Fabcot Pty Ltd v North Sydney Council [2005] NSWLEC 554

Land and Environment Court of New South Wales

CITATION : Fabcot Pty Ltd v North Sydney Council [2005] NSWLEC 554

APPLICANT: Fabcot Pty Ltd

PARTIES : RESPONDENT: North Sydney Council

FILE NUMBER(S) : 11584 of 2004

CORAM: Bignold J

KEY ISSUES: Question of Law :- appeal against Commissioner's judgment—construction of a provision of Development Control Plan specifying maximum carparking rates.

Land and Environment Court Act 1979, s 56A LEGISLATION CITED: North Sydney Development Control Plan 2002

Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139; CASES CITED: Zhang v Canterbury City Council (2001) 51 NSWLR 589

DATES OF HEARING: 31/08/2005

DATE OF JUDGMENT: 10/06/2005

APPLICANT: N Hemmings QC SOLICITORS Allens Arthur Robinson

LEGAL REPRESENTATIVES:

RESPONDENT: P J McEwen SC SOLICITORS Maddocks

JUDGMENT:

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

BIGNOLD J

6 October 2005

11584 of 2004 FABCOT PTY LIMITED v NORTH SYDNEY COUNCIL

JUDGMENT A. INTRODUCTION 1 HIS HONOUR: This is an appeal pursuant to the Land and Environment Court Act 1979, s 56A against the decision of Commissioner Moore upholding an appeal and granting development consent for the redevelopment of an existing building situate at Nos 1-7 Rangers Road, Neutral Bay for a Woolworths Supermarket, liquor store, commercial office space with basement carparking. The Commissioner's judgment was published on 19 April 2005 (see (2005) NSWLEC 180) and final orders disposing of the proceeding were made on 15 June 2005. 2 The Council's appeal against the Commissioner's decision is limited to a question of law (s 56A(1)). 3 On the hearing of the appeal, the Council pressed only one of the two grounds for appeal it had raised in its Notice of Motion instituting the appeal. That ground was that the Commissioner "incorrectly applied the DCP in relation to calculation of parking requirements": vide par 1(a) of the Notice of Motion filed 7 July 2005. 4 The reference in this stated ground to "the DCP" is a reference to the North Sydney Development Control Plan 2002, Section 9 of which contains provisions relating to carparking requirements for certain developments and which the Commissioner, in his judgment held to be applicable to the required determination of the development application and were to be accorded "considerable weight" (vide paragraphs 60 to 78 of his reasons for judgment). 5 In its written submissions in support of its appeal, the Council submitted that the Commissioner had "misconstrued or misapplied the DCP". I interpose that "misconstruction" of a relevant statutory provision will always involve a question of law but "misapplication" of a statutory provision to the facts as found only exceptionally will involve a question of law: see Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 156/157. 6 The Applicant contests the Council's allegations of misconstruction of the DCP and misapplication of the DCP to the primary facts, and submits that the Council's allegations are in truth but a futile attempt (in the context of s 56A) to convert questions of fact into questions of law. 7 Finally, the Applicant submits that there was an abundance of evidence adduced at the hearing before the Commissioner relating to the carparking ramifications of the proposed development which supported the Commissioner's various findings of primary fact and his ultimate finding expressed in the following terms in par 141 of his reasons: In total, therefore, I have concluded that on any proper construction of cl 9.2.a.vii, it is appropriate to accept the provision of car spaces on the site as envisaged by the application as there will be no additional adverse vehicle parking impacts on surrounding residential streets as a consequence of the application either at present time or 10 years hence. 8 As will presently be shown the manner in which this ultimate finding is expressed appears to have been largely influenced by the express terms of the DCP. But the ultimate finding also (and doubtless in the context of the statutory task imposed by the Environmental Planning and Assessment Act 1979, s 79C) is referable, and responsive, to the sole issue raised by the Council at the hearing of the development appeal, namely that there would be a significant shortfall between the actual parking demand generated by the proposed development and the on-site carparking provided by the proposal. 9 A full appreciation of the broader scope and context of the ultimate finding at par 141 is gained by reference to the following paragraphs of the Commissioner's reasons under the heading "Conclusions":— 216 I therefore concluded that there is no basis on either the sole determinative ground proposed by the council (that is the council's view that there is inadequate parking provided by the site) or on any accumulation of lesser grounds why the appeal should be dismissed.