary evidence.

37. The Acting Commissioner did not make any finding that this evidence was to be accorded no weight, (and, it is contended, it would not have been open to him to do so, given the absence of any expressed reasoning to such a conclusion, or contrary evidence). The only relevant evidence was the objectors’ evidence that the development did not offer “healthy food… retailing” and that it did not meet the community’s “daily convenience needs.” Thus, on the proper construction and application of clause 3.7.4 of the WDCP, it was likely that a finding on the evidence would have been made that the proposed development was inconsistent with the clause. It cannot be said that such a finding could not have been material to the outcome of the merit appeal, potentially resulting in a refusal of the appeal as tentatively indicated in Judgment No 1, rather than the course taken in exploring excision of and changes to components using powers under s4.16(4) and 4.17(1)(g) of the EPA Act.

38.   The Court should conclude Ground 2 is made out.

The Company's written submissions on Ground 1 and 2

59. The Company's written submissions on Ground 1 and 2 were in the following terms:

Grounds 1 and 2

3.1   In Grounds 1 and 2 of the Summons, Council asserts that the Acting Commissioner erred by misconstruing and/or misapplying clause 3.7.4 of Chapter B4 of Wollongong Development Control Plan 2009 (WDCP) and that as a consequence the Acting Commissioner failed to make the WDCP a focal point of consideration.

3.2   Clause 3.7.4 in Chapter B4 of the WDCP is in the following terms:

3.7   Village Centres

…

4.   Any new retail development within any of the village centre [sic] shall be limited to retailing activities and services which provide for the daily convenience needs of the surrounding residential community, especially healthy food and grocery retailing. This may include small supermarkets / retail grocery stores, butcher shops, fruit and vegetable retailers, bakeries, newsagents, hairdressing salons, dry cleaning shops etc. (emphasis added).

3.3   McDonald's disputes this ground of appeal and says that no error of law is demonstrated. Rather, the Council's position goes to the way in which the Acting Commissioner engaged with a single provision of the WDCP which is not a vitiating error of law and therefore beyond the jurisdiction of the Court in these appeal proceedings.

3.4   There is no statutory requirement that provisions of a development control plan must be strictly complied with, nor that a Commissioner of the Court is bound to follow those provisions. They are not mandatory requirements and instead are to be applied flexibly and allow reasonable alternative solutions that achieve the objects of the standards.

3.5   The Council's assertion at [28] of its written submissions that the WDCP is an environmental planning instrument is incorrect. The Environmental Planning and Assessment Act 1979 (NSW) (EP&A Act) contains the following definition of 'environmental planning instrument':

Environmental planning instrument means an environmental planning instrument (including a SEPP or LEP but not including a DCP) made, or taken to have been made, under Part 3 and in force. (emphasis added).

3.6   It was accepted between the parties during the hearing before the Acting Commissioner that relevant provisions of a development control plan are required to be taken into consideration in determining a development application and are to be a focal point in the assessment of a development application.

3.7   Indeed, it is abundantly clear from the transcript of the hearing that the provisions of Chapters B4 and D16 of the DCP were a focal point in the proceedings with the vast majority of opening and closing submissions of both parties directed towards the relevant provisions of the WDCP. The expert evidence also engaged with the relevant provisions of the WDCP, including in the Traffic Joint Report and the Town Planning Joint Report.

3.8   Specific consideration was given to clause 3.7.4 of Chapter B4 of the WDCP in the parties' submissions at hearing.

3.9   What is plain from the submissions made on behalf of McDonald's during the hearing is that:

(a)   the relevant provisions of the WDCP are non-prescriptive;

(b)   clause 3.7.4 of Chapter B4 of the WDCP is to be considered with regard to the following factors:

(i)   the specific provisions relevant to the West Dapto Urban Release Area, including provisions specific to the subject site, are contained in Chapter D16 of the WDCP which 'override any controls contained in [Chapter B4] of the DCP, in the event of any inconsistency';

(ii)   that clause 3.7 of Chapter B4 of the WDCP does not refer to 'Wongawilli' as one of the 'Village Centres' to which the clause applies (with provisions specific to Wongawilli and the subject site contained in Chapter D16 of the WDCP which was inserted into the WDCP subsequent to Chapter B4); and

(iii)   the expert evidence of the Council's urban economic expert in which it was apparent that Figure 21 of the WDCP (being specific to the subject site) emanates from a point in time and a body of assessment that effectively disconnected between his recommendation for larger villages and the controls for smaller villages that are in the suite of controls; and

(c)   to the extent that clause 3.7.4 of WDCP did apply to the proposed development, the terms of clause 3.7.4 were inconsistent with:

(i)   the applicable permissible uses and zone objectives under the Wollongong Local Environmental Plan 2009 (WLEP); and

(ii)   the site specific provisions within Chapter D16 of the WDCP; and should properly be read down on that basis.

3.10   These matters were summarised in the closing submissions on behalf of McDonald's as follows:

…this was the reference to ch B4 and ch B6 of the DCP. Can we note - the first submission is ch B4 comprises the broad components of controls within the development control plan. We would submit that the proposal is not inconsistent with those controls. In fact, I took you to s 3.7 in terms of the use of the word "daily", which, on our submission, doesn't change or add anything of substance and, secondly, that ch D16, on any view of it, is the more specific control, so you've got a hierarchy, as it were, of the specific controls, particularly for Wongawilli versus the overall controls. Except this, though, that the council attempted to submit that in the B4 chapter, para 3.7, in particular, subpara (4) was prescriptive by the use of the phrase "shall be limited". A number of things to note about that. First of all, on a proper reading of the whole DCP, it doesn't operate that way. Secondly, but most importantly, if it is prescriptive, it's prescriptive in a limiting sense and that is, in fact, at odds with the objectives of the zone in the LEP and you would, therefore, read back those provisions of the DCP.

Next, we satisfy the limitation in 3.7(4) in any case and, next, to note that it doesn't say that, notwithstanding the prescription, if it be prescription - we don't accept that it is - it doesn't say that it cannot also be providing services or goods for other than the surrounding residential community, that is, it may say so, that is, you have got to achieve it, but it doesn't say you can't achieve anything more. In any case, we can observe that Wongawilli is not one of - and we would respectively [sic] embrace the Court's observation that it is, that is, those five or so paragraphs, are, in fact, talking about the pre-existing centres. You get that from the fact that Wongawilli is not referenced in subpara (2), but Horsely is and you observe that Horsely was part of a more historic residential development area and the reason why Wongawilli is not in subpara (2) is because ch D16 relates to a release area, that is, in reality, the DCP took a snapshot of what existed at the time of the preparation of the DCP and what has come out is or are a series of controls for release areas, that is, the whole of ch D16 is about historically rural lands that have been allowed to be rezoned to residential and business centres and none of the D16 centres are, in fact, in ch B4. So, when you look at Darkes Road, Wongawilli and the other release area centres in D16, they are, in fact, not specifically picked up in B4 and that's why you won't get the same visitation in terms of the centres in D16 as B4.

3.11   The above matters were considered in detail by the Acting Commissioner. McDonald's therefore disputes the Council's assertion at [33] of its written submissions that clause 3.7.4 of the WDCP was not a focal point in the Acting Commissioner's consideration.

3.12   McDonald's submits that it was therefore open on the facts for the Acting Commissioner to find that:

(a)   clause 3.7 of the WDCP on its face deals with the existing Village Centres rather than proposed future centres in urban release areas;

(b)   Chapter D16 of the WDCP is a comprehensive plan for the West Dapto Release Area (including the subject site) which in some respects is inconsistent with the lower-order provisions in Chapter B4 of the WDCP; and

(c)   greater weight is to be given to the site specific and locality controls or objectives, which are intended to facilitate the achievement of, or at least be consistent with, the earlier more general controls, objectives and principles in the chapter dealing with the West Dapto Release Area.

3.13   Whilst Council in its written submissions asserts at [29] that "it would be a nonsense to seek to construe clause 3.7 narrowly so as to apply only to existing villages", the fact is that Chapter B4 of the WDCP predated the commencement of Chapter D16 which relates specifically to the West Dapto Urban Release Area and the subject site. Accordingly, McDonald's submits that it is entirely logical for those provisions to have been drafted with respect to the villages that existed at that time whilst strategic studies were being undertaken to inform separate chapters of the WDCP in relation to the various urban release areas.

3.14   Further, to the extent that the Council asserts at [35] of its written submissions that the Acting Commissioner "wrongly separated the consideration of satisfaction of the daily convenience needs…", this is disputed by McDonald's on the basis that the Acting Commissioner correctly approached this question by reference to the higher order zone objectives within the WLEP and site specific provisions within Chapter D16 of the WDCP.

3.15   Th relevant objectives of the B1-Neighbourhood Centre zone in the WLEP are:

Objectives of zone

•   To provide a range of small-scale retail, business and community uses that serve the needs of people who live or work in the surrounding neighbourhood.

•   To allow for residential accommodation and other uses while maintaining active retail, business or other non-residential uses at the street level.

3.16   The first objective relevantly refers to retail uses that 'serve the needs of people who live or work in the surrounding neighbourhood'. There is no mention of providing 'daily convenience needs' as that phrase is used in clause 3.7.4 of Chapter B4 of the WDCP.

3.17   Indeed, permissible with consent in the B1 zone are 'commercial premises' which relevantly includes 'shops'. Although it was open to the Council to limit the types of retail premises within the B1 zone to only 'neighbourhood shops' and 'neighbourhood supermarkets' (both of which being specifically defined terms) it did not do so.

3.18   Separately, Chapter D1 and D16 of the WDCP contain provisions specifically relevant to the subject site and do not refer to any need to provide 'daily convenience needs'. Relevantly:

(a)   Chapter D1, clause 3.50 describes the desired future character of a future village at Wongawilli to include 'a small local convenience centre on West Dapto Road which will provide for the convenience needs of the surrounding population'; and

(b)   Chapter D16, clauses 14.3.3 contains provisions relevant to the subject site, namely that 'Wongawilli Village centre will provide a small convenience centre with a small grocer and some mixed retail shops…'.

3.19   As observed by McClellan CJ in LEC in BGP Properties v Lake Macquarie City Council, in the ordinary course, where by its zoning land has been identified as generally suitable for a particular purpose, weight must be given to that zoning in the resolution of a dispute as to the appropriate development of any site. Planning decisions must generally reflect an assumption that, in some form, development which is consistent with the zoning will be permitted.

3.20   McDonald's submits that no error of law is demonstrated in the approach taken by the Acting Commissioner, which was relevantly summarised in the judgment as follows:

[260]   I begin this analysis on the basis that the McDonald's food and drink premises (including the drive through) is a permissible use and that it is not inconsistent with the objectives of the B1 zone. Inherent in that proposition is that the provisions of the WDCP 2009 cannot be read to prohibit uses which are permissible with consent. WDCP 2009 of course assists in determining whether the form of the whole of the development is acceptable.

3.21   Accordingly, Grounds 1 and 2 of the Appellant's Summons have not been made out and should be dismissed.

The Council's written reply submissions on Grounds 1 and 2

60. As the Company had addressed Grounds 1 and 2 in a combined fashion in its written submissions, the Council's written reply submissions responded in a combined fashion. The Council’s reply submissions on these two grounds were (paragraph numbering as in original):

Grounds 1 and 2

3.   Notably, the Respondent does not suggest the Acting Commissioner was correct in his construction and application of clause 3.7.4 to the proposed McDonald’s food and drink premises. It clearly was not.

4.   At paragraph 3.12 of the ROS, the Respondent asserts that clause 3.7.4 was a focal point in the Acting Commissioner’s consideration. This elides the point that if clause 3.7.4 was misconstrued, the Acting Commissioner failed to consider clause 3.7.4, properly construed.

5.   This is the error of law.

6.   At paragraph 244 of the Judgment, the Acting Commissioner correctly identified the task for the Court with respect to the WDCP.

7.   At paragraph 260 of the Judgment, the Acting Commissioner observed the proposed McDonald’s food and drink premises was a permissible land use, and that the WDCP would assist in determining whether the proposed development was acceptable. This is uncontroversial.

8.   The second observation in paragraph 260 was an observation in the abstract - there was no suggestion by Council (as respondent to the Class 1 proceedings) that the WDCP (and specifically clause 3.7.4) did, or could, prohibit a permitted land use.

9.   Nor was there any finding by the Acting Commissioner that clause 3.7.4 had any such effect. The appeal was simply not determined this way.

10.   In respect of these grounds, the ROS seeks to describe various submissions the Respondent put to the Acting Commissioner. None of them bear directly on the error of law in the misconstruction of clause 3.7.4.

11.   At paragraph 3.12 of the ROS the Respondent submits it was open to the Acting Commissioner to make certain findings. Leaving aside the issue that not all of the findings as set out at paragraph 3.12 were in fact made, the submission does not address the error of law in the misconstruction of clause 3.7.4.

12.   The ROS appears to suggest the appeal was decided in accordance with what the Respondent submitted, viz:

(a)   clause 3.7.4 of Chapter B4 of the WDCP is inconsistent with the applicable permissible uses, and zone objectives, and the site specific provisions in Chapter D16 of the WDCP;

(b)   the Acting Commissioner considered that inconsistency; and

(c)   the Acting Commissioner resolved the inconsistency by giving greater weight to the zone objectives or site specific provisions than to clause 3.7.4.

13.   However, this argument cannot be sustained. Put simply, the Acting Commissioner did not consider clause 3.7.4 to not apply because its scope was limited to an existing village, nor did he disapply or read down clause 3.7.4 to resolve any claimed inconsistency in the manner claimed; but rather found that clause 3.7.4 did not apply to the McDonald’s food and drink premises because he erroneously considered that a food and drink premises was not a retail development.

14.   Had the Acting Commissioner found, as he should, that clause 3.7.4 applied because the McDonald’s food and drink premises was retail development, he would have had to consider if the development complied with the clause, as well as other provisions of WDCP. But these steps never arose for consideration, because of the misconstruction - and it cannot be assumed that the result of that consideration could not have altered the outcome of the appeal.

4.   In respect of the submissions in the ROS that Chapter B4 of WDCP was intended to apply only to existing, and not future, villages, as it is of some importance to the operation of the WDCP generally beyond these proceedings, Council notes that:

(a)   The Introduction to Chapter B4 of WDCP expressly provides that Chapter B4:

…has been prepared to provide objectives, strategies and detailed planning controls for retail, office premises and business premises development … in addition to the specific zone objectives and the planning controls contained in Wollongong Local Environmental Plan 2009

…applies to any retail, office premises, business premises … or mixed use development on land zoned either: B1 Neighbourhood Centre, B2 Local Centre, B3 … under Wollongong Local Environmental Plan 2009.

(b)   The objectives of the Retail and Business Centre Hierarchy Strategy contained in clause 3.1 refers at 1(a) and (e) to “existing and planned retail and business centre/s”.

(c)   Figure 1 in Chapter B4 ‘Retail and Business Centre Hierarchy in Wollongong Local Government Area’ expressly includes, at the ‘Towns’ level of the hierarchy, “Future centres at West Dapto” and at the ‘Village’ level, “Horsley, Kanahooka, Future centres in West Dapto.”

(d)   Chapter D16 provides in its Introduction that “Other parts of this DCP continue to apply to the West Dapto Release Area in conjunction with this chapter. Part A of the DCP contains the Introduction and Part B Land Use Based Planning Controls”.

(e)   No emphasis can be placed on the fact that Wongawilli centre is not specifically listed under clause 3.7.2. Indeed, even some well-established village centres such as the Lakelands Shopping Centre Complex (in which IGA Parkside is located) which the Respondent took the Court to in the Class 1 proceedingsare not listed in that paragraph.

5.   It is clear from the above that Chapter B4 and, more specifically, clause 3.7.4, applies to both existing and planned centres, including centres for which locality based/precinct planning controls are contained in Part D of the WDCP.

6.   Finally, at Paragraph 3.19 of the ROS, the Respondent references the observation made by McClennan CJ in BGP Properties Pty Limited v Lake Macquarie City Council that “planning decisions must generally reflect an assumption that, in some form, development which is consistent with the zoning will be permitted.”This is uncontroversial and is no answer to Council’s asserted error of law. There could be no argument that some form of food and drink premises is not envisaged under the zoning (and the WDCP). However, the circumstances of the particular development for which consent is sought must be considered in the context of all matters which are required to be considered under section 4.15 of the EP&A Act.

The oral submissions on Grounds 1 and 2

Mr To’s oral submissions on Grounds 1 and 2

61. Although the above‑set‑out extracts from the Council’s written submissions comprehensively, but concisely, explains the bases for Grounds 1 and 2, it is appropriate to set out how Mr To addressed these matters in his oral submissions (although it is not necessary to do so extensively).

62. Mr To commenced his oral submissions by taking me through the relevant factual elements of the proposed development as set out in the Acting Commissioner’s first decision, commencing with the original version. He next took me to the plan detailing the revised development layout, being that subject of the Acting Commissioner’s second decision and to which the Acting Commissioner gave consent.

63. Mr To then took me through the context of the site and the various elements within the approved development on the site engaged in the appeal. He next turned to explain how the Acting Commissioner had addressed the issues involved by grouping them (as described in the Acting Commissioner’s decision at [69]). Mr To continued his analysis of the Acting Commissioner’s decision by taking me through the material concerning traffic and parking utilisation on the site, as addressed in the decision, and explained the Council's concerns with respect to them.

64. Mr To next took me through the way the Acting Commissioner had considered matters arising from the DCP and, in doing so, noted the complaint in Ground 1 concerning the Acting Commissioner’s statement that the proposed McDonald's was not a new retail development. He submitted that, as a consequence of that error, the Acting Commissioner had not properly considered and applied cl 3.7.4 of the DCP. This, he noted, was at the heart of the Council complaints in Grounds 1 and 2.

65. Mr To continued to take me through matters in the Acting Commissioner's decision relevant to this point.

66. Mr To then turned to the way that the Acting Commissioner had addressed pedestrian movements to and within the site, including in the context of the deficiencies which the Acting Commissioner had identified (and which were later reflected in the amended layout which approval was given).

67. Mr To next took me through the elements of the Acting Commissioner’s decision concerning the Council's position concerning fast food and the objectors’ submissions opposing the proposed McDonald’s restaurant.

68. Having taken me through the Acting Commissioner's decision as summarised above, Mr To then turned to the detail of the DCP. After a general introduction to its structure and of its hierarchy of centres, he turned to cl 3.7.4 and how it provided the basis for Grounds 1 and 2 of the Council’s appeal. He submitted (Transcript 30 May 2022, page 18, line 48 to page 19, line 9):

The provision, a control in council's submission was that any new retail development within any of the village centres shall be limited to retailing activities and services which provide for the daily convenience needs of the surrounding residential community, especially healthy food retailing. This may include small supermarkets/retail grocery stores, butcher shops, fruit and vegetable retailers, bakeries, newsagents, hairdressing salon, dry cleaning shops et cetera.

That's the provision which the council urged on the commissioner as applicable and which the council said to the commissioner that the proposed development did not comply especially in respect of the scale of the elements of the application and the McDonald's fast food restaurant.

69. He next addressed the context of Wongawilli in the West Dapto Release Area. It is unnecessary to set out detail of his analysis (it is sufficient to note that it gave me an appropriate understanding of that context for the purposes of my consideration).

70. In this context, Mr To took me through the neighbourhood plan for Wongawilli North, but acknowledged that some changes in road design (particularly the upgrade of West Dapto Road) meant that elements of that plan were no longer capable of being implemented.

71. Mr To turned to the gravamen of the Council's complaints concerning the Acting Commissioner’s approach to cl 3.7.4 of the DCP. It is appropriate to reproduce the relevant passage of his submissions on this point (Transcript 30 May 2022, page 27, line 21 to page 28, line 44 - passages concerning a courtroom technology malfunction omitted):

Turning to the first observation, the commissioner found food and drink premises was not new retail development and that is a finding that plainly was in error. I took your Honour a moment ago to para 86 of the judgment in which the food and drink premises as a species of retail premises was set out by the commissioner. What is also to be noticed is that in para 87 the commissioner had recorded: "The McDonald's restaurant...of retail premises."

So there was no doubt that it was retail premises, at least at that point when he was writing that part of the judgment and I remind your Honour that this appeal was concerned with a vacant parcel of land. So the passage in para 256 that it was not a new retail development and, rather, the retail/commercial space meaning the four tenancies is intended to fulfil the role of providing convenience needs was one in my submission that was a clear error. It was plainly wrong.

What that meant is that the commissioner did not then ask himself, does the McDonald's component as a new retail development meet cl 3.7.4. There's no doubt that he did so for the tenancies and he found in favour. That was the passage from para 273 in which he said that the area of 600 square metres is sufficient to meet the objectives of DCP 2009 "albeit perhaps only just." That's at p 59 para 273.

The consequence of the error was that the commissioner never turned his mind expressly to whether the food and drink premises, the McDonald's, did or did not comply with the clause and having not done so, there was no occasion and he did not then consider whether it provided for daily convenience needs, was healthy food and retailing relevantly and perhaps had he concluded that the clause was not met by the food and drink premises, how that should weigh in the overall decision to grant or not grant development consent.

That is not to demur from the fact that the commissioner found other contentions as not warranting refusal so for example the consistency with zone objectives or that parking provision would be acceptable. But the failure to apply cl 3.7.4, properly construed, means in council's submission that the--

…..

TO: I was observing that although the commissioner determined that McDonald's as a food and drink premises would not be refused for being inconsistent with the zone objectives for the B1 zone, this did not mean that a proposal for a food and drink premises could still not be rejected because it would not comply with a DCP provision such as cl 3.7.4 which favoured particular forms of retailing and that is so notwithstanding that there may be other provisions of the DCP that the commissioner found either would not warrant refusal or ought to be changed.

That is why the argument of the respondent, that is, McDonald's in this appeal, that any error was not vitiating should not be accepted because that proposition could only be correct if the application of cl 3.7.4, properly construed and applied, could not have affected the commissioner's decision and that is a proposition which in my submission can't be established.

72. Mr To summarised his opening submissions with respect to Grounds 1 and 2 (as founded on cl 3.7.4 of the DCP) in the following terms (Transcript 30 May 2022, page 32, lines 4 to 19):

TO: In respect of grounds 1 and 2, they are closely related. I think your Honour now understands that we put the ground as being the misapplication, misconstruction and therefore misapplication of cl 3.74 of ch B4 and because of that misapplication which is ground 1, what the commissioner failed to do, in my submission, was made cl 3.74 as properly construed the focal point of consideration.

As I say, that failure meant that that element, that is, compliance with 3.74 or otherwise, was not part of the commissioner's reasoning in determining whether or not to grant development consent, despite having correctly recognised at paras 243 and 244 the task was consider whether the control applied, and if the proposal didn't meet it, whether or not the departure is such that consent should be refused. That is the error of law that is vitiating to the application. It is vitiating because, in my submission, it cannot be that a different conclusion could not have been arrived at had cl 3.74 been properly applied with the available evidence to the commissioner.

Mr Galasso's oral submissions on Grounds 1 and 2

73. Mr Galasso commenced his oral submissions addressing Grounds 1 and 2 saying that there were two particular aspects he wished to address. The first was how matters raised had been addressed in the Acting Commissioner’s first decision, and how that element of the case had been advanced by the Council. The second was the question of materiality.

74. Mr Galasso first submitted, with respect to Ground 1, that cl 3.7.4 of the DCP was not engaged for consideration by the Acting Commissioner as a consequence of its express terms. Second, that this ground had to be understood in the context in which it was raised by the Council and how the Acting Commissioner had addressed it. Finally, he submitted that if there was a defect in the fashion advanced by the Council, it was not material to the Acting Commissioner’s decision.

75. Mr Galasso submitted that a proper understanding of the DCP made it clear that the hierarchical arrangement, which had been established at the time of ch B4 of the DCP, predated the identification of a centre at Wongawilli, let alone a centre of the nature now being considered.

76. He developed this submission by taking me through the relevant elements of the DCP applicable to “village centres”, developing the proposition that a proper understanding of these provisions made it clear that they could not be regarded as applicable to the Wongawilli site.

77. He next moved to ch D1 of the DCP where the Wongawilli site first was addressed. He then took me through the relevant provisions in the chapter which he submitted were relevant to my consideration of what was relevant to the site in the context of this appeal, including what was envisaged for this Wongawilli site.

78. Mr Galasso next turned to the matter of the difference between the LEP and DCP definitions. To understand this submission, it is appropriate to set out the relevant portion of the transcript where he raised this matter (Transcript 30 May 2022, page 49, line 30 to page 50, line 7):

168. Mr To then described the steps that occurred subsequently, leading up to the Acting Commissioner’s further hearing on 26 November 2021, the hearing which gave rise to his second decision.

169. The focus of Ground 3, Mr To observed, was that:

1. Two of the changes (being changes to pedestrian walkways) had not been assessed by the Council. None of the changes had been made available for public submissions; and

2. The impact on queuing to enter the site had also not been addressed.

171. Mr To continued taking me through the detail of what the Acting Commissioner set out in his second decision concerning the changes to pedestrian movements within the site by the relocation of an access ramp from the riparian zone further to the south (on the western side of the site) and the associated incorporation of a raised pedestrian crossing at this point where there had formerly been a crossing at grade. He also took me to the new raised pedestrian crossing linking the McDonald’s restaurant with the plaza adjacent to the retail tenancies, with this raised pedestrian crossing traversing the entrance to the drive‑through element of the McDonald’s restaurant.

172. Mr To continued his submissions by pointing to the proposition that the “no evidence” ground is not one to be understood literally but is one addressing the possibility that there might be no probative evidence to support the conclusion rather than merely no evidence at all (citing Wang v Australian Securities and Investments Commission [2019] FCA 1178) (Wang)). In these circumstances, Mr To submitted that this more circumscribed position was relevant to the new raised pedestrian crossing across the entrance point to the drive‑through facility.

173. In this context, he took me to the joint traffic experts report in which Mr Rogers, the Company's traffic expert, had explained why the raised pedestrian crossing, between what had then been the proposed childcare centre parking area and the parking area of the McDonald’s restaurant, was not a problem. Mr McLaren, the Council's traffic expert, accepted that this was an appropriate resolution of safety matters at that location. Mr To pointed to the fact that this was not evidence addressing safety in the context of the drive‑through facility. He next took me to a further passage in the joint traffic and parking report concerning the nature of the traffic flow at that raised pathway between the two car‑parks as originally proposed.

174. Mr To then took me through the oral evidence of the traffic experts relevant to this concern raised by the Council.

175. Mr To next expressly referenced the passage relied upon by the Acting Commissioner in [35] of his second decision (which was the basis for the Acting Commissioner concluding that this crossing did not constitute an unassessed safety issue). Mr To submitted, with respect to this passage, (Transcript 30 May 2022, page 40, lines 27 to 32):

To place it in its proper context, there's a passage of questioning about the reduction in car parking of the childcare centre. There's a sideways reference, in my submission, to this central raised crossing. No questions specifically about safety or otherwise. And Mr McLaren volunteering gratuitously, as it were, it's a good device about which there was no issue because they had agreed it in the joint report.

176. At this point, I had an exchange with Mr To concerning this, an exchange which I do not here set out, but an exchange which does require being addressed in my consideration of this matter.

177. Mr To then explained, by citing a number of transcript pages, that Mr Rogers had not given any evidence concerning raised pedestrian crossings which could be regarded as being any general evidence on this point.

178. Mr To then took me through the evidence given by Mr Rogers concerning the potential for queueing when entering the proposed development and being held up by people using the raised pedestrian crossing between the McDonald’s restaurant and the access way from the riparian zone.

179. He pointed to the fact that the Acting Commissioner had addressed this at [31] of his second decision (earlier set out), where the Acting Commissioner concluded that this would necessarily be taken into account by the relevant transport authorities when determining the phasing of the traffic lights controlling, amongst other things, access to and egress from the driveway into the development. In this regard, Mr To submitted (Transcript 30 May 2022, page 43, lines 24 to 34):

As I said earlier in reference to para 31 of the commissioner's judgment, the fact that Transport might have to determine the phasing is no answer to the point that there may be impacts. What the commissioner is saying is if they're impacts, well, Transport has to deal with it, but that's not an answer to addressing what those impacts and assessing what those impacts might be.

They may well be adverse and unacceptable, but there was just simply no probative evidence about that. That's the ambit of the third ground of appeal, your Honour. We've already dealt with ground 4 at the commencement of the hearing. For those reasons you would find the commissioner erred in the manner identified in grounds 1 and 2 and/or ground 3.

180. The remainder of his primary submissions involved an exchange with me about process matters that do not require to be noted.

Mr Galasso's oral submissions on Ground 3

181. Mr Galasso then turned to address Ground 3, advancing the primary proposition that this constituted purely a factual complaint rather than a question of law. Mr Galasso then moved to describe the nature of the matters that were the subject of this ground and to explain how, from the Acting Commissioner’s first decision, these changes were responsive to matters which the Commissioner had raised at [297]. In particular, Mr Galasso noted that the raised pedestrian crossing at the entrance to the drive‑through element of the McDonald’s restaurant was responsive to the Acting Commissioner’s conclusion that several parking spaces had needed to be deleted from the original proposal in order to increase the passive recreation space in the plaza outside the 600 square metres of retail tenancies.

182. Mr Galasso then noted (Transcript 7 June 2022, page 7, lines 32 to 35):

Now, they were raised because, on the evidence before the Court, the raised walkway was a mechanism accepted by the council's expert, Mr McLaren, as being an appropriate way to deal with a circumstance of an interface between a pedestrian and car traffic.

183. Mr Galasso next pointed out that there were two other raised crossings that had been on the original development proposal. One was that between the proposed childcare centre’s parking area and the McDonald's parking area and the other one was at the pedestrian crossing near the payment bay on the McDonald's drive‑through facility. Mr Galasso pointed to the fact that the Council had raised no objection to the latter of these two crossings which, he submitted, was analogous to that approved across the mouth of the drive‑through facility.

184. Mr Galasso then turned to the evidence given by Mr Rogers concerning how Transport for New South Wales would need to address the phasing of the operation of the traffic lights in order to deal with pedestrian movements - propositions, he pointed out, that were not disagreed with by Mr McLaren.

185. Mr Galasso then took me through the submissions that were made on behalf of the Council in the hearing on 26 November 2021 and the way the Acting Commissioner had set them out in his second decision and had addressed those in his second decision - concluding that there was no reason why he had any concerns about the raised pedestrian crossings.

186. After a discussion I had with Mr Galasso concerning the revised ramp from the riparian zone, Mr Galasso noted that there was no complaint raised by the Council in Ground 3 alleging procedural unfairness, merely a complaint of “no evidence”.

187. Mr Galasso then noted that the Company's written submissions had referred to the High Court's judgment in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41 (Viane) and noted that the “no evidence” rule is traditionally concerned with not a skerrick of evidence.

188. Mr Galasso submitted that there was a significant amount of evidence on the matters raised in Ground 3. Mr Galasso submitted, concerning an exchange I had had with Mr To on this point (the exchange is reproduced in full later) (Transcript 7 June 2022, page 12, lines 13 to 23):

After all, but for Mr McLaren's evidence about the raised crossing, it's questionable whether the Commissioner would have thought of it himself, if that makes any sense, that is it's always sourced in the expert evidence. And my friend constantly said on interrogation by your Honour, "How do you say that's not a skerrick of evidence", and the answer was consistently, "It's not probative evidence". He has never told your Honour what that means, and can I say, in circumstances where there's clear evidence from a traffic expert about that medium, that is a raised crossing and its appropriateness, it is impossible to say that there's no evidence or no probative evidence, and in our respectful submission, your Honour would reject that.

189. He then advised me, responding to a question I had earlier asked him, that the plan showing the revised, raised pedestrian facilities was filed and served on 22 November, a little prior to the second hearing on 26 November 2021.

Mr To’s reply submissions on Ground 3

190. It is convenient to set out Mr To’s opening observations on Ground 3 as providing a summary of how the Council relied upon it (Transcript 9 June 2022, page 17, lines 15 to 28):

What I want to draw attention to by way of reply is three things. Firstly, the issue of the raised walkways, the extra raised walkways on either side of McDonald's, came out of not the traffic evidence, effectively, but the urban design evidence, and that took place after the traffic evidence had been completed. As I took you to in chief, there was very little attention on any topic of the traffic and its interaction with the pedestrians, other than that side comment from Mr McLaren that said it's a good device in the context of a passage of examination that really examined can the parking be reduced and more room freed up. That passage, your Honour, is of course relied upon quite heavily, both by the Commissioner in his second judgment and on appeal by the respondent, but that has to be seen in the context in which it was given, which is why we had made the submission that that evidence is not probative relevant to the matters that the Commissioner was then invited to further consider by addition to the development.

191. Mr To then took me to elements of Mr Galasso's cross‑examination of Mr McLaren that Mr To submitted were relevant to my understanding of how this matter had evolved in the evidence given concerning traffic and parking matters. He submitted that these references were the totality of the relevant traffic evidence dealing with the issue of pedestrian crossings in the vicinity of the McDonald's drive‑through facility.

192. Mr To then turned to take me through the elements of the transcript before the Acting Commissioner where these pedestrian movement issues had been addressed during the concurrent evidence of the urban designers. He proposed that the matters to which he had taken me were the entirety of the matters raised before the Acting Commissioner in the primary hearing addressing questions of safety.

193. It is now appropriate to reproduce the next portion of Mr To's submissions in their entirety (Transcript 9 June 2022, page 19, lines 15 to 37):

It's been submitted by Mr Galasso earlier, particularly on Tuesday, that there was no application ever made by the council to adduce further evidence; my submission in response to that is that was really no occasion to do that. We weren't in a situation where the applicant was coming along and saying, "I'd like to amend my proposal, and these are the ways I'll do it", in which chase there may have been a reopening application and an application to adduce evidence.

This came in the form of an application framed as final disposition of the appeal by way of short minutes, and changes affected by a condition, and when you come back to the principal submission that the council made to the Commissioner, it was this is not an appropriate way of doing it because this topic hasn't been looked at, and there are potential implications; it wasn't a positive assertion that there are definitely unacceptable impacts, it was also not a suggestion of here's the evidence for it, that was just not the context in which this was being raised. It was, as it is now, simply consider the evidence that you have, it doesn't touch on this point, it never did, and that's why it made it inappropriate to adopt the course that was being urged on the Court. That hasn't really altered, the evidence was what the evidence was, and whilst it's a relatively high bar that we have to surmount to identify that there was no probative evidence, that is indeed what the evidence does establish, in my submission.

194. I reproduce this passage as it appears to constitute not only a “no probative evidence” submission, but also a hint of “denial of procedural fairness” submission, a matter not sounded in the pleadings to Ground 3.

195. There was then an exchange between me and Mr To concerning how the Acting Commissioner had raised, in [297] of his first decision, matters which had led to these raised pedestrian crossing elements being incorporated in the design to which the Acting Commissioner gave approval. It is, on this point, appropriate to set out what Mr To said further concerning this (Transcript 9 June 2022, page 20, lines 19 to 26):

There was no further hearing with respect to the merits or otherwise of those items nominated in 297, that's just not procedurally how this part of the proceedings went after the first judgment. I accept, your Honour, if it was I'll make some findings, someone comes along with an amendment and there's an opportunity to then address and consider the amendment, including by evidence if there is an application, that aspect of this appeal would likely not be brought, but that's just not the way it was conducted.

196. This aspect of his submissions, it seems to me, also appears to raise procedural fairness issues not sounded in the pleadings on Ground 3.

197. Mr To concluded by summarising the Council's position on Ground 3 (Transcript 9 June 2022, page 20, lines 30 to 34) in the following terms:

So for those reasons, your Honour would be satisfied, in terms of ground 3, that the evidence didn't relevantly, that is to say in a probative way, provide the basis for the Commissioner to determine the course that he did, with the result that the determinations in the second judgment about safety and otherwise were made without relevant evidence.

Consideration

Introduction

198. As can be seen, pedestrian‑related issues were alive during the various stages of the proceedings before the Acting Commissioner. Two warrant some consideration in the context of Ground 3.

Access to and egress from the site

199. As earlier noted, the plans for which the Acting Commissioner granted development consent were revised in response to matters addressed by the Acting Commissioner in his first decision and were also responsive to matters addressed in his second decision.

200. Amongst other changes, access to, and egress from, the development, as approved, is to be confined to what will become the northern arm of the otherwise three‑way signalised intersection of West Dapto Road, Wongawilli Road (these roads running east‑west and joining at this intersection) and Shore Road (running to the south from what had originally been proposed to be a T‑intersection).

201. In his decision of 8 December 2021, at [31], the below proposition was advanced by the Acting Commissioner as a basis for concluding that the issues arising from access and egress issues affecting pedestrians would be addressed in the fashion set out above.

31   Fourth, as Mr Rogers said in his expert traffic evidence, without demur from Mr McLaren, the phasing of the lights at the intersection will be required to take into account pedestrian movement. The phasing will ultimately be determined by Transport for NSW after consideration of all traffic and pedestrian movements related to, or having an impact on, the intersection.

202. This has not been challenged in this appeal.

The changes to pedestrian access

203. Amongst the changes made to the form of the Company’s proposed development as arising following the Acting Commissioner’s first decision, the Company had incorporated an additional pedestrian access from the riparian zone at a location toward the south‑western corner of the site. This had been accompanied by the insertion of an additional raised pedestrian crossing traversing the driveway providing access to, and egress from, the site. As also earlier noted, a second new raised pedestrian crossing was provided to link the McDonald’s restaurant to the commercial tenancies, with this crossing located at the mouth to the drive‑through service element of the proposal.

204. These can clearly be seen on the marked‑up plan reproduced earlier at [12].

205. As earlier noted, expert traffic and parking evidence had been before the Acting Commissioner and the relevant experts, Mr Rogers and Mr McLaren, had also given oral evidence during the course of the hearing.

206. On the question of raised pedestrian crossings (although given in the context of the proposed raised pedestrian crossing in the original development plans across the vehicle path linking the parking for the proposed childcare centre and that proposed for the McDonald’s restaurant and the retail spaces), Mr McLaren said, in his oral evidence before the Acting Commissioner (Transcript 27 July 2021, page 97, lines 17 to 19 - also set out by the Acting Commissioner at [158] of his first decision and repeated at [35] of his second decision):

“It’s a raised platform that has priority to pedestrians, so it’s actually - it’s more than just a speed hump, it’s actually quite a good device for managing traffic at the interface with pedestrians, yeah.”

207. During the course of the hearing before me, Mr To submitted that this evidence should be regarded as being confined to the specific pedestrian crossing about which Mr McLaren was then being questioned by Mr Galasso.

208. I then had an exchange with Mr To as to how, for the purposes of matters now pressed by the Council in this appeal, I should regard the above transcript extract. This exchange was in the following terms (Transcript 30 May 2022, page 40, line 22 to page 41, line 31):

TO: … Then Mr McLaren answers from line 16 through to 19, "It's a raised...interface with pedestrians". Then Mr Galasso goes back to his questioning, which is, "But you don't...nature in practice". That passage of cross examination finishes at about line 35 on p 276.

To place it in its proper context, there's a passage of questioning about the reduction in car parking of the childcare centre. There's a sideways reference, in my submission, to this central raised crossing. No questions specifically about safety or otherwise. And Mr McLaren volunteering gratuitously, as it were, it's a good device about which there was no issue because they had agreed it in the joint report. To finish off this part of it, your Honour, then in terms of the cross examination of Mr Rogers--

HIS HONOUR: The second half of Mr McLaren's observation commencing from the middle of line 18 to its conclusion at the end of line 19 is a general observation, is it not, rather than a precise and specific one to that location?

TO: It is a generally expressed comment, but it is a comment that is directed to a specific location, because that's how the question was asked.

HIS HONOUR: It is a proposition that is advanced as a general observation and not one that is specific to that location, is it not?

TO: I agree with that, your Honour. Even said that way, it is not something that can be probative of a question of whether there is safety in a very different circumstance of putting a raised crossing across lines of traffic through a drive through facility.

HIS HONOUR: Do you put to me that that, taken as said and applied as a general proposition with respect to raised pedestrian crossings, does not constitute even a scintilla of evidence with respect to raised pedestrian crossings?

TO: I would say probative evidence, your Honour, rather than your Honour's …

HIS HONOUR: A scintilla of probative evidence as to the general position with respect to raised pedestrian crossings.

TO: It's not probative evidence of whether there would be or could be an adverse safety interaction by introduction of a raised crossing of the north eastern corner of the food and drink premises. I just need to give your Honour two more references that--

HIS HONOUR: No, I haven't finished with you yet. I appreciate I'm not cross examining you and you are not in the witness box. But if you had been, I would have been saying that's not a responsive answer, Mr To, wouldn't I?

TO: Your Honour, I'm answering that--

HIS HONOUR: So I ask you again, do you say to me that that general comment is incapable of being construed as being a scintilla of evidence, probative evidence, as to safety issues of raised pedestrian crossings?

TO: I do say that, your Honour, and for this reason: the generality of the comment means that it cannot rationally affect any question of safety assessed for a different location in a different set of circumstances because of its generality and because it can't rationally affect an assessment of safety in that very different circumstance, it is therefore not probative, and therefore I do answer that this evidence cannot be a scintilla of probative evidence. I say it's not probative evidence at all.

Conclusion on Ground 3

209. Mr Galasso, at 1.11 of his written submissions and his oral submissions on this ground, had cited the judgment of the High Court in Viane, where the Court said, at [17]:

By "no evidence" this has traditionally meant "not a skerrick of evidence".

210. In Viane, their Honours cited (approvingly) the judgment of Weinberg J in Australian Retailers Association v Reserve Bank of Australia [2005] FCA 1707; (2005) 148 FCR 446 at 587, where, at 575, his Honour had in turn quoted Aronson, Dyer and Groves, Judicial Review of Administrative Action, 3^rd ed (2004) at 239 as the basis for this proposition.

211. This ground is, as pleaded, a “no evidence” one.

212. However, Mr To had referenced the judgement of Bromwich J in Wang, at [68], where his Honour said:

68   Mr Wang correctly points out that the “no evidence” ground is not restricted to circumstances where there is, quite literally, no evidence at all. That is because a finding may constitute an error of law if there was no probative evidence to support it, so as to be no evidence in law at all: see Bruce v Cole (1998) 45 NSWLR 163 at 188-189 per Spigelman CJ (Mason P, Sheller and Powell JJA agreeing). It follows that the no evidence ground of review will not always be defeated by identifying a mere “skerrick” of evidence if it can be shown by the party asserting the “no evidence” ground not to have been also legally probative in making the finding in question. However that inquiry is one of capacity, not weight.

213. In this context, as can be seen in the earlier set out extract of my exchange with Mr To, he is taking the position that there was no relevantly “probative evidence” in the fashion set out in the above passage from Wang.

214. Although I may have erred in using the expression “scintilla” in my exchange with Mr To (in preference to “skerrick” as adopted by the High Court), I am satisfied that these two appellations are, in this context, to be regarded as interchangeable, perfect synonyms.

215. I am satisfied that the evidence given by Mr McLaren upon which the Acting Commissioner concluded that the two new raised pedestrian crossings were appropriate responses to his concern was evidence given in a general context and not in a specific one merely relating to a pathway traversing the roadway between the McDonald's car‑park and that the proposed car‑park for the (now abandoned) childcare centre.

216. The Acting Commissioner’s identification of, and reliance on, this evidence from Mr McLaren was sufficiently probative for the purposes of addressing the matters pressed by the Council as now underpinning Ground 3.

217. Similarly, the Acting Commissioner was entitled to rely on the uncontested evidence of Mr Rogers (concerning the phasing of the traffic lights required to address pedestrian‑related issues at the entrance to the site) was sufficiently probative for the purposes of satisfying himself that those matters did not require to be addressed by him as they were subsequently to be addressed by the relevant external, non‑participating authority responsible for managing the phasing of the lights at that intersection.

218. The “no evidence” claim fails. As a consequence, Ground 3 also fails.

Conclusion

219. The Council's summons commencing the appeal pleaded four grounds by which it was proposed that the Acting Commissioner had fallen into legal error. At the commencement of the proceedings, one of those grounds was withdrawn. I have concluded that the other three grounds lack foundation. As a consequence, the appeal is to be dismissed.

Costs

220. For appeals pursuant to s 56A of the Court Act, the special costs provisions provided for in r 3.7 of the Land and Environment Court Rules 2007 do not apply. Costs follow the event. As the Council has been unsuccessful in its appeal, the Council is to pay the Company's costs of the appeal.

Orders

221. It follows from the above that the orders of the Court are:

1. The appeal is dismissed;

2. The Applicant is to pay the Respondent’s costs of the appeal as agreed or assessed; and

3. The exhibits are returned.

**********

Decision last updated: 05 October 2022