Land and Environment Court of New South Wales CITATION : Pittwater Council v Mount [2000] NSWLEC 256 APPELLANT: Pittwater Council PARTIES : RESPONDENT: Mount FILE NUMBER(S) : 10270 of 2000 CORAM: Bignold J KEY ISSUES: Section 56A Appeal :- LEGISLATION CITED: Environmental Planning and Assessment Act 1979, s 97 Land and Environment Court Act 1979, s 56A Brimbella Pty Ltd v Mosman Council (1985) 79 LGERA 367; CASES CITED: Carstens v Pittwater Council (1999) NSWLEC 249· Hoskins v Waverley Council (1999) NSWLEC 236; Schaffer Corporation Ltd v Hawkesbury Council (1992) 77 LGRA 21. DATES OF HEARING: 6 December 2000 DATE OF JUDGMENT: 12/11/2000 APPELLANT: Mr A Galasso, Barrister SOLICITORS Mallesons Stephen Jaques LEGAL REPRESENTATIVES: RESPONDENT: Mr D Officer QC with Mrs J Kelly, Barrister SOLICITORS Gadens Ridgeway JUDGMENT: IN THE LAND AND Matter No . 10270 of 2000 ENVIRONMENT COURT OF Coram : Bignold J. NEW SOUTH WALES 11 December 2000 PITTWATER COUNCIL Appellant v SALLY FIONA MOUNT Respondent JUDGMENT ON s56A APPEAL Bignold J: 1. This is an appeal pursuant to the Land and Environment Court Act 1979 s 56A (the Court Act) against the decision of Commissioner Murrell upholding an appeal pursuant to the Environmental Planning and Assessment Act 1979, s 97 (the EP&A Act) and granting development consent to the carrying out of development comprising a large roofed horse arena and an extension to an existing dwelling-house on a rural property known as 54 Lane Cove Road, Ingleside. 2. The appeal is limited to error of law. 3. In its Statement of the grounds of appeal filed pursuant to Pt 13, r 37 of the Rules of Court (a copy of which is annexed hereto), the Appellant asserts three related errors of law in the Commissioner's judgment, which can be summarised as follows— (i.) that she applied an erroneous approach to the evaluation that was required to be made by the EP&A Act, s 79C(1) by asking whether the proposed development would be "consistent with" the character of the non-urban area and in consequence, she failed to consider the matters enumerated in that section that were relevant to the determination;. (ii.) that she applied the same erroneous approach to her consideration of the draft Development Control Plan No 24 (the draft DCP) and in consequence failed to consider the draft DCP; and (iii.) that she made a number of factual findings that were erroneously arrived at by applying the same erroneous approach. 4. (On the hearing of the Appeal, the Appellant abandoned an alternative basis for the third alleged error, namely that the findings were "manifestly unreasonable".) 5. In amplification of these alleged errors of law, the Appellant placed the utmost importance upon the Commissioner's citation of, and apparent reliance upon, a passage from the judgment of the Chief Judge in Schaffer Corporation Ltd v Hawkesbury Council (1992) 77 LGRA 21. The citation occurs in the following passage at par 47 of the Commissioner's judgment: The subject site is zoned for rural purposes 1A non-urban and the proposal will be consistent with the character of a non-urban area. However, it is to be noted with respect to consistency of aims and objectives in the matter of Schaffer Corporation Limited v Hawkesbury Council, 77LGRA her Honour states at 27: The guiding principle then is that a development will be generally consistent with the objectives if it is not antipathetic to them. It is not necessary to show that the development promotes or is ancillary to those objectives nor even that it is compatible . 6. The Appellant's written submissions puts the central argument concisely as follows: It is contended in this appeal that the Commissioner determined the issues before the Court by reference to the wrong question by seeking to apply both to a merit assessment under s 79C and to the application of a draft Development Control Plan, the (unrelated) test for permissibility of development as posited in Schaffer Corporation Limited v Hawkesbury City Council (1992) 77 LGERA 21: quite simply the Commissioner erroneously sought to exercise functions under s.79C of the EPA Act and to resolve issues of non compliance of the Development Application by reference to a test unrelated to s.79C and unrelated to the relevant Draft Development Control Plan, or alternatively, unrelated to a proper approach to s.79C and unrelated to the resolution of issues concerning non-compliance of the proposal with the Draft Development Control Plan. 7. The Appellant very ably elaborated this argument in its written and oral submissions but I do not think that I need recite the elaboration of the argument. The passage I have recited is the kernel of the Appellant's argument. 8. The absolute high watermark of the Appellant's argument is that by dint of her citation of the passage from the judgment in Schaffer (which reflects what might be thought to be a somewhat specialised understanding ("not antipathetic to") of the notion of a proposed development being "consistent" with specified zone objectives) it can be inferred, or at least assumed, that every time in her judgment that the Commissioner refers to the word "consistent" she has applied that specialised meaning. Thus, to take up the examples stated in the Appellant's third ground of appeal, the Commissioner said: (a) …[that] the proposed development…will sit comfortably in its context and it will be consistent with the objectives of the rural zone. (Judgment, paragraph 42); (b) In my opinion the character of the proposed development is compatible with the rural character of the area and the zone objectives (paragraph 45); (c) The subject site is zoned for rural purposes 1A non-urban and the proposal will be consistent with the character of a non-urban area. (paragraph 47); and (d) …the proposed development is consistent with the provisions of the rural zone as contained in the aims and objectives of the DCP. (paragraph 46). 9. Whereas I think that this is a very ambitious assumption to make (and it was strenuously disputed by the Respondent who rejected the argument as "totally distorting the reasoning process of the Commissioner"), I am prepared for the sake of adjudicating upon the Council's argument, to make the assumption without testing its validity (unless that task becomes necessary). The question then becomes—Does this demonstrate that the Commissioner has thereby erroneously in law undertaken the evaluation task required to be undertaken by the EP&A Act, s 79C(1)? 10. That task was to evaluate the development application by the exercise of a discretionary planning judgment which complied with the requirements of s 79C(1) which is in the following terms— 79C Evaluation (1) Matters for consideration - general In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application: (a) the provisions of: (i) any environmental planning instrument, and (ii) any draft environmental planning instrument that is or has been placed on public exhibition and details of which have been notified to the consent authority, and (iii) any development control plan, and (iv) the regulations (to the extent that they prescribe matters for the purposes of this paragraph), that apply to the land to which the development application relates, (b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality, (c) the suitability of the site for the development, (d) any submissions made in accordance with this Act or the regulations, (e) the public interest. 11. It is necessary to examine how, as revealed by her reasons for judgment, the Commissioner undertook that task. The relevant passages in her judgment commence at par 38 and conclude at par 53 . Before reciting the passages, I should note that earlier in her judgment the Commissioner had carefully detailed (i) the nature of the appeal; (ii) the reasons for the Council's refusal; (iii) the relevant planning instruments including most particularly, the draft DCP; (iv) the evidence adduced at the hearing; and (v) the central focus of the hearing, namely " the weight that should be given to the draft DCP " ( par 26 of the judgment ). 12. It is against that background that the following passages from her judgment are properly to be understood as providing her reasons for concluding that development consent should be granted to the proposed development— 38. I have carefully assessed the development application before the Court. A statement of issues was tendered but the central issues became those of Council's refusal, namely because of non-compliance with the draft DCP No 24, in particular with respect to the height restriction of 8.5 m and the site coverage provision. 39. The subject application has been assessed on its merits against the relevant guidelines, policies and provisions of Council and the Environmental Planning and Assessment Act. 40. On behalf of the respondent it was submitted that allowing the proposed development to a height of 13.7 m would create a precedent in the area. However, the Court must look at the merits of this application in assessing the proposal against the relevant provisions and in that regard I refer to the judgment of her Honour Justice Pearlman in the matter of Date and Anor. v Maritime Services Board of New South Wales in 75 LGRA, 224 to 232. With respect to precedent her Honour states at 232:- I propose to follow the judgment of Cripps J in Milner v Willoughby Council in which his Honour held that the planning decision, the subject of his decision should not be relied upon as a precedent because it would not force the council to consent to the erection of other dwellings which in their totality would not be acceptable on planning grounds. He stated that each development application must be determined on its own merit. That is a decision that has been followed many times in this Court . 41. Assessing the individual merits of applications also requires an assessment in their context in terms of the likely impacts on adjoining development and the suitability of the site for the subject development. 42. It was conceded Mr Sutton that the proposed development would only be visible from Lane Cove Road and the adjoining Walter Road and from the site inspection, which I had the benefit of in the presence of the parties, this was apparent. It was not held by Mr Sutton that the proposed development would be visible from further afield. In submissions Bushrangers Hill (towards the coast) was referred to, however, the proposed development will not be a visual intrusion into the landscape when viewed from a greater distance. In the Court's assessment the proposed development will be visible from Walter Road and it will also be seen from Lane Cove Road, however it will sit comfortably in its context and it will be consistent with the objectives of the rural zone. 43. The setbacks to the proposed dwelling are most generous, 130 m from Lane Cove Road and 50 m from Walter Road to the dwelling. The other part of the development, the arena is 58 m from Walter Road and 40 m from Lane Cove Road. 44. The proposed site is over two hectares in area and whilst the proposed development can be calculated to be (on one definition) 16.85% site coverage, this in its context does not represent overdevelopment of the site in my opinion. I am conscious of council's control to ensure low scale development in the rural area, however, I also must have regard to all of the objectives and aims in the DCP and it is clear that the proposed development to my mind will read physically as a rural development. Whether that definition includes a commercial component in the training of horses or whether that is considered as agriculture, this is not a significant issue here as the categorisation of the use was not contested in these proceedings. 45. In my opinion the character of the proposed development is compatible with the rural character of the area and the zone objectives. As I indicated above the subject site is not a natural bushland site although landscaping with indigenous species is proposed and has been undertaken on the subject site. 46. In my opinion, the proposed development is consistent with the provisions of the rural zone as contained in the aims and objectives of the DCP. It is noted there are no specific aims in the LEP as such. I have also had regard to the fact that the proposed development is generally consistent with the objects of the Act, including to encourage proper management, the promotion and co-ordination of orderly and economic use and development of land, the protection of the environment, and ecologically sustainable development. 47. The subject site is zoned for rural purposes 1A non-urban and the proposal will be consistent with the character of a non-urban area. However, it is to be noted with respect to consistency of aims and objectives in the matter of Schaffer Corporation Limited v Hawkesbury Council, 77LGRA her Honour states at 27: The guiding principle then is that a development will be generally consistent with the objectives if it is not antipathetic to them. It is not necessary to show that the development promotes or is ancillary to those objectives nor even that it is compatible . 48. In considering the objectives of the draft DCP cited earlier I am also of the opinion that the proposed development is generally consistent. 49. With respect to the height of the development the respondent handed up a condition late in the proceedings to have the effect of reducing the height of the development to fall within the 8.5 m height limit. The applicant was prepared to tender plans to show a reduction in the height of the rotunda to a maximum of 11.8 m. The respondent, however, did not agree to the tendering of such plans and as such the Court did not accept the tender of the plans, as the respondent council had not had the opportunity to consider same. 50. Reduction of the rotunda may be a satisfactory resolution, however, in terms of the development before the Court, Exhibit B, I am satisfied that the additional height would not detrimentally impact on the locality or the area and would not be inconsistent with the aims and objectives of the draft DCP. I say this having regard to the setbacks, the size of the property and the fact that the proposed development whilst it will be visible from local roads it will not be dominant in its context. 51. Council's planner stated that the scale, bulk and height in his opinion were not appropriate. The proposed development whilst it has a height at the highest point of some 13.7 m, contained to one element which is the focal point of the property, the Court does not consider in the circumstances that it is appropriate that the rotunda element be reduced to 11.8 m or the design changed to comply with the 8.5 m guideline. The alternatives were raised late in the proceedings and there was no opportunity for expert evidence to be deduced from either the architect and the other expert witnesses. The architectural integrity of the development may be compromised and furthermore, the 13.7 m height in my opinion would not warrant refusal of the application. 52. The spatial separation was also raised as an issue. The set backs comply with the development control plan on the western boundary and the impact of the proposed development on any neighbouring properties is minimal. Furthermore, the development as proposed whilst it may be a total length of nearly 90 m it reads as a number of elements and there is separation between the various structures. The varying rooflines will also be clearly read as different elements and the proposal would not be inconsistent in terms of ancillary or associated development for a rural non-urban property. 53. In conclusion I am of the opinion that the proposed development should be approved having regard to my findings above. 13. In my respectful judgment, a fair reading of the Commissioner's reasons for judgment leads to the inescapable conclusion that in determining the appeal, in the context of the issues that had been raised by the parties, she fulfilled the statutory duty imposed by s 79C(1) of the EP&A Act to take into consideration relevant matters. In particular, her reasons for judgment clearly demonstrate that she took into consideration— (i.) the provisions of the draft DCP— see par 44 to par 48 (inclusive) in relation to the "site coverage" stipulation of the draft DCP and see par 49 to par 51 (inclusive) in relation to the "height" stipulation of the draft DCP and see par 52 in relation to the "spatial separation" stipulation of the draft DCP; and (ii.) the environmental impact of the proposed development and the suitability of the site for the proposed development—see par 41 to par 48 (inclusive), these being the relevant matters in s 79C(1) that had been in issue at the hearing. 14. It is of course obvious that the Commissioner's consideration of these matters resulted in determinations that were adverse to the Council's case. Indeed, the Council's case was entirely rejected. However, such a result is perfectly within the province of the Commissioner's adjudicative function conferred by the Court Act, s 39. To the extent that the Commissioner's determinations (adverse to the Council's case) of relevant matters in dispute reflect her "consideration and evaluation" of relevant matters, they are of course unassailable and immune from any appeal under s 56A of the Court Act which limits appealable error to error of law. Likewise, the Commissioner's attribution of weight to the relevant matters in the course of her consideration and evaluation and ultimate determination only raises a question of fact and is similarly unassailable in the present appeal. 15. All these maters are so well established as to not require citation of authority and the Appellant properly acknowledged that for its appeal to succeed, it must establish that the Commissioner's "consideration" of relevant matters was legally flawed by virtue of the Commissioner's (assumed) adoption of the understanding of what is meant by "the consistency" of the proposed development with the relevant zone objectives, which understanding traces back to this Court's judgment in Schaffer. 16. In my judgment, the Commissioner's relevant consideration of relevant matters was not legally flawed in the manner suggested by the Appellant's argument. I so conclude for two reasons. 17. Firstly, there can be no doubt whatsoever that the relationship of the proposed development to (i) its relevant physical environs or context; and (ii) relevant planning controls and restrictions and most notably the draft DCP, was a relevant matter to be considered in terms of the EP&A Act, s 79C(1). In the consideration of that relationship, the question of the consistency or compatibility of the proposed development with those referents was obviously relevant, whether the notion "consistency" be understood broadly (ie according to the natural meaning of the ordinary English word) or narrowly (ie according to the specialised meaning attributed in Schaffer). 18. Secondly, the Appellant's argument, in my respectful opinion, is itself founded upon an erroneous major premise, namely that the only legally acceptable manner in which the draft DCP could be properly "considered" in the present case (where it was plainly obvious that the proposed development did not comply with the draft DCP's stipulations as to "height" and "site coverage") was for the Commissioner to adopt the method for considering "variations" from the relevant provisions that is prescribed in the draft DCP. That method is alluded to in par 25 of the Commissioner's judgment which states: It (referring to the draft DCP) also states that the provisions of this plan may be varied in special circumstances: · where only a minor non-compliance exists; · where there has been no objections to the proposal; · and where the applicant can demonstrate that the aims and objectives of the plan have been satisfied and that strict compliance is unnecessary due to the particular circumstances. 19. Founding its central argument upon this major premise, the Appellant ingeniously argued that since a variation from the DCP's provisions might only be sanctioned where it had been demonstrated "that the aims and objectives of the plan have been satisfied", it necessarily followed that the Commissioner could not have been so "satisfied", because she had adopted the erroneous approach of determining whether the proposed development was "consistent" with the objectives of the DCP, according to the meaning given to that concept or word in Schaffer. 20. In my judgment, the Appellant's argument must fail because the major premise is itself fundamentally flawed. It is flawed because the Appellant has implicitly ascribed an effect to the draft DCP as if it were a binding environmental planning instrument in which case its terms would have to be obeyed, and any development consent would have to be consistent therewith: see the EP&A Act s 76A(1). (It may be that such provisions if contained in an environmental planning instrument would be amenable to the objection process pursuant to State Environmental Planning Policy No 1—Development Standards, but this question need not be pursued.) 21. However, the true status of the draft DCP is far removed from a binding environmental planning instrument. Moreover, while it is a draft DCP, it does not have the direct and certain operation that it would have if it were a development control plan in force under the EP&A Act, s 72 because the draft provisions are liable to be changed in any ultimate development control plan that comes into force, or indeed may never be adopted by a development control plan. Even the effect of a development control plan which is in force under s 72 is far removed from the effect of an environmental planning instrument because unlike the latter, its terms cannot, for example, create legal prohibition. Rather, its only potential relevant effect is as a relevant consideration in terms of the EP&A Act, s 79C(1)(a)(iii). 22. The case was conducted before the Commissioner upon the common basis (which she accepted—vide par 26 of her judgment) that the relevant provisions of the draft DCP were to be taken into consideration in the evaluation required by the EP&A Act, s 79C(1) to be made. 23. In this respect, the Commissioner cited the decision of Lloyd J in Carstens v Pittwater Council (1999) NSWLEC 249 where his Honour held that the EP&A Act s 79C(1) was not an exclusive code and that its content was not "the only matters to which a consent authority may have regard". In particular, he held that draft development plans (including the draft DCP relevant in the current case) and a "Values Statement" issued by the Council were relevant matters to be taken into consideration in the determination of a development application because they were matters within "the subject matter, scope and purpose of the Act". 24. However, having so held, Lloyd J immediately stated: Once it is determined that a matter is a relevant consideration it is then a question for the decision-maker to determine what weight should be given to it. In BP Australia Ltd v Campbelltown City Council Mahoney JA said (at 279): Thus, within proper limits, it is for the authority to determine what weight should be given to each of the relevant considerations in the process of weighing them. If quite disproportionate weight is given to one consideration, discretion may miscarry and the decision made may be set aside. But subject to such cases, it is open to the authority to decide what weight should be given to each of the considerations. ... 25. That the weight to be given to the draft DCP was a matter entirely for the Commissioner is illustrated by another decision of Lloyd J handed down shortly before his decision in Carstens . This is his judgment on a s 56A appeal in Hoskins v Waverley Council (1999) NSWLEC 236 where the two grounds of appeal argued were that the Commissioner erred in law (i) in failing to give any weight to a relevant draft development control plan and (ii) in failing to apply another development control plan that was in force under the EP&A Act s 72 . 26. In dismissing the appeal upon the first ground of appeal, Lloyd J said: It is clear that the Commissioner gave consideration to DWLEP 14. The amount of weight to be given to that draft instrument was, however, entirely a matter for the Commissioner. 27. Having cited a number of familiar cases which have affirmed the principle that the weight to be given to a relevant factor is a matter for the decision-maker, Lloyd J concluded at par 15: In the present case the Commissioner described the facts which led him to the view that he should not give DWLEP 14 any weight. It could not be said that the decision to give DWLEP 14 no weight was one which, on those facts, no reasonable mind could not have come. I am not satisfied, in his careful consideration of the place of DWLEP 14 amongst the various matters for consideration, that the Commissioner committed any error of law in attributing to it an absence of weight. 28. In similarly dismissing the appeal upon the second ground of appeal, Lloyd J said at par 18 and par 19: Mr Austin QC's submission, as I understand it, is that the Commissioner was of the opinion that DCP 24 amounted to a de facto rezoning of the subject land and it should not, for that reason, be applied. There is no doubt that the Commissioner considered DCP 24, as he was required to do. The question which is raised is again whether the Commissioner committed an error of law in deciding to give little weight to it. The Commissioner gave so little weight to it that he decided not to apply it at all. The considerations which apply to the first ground of appeal apply equally to this ground. The reasons which have led me to dismiss the first ground of appeal also lead me to dismiss the second ground. Having fully considered the effect of DCP 24, the Commissioner was fully entitled to give it little or no weight. In doing so the Commissioner has not committed any error of law. It was reasonably open to the Commissioner to find that it would be unreasonable and unfair to apply DCP 24. The question of the weight to be accorded to it is a question of fact which cannot be disturbed unless the determination was manifestly unreasonable. There is nothing to suggest that the determination in this case was manifestly unreasonable. 29. In the present case, having demonstrated that the Appellant's argument is founded upon a false major premise (ie that the only permissible manner in which there could be variations from the relevant stipulations of the draft DCP was for the Commissioner to follow the method prescribed in that behalf by the draft DCP), it follows, in my opinion, that the Appellant's attack upon the Commissioner's " consideration " of relevant matters (and especially the draft DCP) in her evaluation of the development application rises no higher, and can rise no higher, than an attack upon the weight she gave to those relevant matters, or to put it another way, is a criticism of how she considered those relevant matters (including, most importantly, her consideration of the " consistency " of the proposed development with the character of the area and with the zone and draft DCP objectives). 30. As such, no appealable error of law is exposed and the appeal must accordingly be dismissed with costs. Moreover, in seeking to invade (by analysis and dissection) the calculus or anatomy of the consideration given by the Commissioner to relevant matters under the EP&A Act, s 79C(1), the scope of the Appellant's appeal travels far beyond the boundaries that have been established for judicial scrutiny (either by the process of judicial review or appeal for error of law) of a discretionary planning judgment made under the EP&A Act, s 79C(1). 31. In so concluding, I have been content to assume the correctness of the Appellant's analysis of the Commissioner's judgment. However, for completeness, I should record the Respondent's cogent submissions in rebuttal of the Appellant's analysis of the Commissioner's judgment, and of the Appellant's argument. 32. However, since I have determined that the Appellant's appeal must fail (even accepting the Appellant's argument at its inflated highest) I do not think it necessary to consider in detail the Respondent's arguments in rebuttal, save to say that I think that the Respondent's analysis of the Commissioner's judgment offers a more reasonable interpretation of it and one that is consonant with the long established practice in this Court (flowing from the Court of Appeal's decision in Brimbella Pty Ltd v Mosman Council (1985) 79 LGERA 367) that in determining appeals pursuant to s 56A of the Court Act, the Court eschews a "too narrow examination of the words used in the decision of a lay tribunal". 33. For all the foregoing reasons, I order that the appeal be dismissed with costs. ANNEXURE (3 pages) 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.