Land and Environment Court of New South Wales CITATION : Loombah Investments v Ku-ring-gai Council [2005] NSWLEC 681 Loombah Investments (Appl/Resp on s 56A)) PARTIES : Ku-ring-gai Council (Resp/Appl on s 56A) FILE NUMBER(S) : 10816 of 2004 CORAM: McClellan CJ Appeal :- Section 56A appeal KEY ISSUES: Whether Commissioner erred in law in failing to determine all of the issues in dispute Housing Commission of NSW v Tatmar Pastoral Co Pty Limited (1983) 3 NSWLR 378; CASES CITED: North Sydney Council v Lygon 302 Pty Limited (1995) 87 LGERA 435; Wintern Property Group Limited v North Sydney Council (2001) 130 LGERA 79 DATES OF HEARING: 29 July 2005 EX TEMPORE JUDGMENT DATE : 07/29/2005 M Craig QC (Appl/Resp on s 56A) Maddocks (Appl) LEGAL REPRESENTATIVES: C J Leggat (Resp/Appl on s 56A) Abbott Tout (Resp) JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES McCLELLAN CJ FRIDAY 29 JULY 2005 10816/04 LOOMBAH INVESTMENTS v KU-RING-GAI COUNCIL JUDGMENT 1 HIS HONOUR : This matter comes before me this morning by way of an appeal pursuant to s 56A from a decision of Senior Commissioner Roseth. The application which was considered by the Senior Commissioner was for approval to erect a new dwelling to be the second dwelling of a detached dual occupancy on land known as 2 Loombah Avenue Lindfield. 2 Apparently, the council has various development controls which were relevant to the consideration of the application. Assessing the application against those controls the council determined that the application should be refused and supported that position on appeal. 3 The Court appointed an expert planner to assist in the resolution of the matter. The appeal followed the normal course for such a matter in this Court and the parties met with their representatives and the expert on site at the beginning of the hearing. 4 The application and its likely consequences were discussed and considered on site and then the parties came back to court where further evidence was received and submissions were made. The Senior Commissioner then resolved the matter and published his reasons. He decided that the application should be approved subject to a number of conditions, one of which included a reference to the plans the subject of the approval. 5 That condition says: "The development to be in accordance with development application No 911/03 and development application plans prepared by ARC Architects, reference No DA01C, and DA02C dated 15 October 2004." 6 Apparently, during the course of the hearing discussion had taken place in relation to the suitability of the courtyard proposed for the new dwelling both as to its internal amenity and also as to the means for accessing it from the dwelling. A plan was prepared and was in evidence before the Commissioner which contemplated stairs leading from the dwelling to the courtyard. That plan gave rise to controversy because it was submitted that the opportunity to intrude upon the privacy of the adjoining dwelling would be available from those stairs. It was in part that issue to which the Commissioner was referring in para 6 of his reasons for decision where he identified that a major difference between the parties was the use of stairs leading from the living area to the garden. 7 Although it would appear from para 6 that the Senior Commissioner resolved that issue in his mind in favour of the applicant the plans which had been tendered before him did not find their way into the consent which he determined should be issued and the orders of the Court. As a consequence the development as approved by the Commissioner does not include the plan which provides for those stairs. Accordingly, the issue which the Commissioner appeared to have resolved in favour of the applicant was in fact resolved by deleting the stairs. 8 As I understand the submissions of the council, in relation to this appeal, the primary concern has been to protect the amenity of a neighbour, Mr Stirton. Mr Stirton's primary concern was the intrusion upon the privacy of his own dwelling; if the staircase is not to be constructed that concern does not exist. 9 During the course of the hearing this morning it became apparent that the consent, as issued by the Court, does not include the stairway. Accordingly, the substantive reason for the council pursuing this appeal has fallen away. 10 However, the council in its notice of appeal identified a number of other matters which have been addressed by counsel in lengthy written submissions. Those issues relate to matters of streetscape and setback which includes, as I understand it, consideration of the landscaping both present and proposed in relation to the development. Those grounds, as I understand it, are set out in particulars of ground one of the appeal which also includes the issue relating to the open space and the stairway. 11 The council has indicated where each of these matters was raised and considered by the Court during the course of the appeal. Each of them was addressed by the court appointed expert and that person, as I understand it, concluded that although there were some non-compliances with relevant council codes, they were not such as would warrant refusal of the application. There was some cross examination of the expert in relation to those matters but not all of them were discussed. The council's solicitor advanced in submissions reasons why those matters were impediments to approval. Although those matters were advanced, my understanding is that the fundamental complaint was in relation to the immediate impact upon the privacy of the adjoining dwelling. 12 In a very short judgment the Commissioner published his reasons having identified the issues which were before him. In para 4 of his reasons for decision he refers to the evidence of Ms Gordon, the planning expert who was appointed as the court expert. He records the fact, which I understand to be the case, that during the course of the matter various issues were identified and discussed and amended plans were brought forward which were offered by the applicant in an endeavour to resolve the issues in a way which would allow approval. 13 The Commissioner, having identified this course of events, then said in para 6: "In the event there remained only very small differences of opinion between the parties, the major one of which was whether a person using the stairs leading from the living area to the garden could look into the adjoining property." 14 As I understand the Senior Commissioner, he is indicating in his reasons that, although various issues were raised after they had been discussed with the court appointed expert, considered on site, the objectors' views also considered and submissions received from the parties, he came to the conclusion that there was little, if any, substance in the issue in the sense that the parties had reached the position where there were only very small differences of opinion. As I understand it, he accordingly concludes that those matters did not, either alone or together, warrant refusal of the application. Although perhaps he could have been a little more expansive in relation to his resolution of those matters, I do not believe that the decision should be set aside as for that reason containing an error of law. 15 As the submissions from the council point out, there are clear obligations upon commissioners to satisfactorily explain their reasoning when resolving a planning appeal. However, this does not extend to giving reasons in relation to every matter of fact or law which was raised in the proceedings. It extends, however, to a duty to give reasons in relation to the principal issues where a contest remains requiring resolution at the end of the case - see Housing Commission of New South Wales v Tatmar Pastoral Co Pty Limited (1983) 3 NSWLR 378 at 385-386, North Sydney Council v Lygon 302 Pty Limited (1995) 87 LGERA 435 at 442-443 and also Wintern Property Group Limited v North Sydney Council (2001) 130 LGERA 79 at 95. 16 In my opinion, it would be extending the obligation of a commissioner to an unnecessary degree to require them to provide detailed reasons in circumstances where as the hearing has unfolded it has become clear in relation to any particular issue there is only a very small difference of opinion. Certainly, if the position is that a significant difference of opinion remains, the resolution of that difference requires appropriate explanation but whereas here the parties had the benefit of a court appointed expert, discussions with the Commissioner on site, cross examination and detailed submissions and amended plans, all designed to refine the application so as to make it acceptable, I am not persuaded that an error of law has been made by the Commissioner expressing himself as he did in relation to those matters. 17 The position may have been otherwise different if the question of the courtyard and access to it had required resolution but as the consent as ultimately framed does not include provision for the stairway it is unnecessary for me to say anything further in relation to that aspect of the matter. 18 Accordingly, the appeal is dismissed. 19 The resolution of this matter was relatively straight forward once it was recognised that the consent did not extend to include a stairway and, as I should have recorded in my earlier reasons, the applicant for consent accepts that to be the case and does not press for any stairway to be included. To my mind, that point, although I am informed it was raised earlier in the week, should have been brought into clear view at an earlier time which may have led to the resolution of the matter without the necessity for a hearing. I infer from what I have been told that the matter was only raised after a hearing date had been set. 20 In those circumstances it seems to me that although the council has failed in relation to the matters which were ultimately argued, it is appropriate that I make no order in relation to the costs of the appeal. ********** 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.