Land and Environment Court of New South Wales CITATION: Dasey v North Sydney Council [1999] NSWLEC 234 PARTIES APPLICANT Dasey RESPONDENT North Sydney Council NUMBER: 10937 of of 1998 CORAM: Pearlman J KEY ISSUES: Section 56A Appeal :- misdirection as to meaning of "material" Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Land and Environment Court Act 1979 s 56A North Sydney Local Environmental Plan 1989 State Environmental Planning Policy No 1 DATES OF HEARING: 09/23/1999 DATE OF JUDGMENT DELIVERY: 10/07/1999 APPLICANT Mr G A Green (Solicitor) SOLICITORS Pike Pike & Fenwick LEGAL REPRESENTATIVES: RESPONDENT Mr C W McEwen (Barrister) SOLICITORS Mallesons Stephen Jaques JUDGMENT: IN THE LAND AND 10937 of 1998 ENVIRONMENT COURT Pearlman J OF NEW SOUTH WALES 7 October 1999 DIANA DASEY Applicant v NORTH SYDNEY COUNCIL Respondent JUDGMENT Introduction 1. This is an appeal under s 56A of the Land and Environment Court Act 1979 brought by North Sydney Council ("the council") against the decision of Commissioner Murrell. The Commissioner granted approval subject to conditions to the subdivision and erection of semi-detached houses at No. 39 Clifton Street, Waverton. 2. An appeal under s 56A is confined to an error of law. The sole ground of appeal is that the Commissioner erred in law in that: The Commissioner misdirected herself as to the meaning of "material" in clause 13(2) of North Sydney Local Environmental Plan 1989 and as a consequence: (a) The Commissioner misdirected herself whether, pursuant to clause 13(2), there was a material overshadowing impact on 50 Euroka Street, Waverton; and (b) The Commissioner misdirected herself whether, under clause 13(2), there was a material loss of views from 56 Euroka Street, Waverton. Background 3. The site is within zone no. 2(c) (Residential "C") under North Sydney Local Environmental Plan 1989 ("the LEP") and the proposed development is permissible with consent. 4. It appears to have been common ground (although I could find no particular reference to it in the Commissioner's judgment) that part of the proposed buildings, if erected, would exceed the "building height plane" as that term is defined in the LEP. It also appears to be common ground that the exceedence would increase the overshadowing on an adjoining property (No 50. Euroka Street, Waverton) and would obstruct views from another adjoining property (No. 56 Euroka Street, Waverton). 5. In those circumstances, cl 13 of the LEP applies. It provides as follows: 13. (1) Subject to subclause (2), a building shall not be erected on a site within Zone … 2(c) … where any part of the building will exceed a building height plane projected at any point from any boundary of the site. (2) A building may be erected which does not comply with the building height plane provided the building, when erected - (a) will not materially increase the overshadowing of adjoining properties; (b) will not materially reduce the level of privacy enjoyed by adjoining properties; (c) will not materially obstruct views from adjoining buildings; and (d) will not materially reduce the level of daylight and ventilation to existing development, and no well founded objection is raised to the proposed building. 6. It also appears to have been common ground that cl 13(1) is a development standard pursuant to the Environmental Planning and Assessment Act 1979, and is amenable to the lodgment of an objection under State Environmental Planning Policy No 1 ("SEPP 1"). The Commissioner's judgment 7. The Commissioner noted the provisions of cl 13 of the LEP as being part of the statutory planning framework, and she noted that there were issues relating to whether the proposal should be approved having regard to cl 13. 8. At p 13 and p 14 of her judgment, the Commissioner quoted extensively from the decision in Joseph Lahoud & Associates Pty Ltd v North Sydney Council (2 February 1998, unreported). Although the passages which the Commissioner quoted from that judgment dealt with the expression "well-founded" , I note that they were directed to cl 14A(1)(b) of the LEP and not to cl 13, and I doubt that they had any relevance to the Commissioner's task. 9. However, Joseph Lahoud v North Sydney Council also dealt with cl 13 of the LEP. The Commissioner noted that fact, and then stated "I will not continue to quote from this Judgment but it has relevant principles for these proceedings". She did not state what those principles were. 10. The Commissioner then made the following statement: With respect to 'material' if one looks at the Oxford dictionary it is defined as "of such significance to be likely to influence the determination of a cause". 11. The Commissioner proceeded to deal with various issues, and ultimately came to deal with cl 13 on p 17 and p 18 of the judgment. In relation to overshadowing, she said: In consideration of cl 13 of the LEP, the building height plane and subclause 2 criteria … I have had regard to the evidence and the objections in assessing whether there is a material overshadowing for No. 50. Whilst it could not be agreed as to the precise duration of sunlight loss to No. 50, it was agreed that the maximum would be in the vicinity of 1½ to 2 hours between 9 and 3 at the mid-winter solstice the worst case scenario. I am cognisant of the fact that this dwelling has an easterly aspect and in terms of winter sun this can be gained through the dormer window in the attic (of a morning) and that the additional overshadowing that would result from the proposed development is not unacceptable or material in my assessment. It is acknowledged that there will be sunlight loss on the rear deck to the attic at No. 50 up to approximately 11 am but in the context of the development and the solar access still available to the dwelling at No. 50. I am of the opinion it would not be a material impact and in that regard I find the objection from the owners of No. 50 is not well founded. 12. In relation to the obstruction of views, she set out a number of factual matters and also the opinion expressed by Mr H Sanders, the council's consultant town planner. She then stated as follows: However, the site inspection provided the best opportunity to see (as described above) what the affectation will be as there was agreement as to the height poles on the subject property. Having regard to the LEP provisions, and to the fact that this is a secondary room in terms of its use, I am of the opinion that the view will not be materially impacted and the objection is unfounded. 13. Referring to the paragraphs I have quoted above, the Commissioner concluded with the following statement: That (the above) deals with cl 13 with respect to the building height plane and in my opinion cl 13(2) is satisfied. I find that there is no material impact and the objections are unfounded. The council's case 14. The council's case is that, in construing the word "material" in cl 13(2) as being "of such significance to be likely to influence the determination of a cause", the Commissioner adopted the wrong test. It was said that such a test elevated cl 13 beyond its intended position in the LEP. Under the LEP, cl 13(1) is not a prohibition but is a development standard which is amenable to a SEPP 1 objection. But if the matters specified in cl 13(2) are satisfied, then a SEPP 1 objection is not required. If those matters are not satisfied, then cl 13(1) does not have the effect that the proposed development is prohibited; rather the consequence is that the applicant may resort to a SEPP 1 objection. In that context, it was claimed, the word "material" cannot be regarded as being likely to influence the determination of the cause or the ultimate determination of whether to grant or refuse development consent. In the council's submission, the meaning of "material" which would fit that context would be "real" or "not incidental" or "slight". 15. Accordingly, in the submission of Mr McEwen, for the council, the Commissioner committed an error of law. She misdirected herself, that is, she defined otherwise than in accordance with law the question of fact which she had to answer, to adopt the principle stated by Glass JA in Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 156 in a passage cited with approval by Clarke JA in Randwick Municipal Council v Manousaki (1988) 66 LGRA 330 at 333. 16. Mr McEwen acknowledged that Azzopardi v Tasman UEB Industries concerned the decision of a trial judge, whereas this case is concerned with the decision of a lay tribunal, but he relied upon the following passage from the judgment of Kirby P in Brimbella Pty Ltd v Mosman Municipal Council (1993) 79 LGERA 367 at 368: … it is undesirable in an appeal from a lay tribunal, where the appeal court is confined to a question of law, that it should examine too narrowly the words used in the decision, at least unless these words are central to the decision involved. 17. In Mr McEwen's submission, the construction of the word "material" which the Commissioner adopted was central to her decision, and an examination of the test she adopted does not in those circumstances involve impermissibly a 'fine tooth comb' approach. The applicant's case 18. The applicant contends that the Commissioner made no error of law. Mr Green, appearing on behalf of the applicant, made the following propositions: (a) The meaning of the word "material" in cl 13(2) was a question of fact for the Commissioner to determine. "Material" is an ordinary English word, and its interpretation is a question of fact, which is to be resolved by the Commissioner herself. For this proposition, Mr Green relied upon the decision of Jordan CJ in The Australian Gas Light Company v The Valuer-General (1940) 57 WN 53 at 55; (b) Furthermore, as Jordan CJ pointed out at p 55, it is legitimate for the finder of fact to seek assistance from a dictionary in seeking to determine the meaning of an ordinary word; (c) As Jordan CJ also pointed out (again at p 55), a finding of fact can be disturbed only if there is no evidence to support the inferences upon which the finding was based. Mr Green submitted that there were facts to support the Commissioner's findings in relation to cl 13(2), and a perusal of her findings on that issue demonstrates the factual matters which she took into account; (d) In any event, even if it could be said that the Commissioner erred in the construction of the word "material" , it is not such an error as would vitiate her decision, because she went on to deal with the SEPP 1 objection which had been lodged by the applicant. Mr Green drew attention to the passage on p 18 of the Commissioner's judgment, where she said: There was a difference of opinion as to whether in fact a SEPP No. 1 objection was also required for the building height plane, I am prepared to accept the Respondent's [ie the council's] position that a SEPP No. 1 objection is also required and one was submitted as a precautionary measure. However, I am of the opinion that the standard in this instance is unreasonable and unnecessary. Did the Commissioner err in law? 19. The propositions set out in the judgment of Jordan CJ in Australian Gas Light v The Valuer-General are uncontroversial and they are not really in dispute in this case (they were, for example, cited with approval in both Azzopardi v Tasman UEB Industries (at p 157) and Randwick v Manousaki (at p 333) being the authorities upon which Mr McEwen relied) and see Iman Husain Pty Ltd v Canterbury City Council (9 August 1999, Lloyd J, unreported p 5 - p 6). 20. But, as Jordan CJ pointed out at p 55, a finding of fact can be set aside if the tribunal of fact "misdirected itself in law". The question in this case is whether the Commissioner defined otherwise than in accordance with law the question of fact which she had to answer ( Azzopardi v Tasman UEB Industries at p 156). I have concluded that she did not. 21. The question of fact which confronted the Commissioner was, in terms of cl 13(2), whether the building, when erected, would materially overshadow adjoining properties, or would materially obstruct views from adjoining buildings. The answer to that question depended upon the meaning of "material". That word is an ordinary English word used in the LEP, that is, in delegated legislation. Australian Gas Light v The Valuer-General is authority for the proposition that a tribunal of fact is entitled to elicit the meaning of an ordinary word in a statute by reference to a dictionary, and there is no reason in principle why such a proposition does not equally apply to delegated legislation (cf King Gee Clothing Co Pty Ltd and Ors v The Commonwealth and Anor (1945) 71 CLR 184 at p 195 and see also Parry v Osborn [1955] VLR 152 cited in D C Pearce's Delegated Legislation in Australia and New Zealand , Butterworths, Sydney, 1977 at par 628. 22. The issue is whether, in adopting that meaning, the Commissioner adopted a test for the application of cl 13(2) which was otherwise than in accordance with the proper construction of cl 13(2) in its context, that is, otherwise than in accordance with law. I think that she did not. 23. There is nothing in the Commissioner's judgment which would warrant a conclusion that she misdirected herself as to the question of fact which she had to determine. In order to make good his argument, Mr McEwen was obliged to say that the reference to "a cause" in the dictionary definition which the Commissioner adopted was a reference to the ultimate decision in the appeal before her. Consequently, according to Mr McEwen's argument, the Commissioner approached the factual questions under cl 13(2) as being determinative of whether to grant or refuse development consent. But I can find nothing in her judgment to indicate that she addressed the question of material overshadowing or material loss of views as being determinative of the outcome of the case. Having found that there would be no material impact in either case, she proceeded to say, not that development consent should be granted as a consequence, but that the objection raised in each case was not well founded and that cl 13(2) was satisfied. That is precisely what was required by the LEP. 24. Mr McEwen's argument really comes down to a submission that the Commissioner chose the wrong meaning of the word "material", that is, that she should have regarded that word as meaning "real" or "not incidental" or "slight" rather than as meaning "of such significance to be likely to influence the determination of a cause". However, the meaning of the word, as an ordinary English word, was a question of fact not a question of law ( Australian Gas Light v Valuer-General at p 55; Hope v The Council of the City of Bathurst (1980) 144 CLR 1 at p 7 - p 9) and the question of whether the facts fell within the meaning of "materially increase" or "materially obstruct" as a matter of common understanding was also a question of fact ( Londish v Knox Grammar School and Ors (1997) 97 LGERA 1 at 7). 25. Having come to the conclusion that cl 13(2) was satisfied, it was unnecessary for the Commissioner to deal with the SEPP 1 objection concerning the building height plane. Having regard to her reference on p 18 to the difference of opinion between the parties and the council's submission that a SEPP 1 objection was required, she seems to have been beguiled into the feeling that she should deal with it. I do not take her remarks in this connection as casting any doubt on her understanding or approach to cl 13(2). Conclusion 26. For the reasons which I have set out, the Commissioner has not erred in law and the appeal must fail. Accordingly, my formal orders are as follows: (1) The appeal is dismissed. (2) The respondent must pay the costs of the applicant as agreed or as assessed. (3) The exhibits may be returned. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.