Lonergan v Byron Shire Council [2001] NSWLEC 85

Land and Environment Court of New South Wales

CITATION : Lonergan v Byron Shire Council [2001] NSWLEC 85 APPLICANT: Lonergan PARTIES : RESPONDENT: Byron Shire Council FILE NUMBER(S) : 10497 of 1997 CORAM: Talbot J KEY ISSUES: Section 56A Appeal :- error of law LEGISLATION CITED: Land and Environment Court Act 1979 s56A Byron Local Environmental Plan 1988 CASES CITED: Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 DATES OF HEARING: 31/07/2000 EX TEMPORE JUDGMENT DATE : 07/31/2000

APPLICANT: Mr P W Larkin (Barrister) SOLICITORS: John D Weller & Associates

LEGAL REPRESENTATIVES: RESPONDENT: Mr P R Clay (Barrister) SOLICITORS: Wilshire Webb

JUDGMENT: IN THE LAND AND Matter No. 10497 of 1997ENVIRONMENT COURT Coram: Talbot JOF NEW SOUTH WALES Decision Date: 31 July, 2000Christopher Raymond Lonergan ApplicantvByron Shire Council RespondentREASONS FOR JUDGMENT1. HIS HONOUR: After a hearing extending over two days on 29 and 30 March 1999, Commissioner Bly delivered a judgment in this matter on 8 April 1999. He decided that the proposed development, which was the subject of a development application to use existing structures and facilities at New Brighton, be refused. The essential ground for refusing the development application was that the facilities did not fall within the description of the only relevant permissible use in the zone, namely beach amenities. It is not necessary for me to analyse the reasoning by which the Commissioner reached his decision on 8 April 1999, because it was the subject of an appeal pursuant to s 56A of the Land and Environment Court Act 1979 ("the Court Act"). That appeal was determined by the Chief Judge on 11 February 2000.2. In summary her Honour identified a specific line of reasoning by the Commissioner. It dealt with a single question he had asked himself. The particular section of the judgment commenced at p 3 of the Commissioner's judgment, under the heading Beach Amenities or Dwelling House. It then continued through to p 8 where he answered the question he set in the first paragraph, namely whether the proposal comprises beach amenities or a dwelling house.3. Her Honour found that the Commissioner misdirected himself by asking himself the wrong question. He sought to make a choice between beach amenities or a dwelling house, whereas the correct approach, as outlined by her Honour, was to simply ask whether or not the proposed use was beach amenities within the meaning of the subject LEP. The essential and critical finding by her Honour, for present purposes is in par 11 of her judgment.4. The present appeal is from a second decision made by Commissioner Bly following an order made by her Honour that the proceedings be remitted to the Commissioner for determination in accordance with her Honour's judgment. The Commissioner made that second decision on 21 March 2000.5. I hope I do no disrespect to Mr Larkin's argument by saying that the underlying ground for the appeal is that it was not open to the Commissioner to re-determine the question of whether or not the facilities were beach amenities. The reason for the submission is that the Commissioner had determined that very question in the first proceedings and her Honour had not effectively set aside that determination, or interfered with it.6. That argument is immediately attractive when one considers the language used by the Commissioner in the first judgment. He said that he accepted the proposal could comprise beach amenities for the purpose of the land use table. After dealing with some further argument he reiterated as follows at p 5:-... I accept that the structures and facilities which presently exist on this site could be categorised as beach amenities.7. He went on to analyse the structures in the context of the definition of a dwelling house contained in the LEP, and said at p 7:-I therefore conclude that the existing structures and facilities comprise a dwelling house.8. And finally in the last paragraph in this section of his judgment he said at p 8:-... I propose to decide this question on the basis of which of the two categorisations is more likely given the nature of the use and the existing structures and facilities.9. He then went on to speak of the scale and nature and the degree of sophistication of the structures. He held that it took them beyond what he expected as being amenities to simply support a day or days at the beach, to being sufficient for people to live on the site.10. What the Commissioner appears to have done is set a course of answering a specific question, so that he could make a choice. Indeed, he says that specifically. He does not exclude either prospect but finally comes down in favour of the structure being a dwelling house rather than something else that might fit within what is properly understood to be beach amenities.11. It is important to consider how her Honour dealt with the Commissioner's approach. After quoting what was said by Glass JA, as he then was, in Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 156 her Honour said the following in par 11 at p 5:-But the Commissioner reached a decision that the proposed use was prohibited, not because it failed to meet the appropriate description in the list of permissible uses, but because it was a dwelling house. That demonstrates the Commissioner's misdirection to himself, and it infected the whole of the Commissioner's reasoning. Having posed the question for determination as being whether the proposed use was beach amenities or dwelling house, he proceeded to determine that the proposed use could be beach amenities. But since he considered that he was dealing with two separate categories, he did not stop there, but went on to determine that the proposed use could also be a dwelling house, and that it was, on the facts, more likely to be a dwelling house.12. Effectively, her Honour ruled three things out of the Commissioner's judgment. Firstly, the question that he asked, secondly, the reasoning that he adopted in attempting to answer the question and ultimately, the answer. Although the Commissioner reached a conclusion that the subject structure could be beach amenities, it is nevertheless not appropriate to say that the Commissioner made a finding that can be ultimately relied upon as a determination of that question. He made the determination in the course of a process of reasoning which involved a balance. In other words, having asked the wrong question at the outset, any answers that were given, either ultimately or as intermediate answers, were caught up by her Honour's finding. Having asked the wrong question, that infected the whole of the Commissioner's reasoning.13. I am satisfied, therefore, that the referral or remittal back to the Commissioner by her Honour was an invitation to commence the reasoning process anew by asking the correct question in accordance with her Honour's ruling. The Commissioner, in my view, correctly identified that question in par 9 of his second judgment when he said at p 2:-Hence, the question which I am now required to decide is whether the proposal comprises, on the evidence available, beach amenities.14. That question is to be contrasted with the question earlier set out and which he asked at p 3 in the first judgment.15. During the course of argument there was some debate as to what is the effect of the order made by her Honour that the proceedings are remitted to the Commissioner for determination in accordance with her judgment. In the light of the answer I have given that question does not arise. The Commissioner was directed by her Honour to start again by asking the right question, and then proceeding through his reasoning to a determination. There is no question nevertheless that some parts of the earlier judgment in a relevant sense for this appeal could remain and could not be disturbed by the later finding of the Commissioner.16. The question of law whether the Commissioner erred in his second judgment by failing to find that the structures and facilities the subject of the development application were beach amenities, is answered in the negative.17. The final matter raised by the appellant is rightly to be regarded as an amplification or an explanation of the second question. The notice of motion identifies a ground of appeal that the Commissioner erred in law by failing to follow his previous finding of fact, that the structures and facilities could be categorised as beach amenities. As I have said, even if the Commissioner did find that the structures and facilities were beach amenities, it was in the context of the process of making a comparison. As her Honour said, the reasoning was wholly infected by asking the wrong question in the first instance.18. I am satisfied that the Commissioner dealt with the matter properly on the second occasion. Accordingly, he did not err in law for either of the grounds referred to in the notice of motion. The appeal is dismissed.19. CLAY: Seek costs your Honour.20. LARKIN: I've nothing to say.21. HIS HONOUR: I think it is now well established that where an appeal proceeds pursuant to s 56A the normal rule applies. The Practice Direction does not reduce the argument to one as to whether there are exceptional circumstances. The respondent to the appeal, the respondent in the proceedings, has been wholly successful. Nothing has been put to me that would persuade the Court to exercise its discretion having regard to any special considerations. I order that the applicant, the appellant, pay the respondent's costs in relation to the appeal.