BATSHON v HUNTERS HILL COUNCIL SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL SHELLER, POWELL and COLE JJA 18 February 1997, 18 February 1997 [1997] NSWCA 42 CLASS I appeal — no true question of law — appeal dismissed Cole JA This is an appeal by Mr Bassam Batshon from the decision of Bannon J in the Land & Environment Court dismissing a Class 1 appeal!. In consequence of s57(1) Land & Environment Court Act 1979 an appeal may be brought to this Court only on a question of law. FACTS The facts are in narrow compass. Mr Batshon wished to develop No 9 Junction Street, Gladesville by altering an existing dwelling and constructing a separate self-contained dwelling in the backyard of the property, thus creating a dual occupancy. Such a development was permissible with consent under the terms of Local Environment Plan No 1. State Environmental Plan No 25 provided that the minimum allotment size for subdivision for dual occupancy comprising detached houses was 600m2. The subject land has an area of 685.6m2. Thus when the development application was lodged on 2 March 1995 the development was permissible, and remained permissible on 8 March when amended plans were lodged. However on 17 March 1995 there was gazetted the Hunters Hill Local Environment Plan No 22. By cl17A(1)(b) it was provided that a second detached dwelling house could not be erected on land having an area of less than 900m2. CI7 of LEP No 22 however, saved this application as it had not been "finally determined". On 30 March 1995 Hunters Hill Council refused the development application. After delivering a further amended plan, the appellant lodged on 18 May 1995 a Class | application appealing to the Land & Environment Court against the rejection. In September 1995 the appellant lodged further plans. On 3 October 1995 the Council determined that the appeal to the court should be disposed of by a consent order embodying certain conditions. However when the matter was listed three residents objected to the development. In consequence the appeal proceeded before Bannon J on 8 and 20 December 1995. In a reserved decision delivered 21 December 1995, Bannon J dismissed the appeal. No party has taken any point concerning the procedural steps or the power of the Land & Environment Court in the circumstances mentioned to deal with the matter. Indeed, counsel for the appellant has accepted that Bannon J had that power. Before Bannon J a statement of issues was filed. Those issues included: "1. The proposed development would have an adverse effect on the amenity of the surrounding properties including privacy and overshadowing. 1. S17(d) Land and Environment Court Act 1979. 2 UNREPORTED JUDGMENTS 8. The proposed development os out of character with the surrounding area." Bannon J, with the advantage of a site inspection during which he examined the property upon which the development was proposed from the rear of Mr Goddard's property, he being the an objecting neighbour, rejected the development on the following basis: "While I consider the problem of overlooking could be surmounted by a high fence, my overall opinion is that the applicant's proposed construction will have the effect of walling in the Goddard's backyard and will be an overdevelopment of the fairly small allotment of the applicant. The proposed development, in my opinion, will alter the character of the area which is one of suburban homes with backyards. While it is true that no one else applied in time for dual occupancy on small areas under the old LEP, the proposal is out of kilter with the surrounding homes." GROUNDS OF APPEAL Two grounds of appeal only have been raised. The first is that the appellant was denied natural justice and procedural fairness because there was no evidence of "walling in" of the neighbour's property, and Bannon J did not raise the matter with the parties. I doubt if this is a point of law. The amenity of the surrounding properties was clearly in issue. The question of the adverse effect of the proposed development on mr Goddard's backyard, and whether the deleterious effects of the development on adjoining properties could be overcome by a high fence was the subject of evidence and cross-examination. It is, in my view, specious to seek to create a point of law by seizing upon an expression used by the trial judge to convey his factual finding of the effect of the development on a neighbouring property and to suggest that because that expression was not used in evidence, natural justice and procedural fairness have been denied. In truth this ground is an attempt to manufacture a point of law from a factual finding. I would reject this ground of appeal. The second ground of appeal was: "His Honour erred in applying a finding that the proposed development would alter the character of the area when the application of SEPP 25, the relevant planning instrument necessarily involves such alteration." S90 requires the Court to have regard to relevant environmental planning instruments?. However it also requires the Court to have regard to the impact of the development upon the environment3, the character of the development, the relationship of the development to development on adjoining land or other land in the locality5, the circumstances of the cases® and the public interest7. It is not an error of law to find as a matter of judgmental fact that the development would adversely affect the character of the area, and on that basis reject it. This ground also fails. I would propose that the appeal should be dismissed with costs. Sheller JA I agree. $90(1)(a)(i). $90(1)(b). $90(1)(e). $90(1)(h). S90(1)(q). $90(1)(r). NAMRYWN URJ BATSHON v HUNTERS HILL COUNCIL (Powell JA) Powell JA I also agree. COLE JA: The appeal is dismissed with costs. Appeal dismissed with costs. Counsel for the appellant: J Coombs Solicitors for the appellant: Di Lizio and Associates Counsel for the respondent: J Hannaford Solicitors for the respondent: Abbott Tout