Land and Environment Court of New South Wales CITATION : Segal & Anor v Waverley Council [2004] NSWLEC 363 APPLICANTS: Julian Segal and Lucille Melanie Segal PARTIES : RESPONDENT: Waverley Council FILE NUMBER(S) : 10547 of 2003 CORAM: Lloyd J KEY ISSUES: Appeal :- decision of commissioner - reasons for decision - adequacy - absence of reasons - a principal contested issue - consistency in administrative decision-making - error of law LEGISLATION CITED: Land and Environment Court Act 1979 s 56A Baulkham Hills Shire Council v Basemount Pty Ltd (2003) 126 LGERA 339; Beale v GIO of NSW (1997) 48 NSWLR 430; Botany Bay Council v Farnworth Holdings Pty Limited [2004] NSWCA 157; Boyce v Burwood Municipal Council (1964) 10 LGRA 280; Brimbella Pty Ltd v Mosman Municipal Council (1985) 79 LGERA 367; Crusade Constructions Co Pty Ltd v Sutherland Shire Council (1961) 6 LGRA 372; Darling v Waverley Council [2003] NSWLEC 327; Farnworth Holdings Pty Ltd v Botany Bay Council [2003] NSWLEC 177; Foreman v Sutherland Shire Council (1964) 10 LGRA 261; Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378; Hunter District Industries Pty Ltd v Newcastle City Council (1957) 2 LGRA 240; JOL Pty Ltd v Waverley Municipal Council (1971) 22 LGRA 152; La Macchia v Minister for Primary Industries and Energy (1992) 110 ALR 201; Leeroy Television Service Pty Ltd v Leichhardt Municipal Council (1970) 21 LGRA 40; Michael Realty Pty Ltd v Carr [1975] 2 NSWLR 812; Mifsud v Campbell (1991) 21 NSWLR 725; CASES CITED: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; North Sydney Council v Ligon 302 Pty Ltd (1995) 87 LGERA 435; Northern NSW FM Pty Ltd v Australian Broadcasting Tribunal (1990) 26 FCR 39; Pancho Properties Pty Ltd v Wingecarribee Shire Council (1999) 110 LGERA 352; Q & R Developments Pty Ltd v Sutherland Shire Council (2001) 117 LGERA 438 ; Re Drake v Minister for Immigration and Ethnic Affairs (No.2) (1979) 2 ALD 634; Regent Project (No. 6) Pty Ltd v Hornsby Shire Council (1970) 20 LGRA 316; Segal & Anor v Waverley Council [2004] NSWLEC 60; Shellcove Gardens Pty Ltd v North Sydney Municipal Council (1961) 6 LGRA 93; Smith v Wyong Shire Council (No. 2) (1980) 41 LGRA 202 ; Soboleva v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 353; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247; Stadurn Pty Limited v Blacktown City Council [2004] NSWLEC 348; Steedman v Baulkham Hills Shire Council (No. 2) (1993) 31 NSWLR 562; 80 LGERA 23; Westport Marina Developments Pty Ltd v Concord Council (2000) 109 LGERA 451; Willoughby Municipal Council v Manchil Pty Ltd (1974) 29 LGRA 303; Winten Property Group Ltd v North Sydney Council (2001) 130 LGERA 79 DATES OF HEARING: 29/06/2004 DATE OF JUDGMENT: 07/20/2004 APPLICANTS: Mr M G Craig QC and Mr I J Hemmings (barrister) SOLICITORS: Morgan Lewis Alter LEGAL REPRESENTATIVES: RESPONDENT/APPELLANT: Dr J E Griffiths SC and Ms J M Jagot (barrister) SOLICITORS: Staunton Beattie JUDGMENT: - 11 - IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Lloyd J Tuesday, 20 July 2004 No.10547 of 2003 SEGAL & ANOR – v – WAVERLEY COUNCIL [2004] NSWLEC 363 JUDGMENT Introduction 1 This is an appeal under s 56A of the Land and Environment Court Act 1979 by the respondent, Waverley Council ("the council"), against a decision of Commissioner Watts. The applicants for consent, Mr and Mrs Segal, had appealed against a decision by the council to refuse a development application for the provision of an onsite garage that would require the demolition of part of a sandstone retaining wall. The owners of the neighbouring property, Mr and Mrs Darling, had also lodged an appeal against the council's refusal of a development application for the provision of an onsite garage on their property, which would also require demolition of part of the same sandstone retaining wall. The owners of the neighbouring property had their appeal heard on 17 and 18 December 2003 before Commissioner Moore who dismissed the appeal in an ex tempore judgment delivered on 18 December 2003: see Darling v Waverley Council [2003] NSWLEC 327. 2 The applicants for consent in these proceedings had their appeal heard before Commissioner Watts on 29, 30 and 31 October 2003, and also on 21 and 22 February 2004 after Commissioner Moore's judgment was delivered. On 27 February 2004, Commissioner Watts upheld the appeal and determined that the development application ought to be approved subject to conditions: see Segal & Anor v Waverley Council [2004] NSWLEC 60. The decision makes no reference, either express or implied, to the decision of Commissioner Moore, nor to any distinguishing features between the two development applications, yet the wall is a continuous wall some 2.45 metres high and is identified in the relevant planning instrument as a landscape item within a heritage conservation area. The grounds of appeal 3 The council relies upon the following grounds of appeal in seeking to have the orders made by Commissioner Watts set aside: (1) The Commissioner failed to have regard to the decision of Commissioner Moore in Darling v Waverley Council [2003] NSWLEC 327 (" Darling's Case "). (2) In the alternative to ground 1, the Commissioner failed to give adequate reasons or any reason at all for distinguishing the decision of Commissioner Moore in Darling's Case . (3) The Commissioner failed to have regard to the circumstances of the case and public interest as required by section 39(4) of the Land and Environment Court Act 1979. The parties' submissions 4 Dr J E Griffiths SC, appearing with Ms J M Jagot for the appellant council, relies upon the following submissions. (a) The earlier decision of Commissioner Moore and its significance for the subject application was a matter of central importance to the proper disposition of the appeal. (b) Commissioner Watts' failure to provide reasons as to whether the principles of consistency in decision-making should be applied, constituted an error of law (Beale v GIO of NSW (1997) 48 NSWLR 430 at 441-444; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 257-259; North Sydney Council v Ligon 302 Pty Ltd (1995) 87 LGERA 435 at 442-443; Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 385-386; Mifsud v Campbell (1991) 21 NSWLR 725 at 728; Westport Marina Developments Pty Ltd v Concord Council (2000) 109 LGERA 451 at 457; Winten Property Group Limited v North Sydney Council (2001) 130 LGERA 79 at 95). (c) Commissioner Watts' failure to consider the public interest in the maintenance of consistency in administrative decision-making by reference to previous decisions (specifically, Commissioner Moore's decision), constituted an error of law (Re Drake (No 2) (1979) 2 ALD 634 at 640-645; Hunter District Industries Pty Ltd v Newcastle City Council (1957) 2 LGRA 240 at 248-249; Shellcove Gardens Pty Ltd v North Sydney Municipal Council (1961) 6 LGRA 93 at 102; Crusade Constructions Co Pty Ltd v Sutherland Shire Council (1961) 6 LGRA 372 at 376-377; Foreman v Sutherland Shire Council (1964) 10 LGRA 261 at 269; Boyce v Burwood Municipal Council (1964) 10 LGRA 280 at 282-283; Regent Project (No. 6) Pty Ltd v Hornsby Shire Council (1970) 20 LGRA 316; Leeroy Television Service Pty Ltd v Leichhardt Municipal Council (1970) 21 LGRA 40 at 42-43; JOL Pty Ltd v Waverley Municipal Council (1971) 22 LGRA 152 at 155; Willoughby Municipal Council v Manchil Pty Ltd (1974) 29 LGRA 303 at 309-310; Smith v Wyong Shire Council (No. 2) (1980) 41 LGRA 202 at 212-214). (d) If the appeal is successful the matter should not be remitted back to Commissioner Watts as there is a reasonable apprehension of pre-judgment in the circumstances of this case (Baulkham Hills Shire Council v Basemount Pty Ltd (2003) 126 LGERA 339). Upon consideration of fairness to the parties the matter should be remitted back to a commissioner other than Commissioner Watts (Northern NSW FM Pty Ltd v Australian Broadcasting Tribunal (1990) 26 FCR 39). 5 Mr M G Craig QC, appearing with Mr I J Hemmings for Mr and Mrs Segal, the respondents in this appeal, relies upon the following submissions. (a) Commissioner Watts was not bound by the decision of Commissioner Moore. There is no authority for the proposition that a judge or commissioner must set out reasons why he or she distinguished a decision by which he or she was not bound. (b) Commissioner Watts applied the correct principles to his merit assessment of allowing the sandstone wall to be breached. (c) Commissioner Moore's decision on the merits, as he perceived them, of the matter before him was neither crucial nor vital to the determination of the merits of the case heard by Commissioner Watts (North Sydney Council v Ligon 302 Pty Ltd (1995) 87 LGERA 435 at 442). (d) Reasons for decision must: (i) refer to the relevant evidence; (ii) set out any material finding of fact and any consideration or ultimate finding of fact reached, and (iii) provide reasons for making the relevant finding of fact and in applying the law to the facts found (Beale v GIO of NSW (1997) 48 NSWLR 430 at 441-444). On this basis no error has been disclosed in Commissioner Watts' decision. (e) Even if Commissioner Watts was required to distinguish Commissioner Moore's decision and set out his reasons for doing so, there is no error in his ultimate conclusion on the merits. Even if there was an error of law, the Court should not disturb the commissioner's findings on the merits. (f) If the appeal is successful, there is nothing about the alleged error of law that would require the matter to be remitted to another commissioner (Baulkham Hills Shire Council v Basemount Pty Ltd (2003) 126 LGERA 339 at 346). Consideration The extent of the requirement to give reasons 6 A judicial officer must state the grounds upon which the decision is based: Beale v GIO of NSW (1997) 48 NSWLR 430 at 441, Farnworth Holdings Pty Ltd v Botany Bay Council [2003] NSWLEC 177 at [15]. In Beale v GIO of NSW, Meagher JA helpfully outlines the following reasons for this requirement (at 441-442): (a) to allow an appeal court to determine whether there has been an error of law; (b) to enable a party to know or understand why the decision was made and to enable a losing party to understand why they lost; (c) to maintain public acceptance of judicial decisions and the judicial system; and (d) to guard against unconsidered or impulsive decisions. 7 In Brimbella Pty Ltd v Mosman Municipal Council (1985) 79 LGERA 367 at 368, Kirby P (with whom McHugh JA concurred) suggested that the decisions of assessors (as commissioners were then called) of the Land and Environment Court should not be examined too narrowly. Although this decision appears to have been adopted by a single judge of the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 per Kirby J at 291, this Court is bound by the recent decision of the New South Wales Court of Appeal in Botany Bay City Council v Farnworth Holdings Pty Ltd [2004] NSWCA 157. In that case, Ipp JA (Bryson JA and Cripps AJA concurring) expressly disagreed with the contention that commissioners have a less onerous duty to give reasons than judges. 8 Although the duty to give reasons does not extend to every matter of fact or law which was or might have been raised in the proceeding (Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 385-386), the duty to give reasons clearly applies to findings on the principal contested issues, or any issue that is central or critical to the case: Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 259; Mifsud v Campbell (1990) 21 NSWLR 725 at 728; North Sydney Council v Ligon 302 Pty Ltd (1995) 87 LGERA 435 at 422-443; Beale v GIO of NSW at 443; Farnworth Holdings Pty Ltd v Botany Bay City Council at [15]; Westport Marina Developments Pty Ltd v Concord Council (2000) 109 LGERA 451 at 457; Winten Property Group Limited v North Sydney Council (2001) 130 LGERA 79 at 95. Commissioner Watts, therefore, was obliged to give reasons concerning the principle of consistency in decision-making, if this was either a central or a principal contested issue in the proceedings. Was the principle of consistency in administrative decision-making a principal contested issue before Commissioner Watts? 9 The transcript of the proceedings before Commissioner Watts on 23 February 2004 shows that the principle of consistency in administrative decision-making was placed squarely before the Commissioner for consideration. This is evident in the following extract (at p 20 of the transcript) in the course of submissions on the relevance of Commissioner Moore's decision: NEWPORT: …. but the first and paramount point is that one month ago a Commissioner of this Court right next door rejected a proposal which was to cut an opening into that wall and we would say for comity you would not want to arrive at a different conclusion. 10 The issue of consistency in decision-making was once again raised, in relation to Commissioner Moore's decision (at p 78 of the transcript), as follows: NEWPORT: Commissioner Moore would say to you, that was the point I was going to make, with the disparity of opinions, Commissioner Moore's approach was to say and I read those two sentences out to you, that tell you that it is – L42 effectively imports the whole of the sense of the place of the eastern portion of Gardyne Street and what you, with the greatest respect, would do is, you're not bound by another commissioner's judgment but there is comity there, as there is with judges. COMMISSIONER: I'm happy to accept that. NEWPORT: The Commissioner also with the same wall next door, the same instrument with the same conditions arrived at a conclusion that there ought to be no break of that wall. Why? Because of the importance of that, given its heritage significance and I submit to you that it would render the decision making of this Court, particularly given the newness of this decision, it would render it one that would – it would render it so that it would induce lack of public confidence in the decision making. I have never seen a case that I could put to you so squarely along those lines because constantly cases come forward which are different that you are able to distinguish them and say, well, they turn solely on their facts but the facts here relevant are identical. The only possible avenue of difference could be the ownership which I say to you is not a relevant public interest and one that you are not empowered to consider under section 79C. 11 The opposing counsel sought to distinguish Commissioner Moore's decision, for example, (as shown at p 84 of the transcript) as follows: HEMMINGS: …. Can I point out the matters that are different, relevantly different between the Darling decision and the Court's decision of this application?… 12 The applicability of the principle of consistency of decision-making was thus a significant issue raised by the parties in the proceedings before Commissioner Watts. Although the principle of stare decisis did not apply to the commissioner in that the earlier decision was not binding upon him, he was still bound to consider the applicability of the principle that there should be consistency between decision-makers. In Soboleva v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 353, Moore J considered the requirement of consistency in administrative decision-making in relation to the Refugee Review Tribunal (at 360): However, the question remains whether when the tribunal reaches a decision which involves findings which are apparently or arguably inconsistent with findings in an earlier decision, it is required to address that apparent inconsistency, at least in cases where the earlier decision has been referred to by a party as material relevant to review. Section 430 of the Migration Act [1958 (Cth)] requires the Tribunal to set out its findings on material questions of fact and identify the material on which those findings are based. The Full Court in Minister for Immigration and Multicultural Affairs v Singh (2000) 98 FCR 469 held that a failure to comply with s 430 is a reviewable error of law of the type contemplated by s 476(1)(a), that is an error of law whereby procedures required by the Act to be observed in connection with the making of a decision are not observed. 13 In a later passage, Moore J said (at 361): However, where an earlier decision is both factually similar and temporally proximate to the circumstances of the application before the Tribunal and the earlier decision has been referred to and relied on by a party but not considered and referred to by the Tribunal, it may arguably give rise to error reviewable in this Court. 14 In Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, another case relating to administrative decision-making, Brennan J stated (at 643): One of the factors to be considered in arriving at the preferable decision in a particular case is its consistency with other decisions in comparable cases… 15 In Stadurn Pty Limited v Blacktown City Council [2004] NSWLEC 348, Pain J referred (at [35]) to Re Drake in emphasising the importance of the consideration of integrity and consistency in the context of a planning appeal. 16 Moreover, it is well recognised that judges of first instance are usually required to follow the decision of another judge at first instance in the same jurisdiction as a matter of judicial comity, unless convinced the judgment was wrong or there was some other distinguishing feature: Michael Realty Pty Ltd v Carr [1975] 2 NSWLR 812 at 820; La Macchia v Minister for Primary Industries and Energy (1992) 110 ALR 201 at 204; Pancho Properties Pty Ltd v Wingecarribee Shire Council (1999) 110 LGERA 352 at 369-370; Q & R Developments Pty Ltd v Sutherland Shire Council (2001) 117 LGERA 438 at 443. If a judge decides to not follow a decision of another judge then he or she must give reasons therefor. 17 This requirement also applies to commissioners of this Court. The Commissioner was thus obliged to give reasons as to why there should not be such consistency in the present case. It may have been that Commissioner's Moore decision was wrong, or that there were distinguishing features of the present case. The Commissioner, however, did not refer to any distinguishing facts or circumstances relating to the earlier decision: he did not refer to the issue at all, despite the fact that it was an important question raised by the parties. As a consequence the Commissioner failed to refer at all to a principal contested issue between the parties, or to provide any reasons or a finding on that contested issue. Does the Commissioner's failure to give reasons constitute an error of law? 18 In Beale Meagher JA held (at 444) that an appeal court will intervene in those situations where no reasons have been given in circumstances where there was an obligation to provide them, and "in circumstances where a statement of reasons is so inadequate as to constitute a miscarriage of justice". As noted above, a failure to give reasons in circumstances where there was a duty to do so (such as on a principal contested issue) is an error of law. 19 One of the purposes for the giving of reasons is that it enables parties to see the extent to which their arguments have been understood and accepted: Soulemezis at 279 per McHugh JA, Beale at 441-442 per Meagher JA. Commissioner Watts' failure to give any reasons concerning the contested issue of consistency in decision-making left the council in the dark as to how a primary contentious issue in the proceedings was resolved. As noted above, the Commissioner's decision makes no mention at all of either the issue or the decision of Commissioner Moore regarding the adjoining development. This omission prevents this Court from ascertaining whether the Commissioner considered the issue in question at all; and prevents the parties, and the community, from understanding why the council's decision to refuse an opening in the sandstone retaining wall within a heritage conservation area was upheld by Commissioner Moore but rejected by Commissioner Watts. Such an outcome diminishes public confidence in administrative appeals and public acceptance of administrative decision-making. I am satisfied, therefore, that in this instance the failure of Commissioner Watts to give any reasons relating to the issue of consistency in decision-making, and specifically in relation to Commissioner Moore's decision, constituted an error of law. 20 The appeal is upheld. In these circumstances it is appropriate for the matter to be remitted for rehearing. Remittal of the matter 21 In the remittal of successful appeals from this Court, the Court of Appeal has generally declined to interfere in the internal listing arrangements in the Court (eg. Steedman v Baulkham Hills Shire Council (No. 2) (1993) 31 NSWLR 562 at 576, 80 LGERA 23 at 32). Section 36 of the Land and Environment Court Act states that the listing arrangements are a matter entirely for the Chief Judge. Having earlier noted the competing submissions of the parties on this matter, I leave the constitution of the court for the re-hearing of the remitted proceedings to the Chief Judge. 22 It also follows that the council is entitled to an order for costs. Mr Craig QC has submitted, however, that in the event that the council is successful then the applicants would be entitled to a certificate under the Suitor's Fund Act 1951. Orders 23 I make the following orders: (1) The appeal pursuant to s 56A of the Land and Environment Court Act 1979 against the decision of Commissioner Watts is allowed; (2) The decision and orders of Commissioner Watts dated 27 February 2004 are set aside; (3) The proceedings are remitted to the Court for re-hearing and re-determination in conformity with the law; and (4) The applicants pay the respondent's costs of the appeal, but are to have a certificate under the Suitors' Fund Act 1951. I hereby certify that the preceding 23 paragraphs are a true copy of the reasons for judgment herein of the Honourable Mr Justice D H Lloyd. Associate Dated: 20 July 2004 ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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