Reported Decision : (2006) 148 LGERA 233 Land and Environment Court of New South Wales CITATION : Design Power Associates Pty Limited v Willoughby City Council [2005] NSWLEC 470 APPLICANT: Design Power Associates Pty Limited PARTIES : RESPONDENT: Willoughby City Council FILE NUMBER(S) : 10969 of 2004; 10970 of 2004 and 10971 of 2004 CORAM: Lloyd J Appeal :- under s 56A of the Land and Environment Court Act 1979 (NSW) - error of law - proper genuine and realistic consideration of relevant environmental planning instruments - misdirection - adequacy of reasons - failure to consider evidence of objectors - abuse of power - Anshun estoppel KEY ISSUES: Estoppel: - failure to raise certain issues before commissioner - issues raised on appeal for the first time - abuse of process - Anshun estoppel Environmental Planning and Assessment Act 1979 (NSW) s 79C Land and Environment Court Act 1979 (NSW) s 34B, s 38, s 39, s 39A and s 56A Land and Environment Court Rules 1996 Pt 13 r 14 Supreme Court Rules 1970 (NSW) Pt 39 Uniform Civil Procedure Rules 2005 (NSW) Pt 31 Div 3 LEGISLATION CITED: State Environmental Planning Policy No. 19 – Bushland in Urban Areas State Environmental Planning Policy No. 56 – Sydney Harbour Foreshores and Tributaries Sydney Regional Environmental Plan No. 23 – Sydney and Middle Harbours Willoughby Local Environmental Plan 1995 cl 2, cl 13(3), cl 14C and cl 18 Development Control Plan No. 16 – Dwelling Houses, Dual Occupancy and Boarding Houses in Residential Zones cl 2.2.2, cl 4.3, cl 4.4 and cl 4.5 Beale v GIO of New South Wales (1997) 48 NSWLR 430; Bowen v Willoughby City Council [2001] NSWLEC 274; Clifford v Wyong Shire Council (1996) 89 LGERA 240; Coulton v Holcombe (1986) 162 CLR 1; Flannery v Halifax Estate Agencies Ltd [2000] 1 WLR 377; Fletcher Construction Australia Ltd v Lines Macfarlane & Marshall Pty Ltd (No. 2) [2002] 6 VR 1; Guideline Drafting and Design Pty Limited v Marrickville City Council (1988) 64 LGRA 205; Hale v Parramatta City Council (1982) 47 LGRA 319; Housing Commission of NSW v Tatmar Pastoral Co Pty Ltd (1983) 3 NSWLR 378; Manly Council v Hortis (2001) 113 LGERA 321; Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1982) 162 CLR 24; Misfud v Campbell (1991) 21 NSWLR 725; North Sydney Council v Ligon 302 Pty Ltd (1995) 87 LGERA 435; North Sydney Council v Ligon 302 Pty Ltd [No. 2] (1996) 93 LGERA 23; CASES CITED: Page v Parkes Shire Council (1991) 72 LGRA 97; Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589; Randall Pty Ltd v Willoughby City Council [2005] NSWCA 205; Richmond River Shire Council v Ramsey (1988) 66 LGRA 210; Roads and Traffic Authority (NSW) v Perry (2001) 116 LGERA 244; Segal v Waverley Council [2005] NSWCA 310; Shao v Hornsby Shire Council (2001) 116 LGERA 462; State Rail Authority of New South Wales v Hunter Water Board (1992) 78 LGERA 342; University of Wollongong v Metwally [No. 2] (1984) 59 ALJR 447; Walter Construction Group v Fair Trading Administration Corporation [2005] NSWCA 65; Weal v Bathurst City Council (2000) 111 LGERA 181; Woollahra Municipal Council v TAJJ Investments Pty Ltd (1982) 49 LGRA 123; Zhang and Centro Properties Limited v Hurstville City Council (2004) 135 LGERA 257; Zhang v Canterbury City Council (2001) 51 NSWLR 589 DATES OF HEARING: 19/07/2005 and 20/07/2005 DATE OF JUDGMENT: 09/21/2005 APPLICANT: Dr G A Flick SC and G B Newport (barrister) SOLICITORS: Doyles Construction Lawyers LEGAL REPRESENTATIVES: RESPONDENT: B J Preston SC and G Furness (barrister) SOLICITORS: Mallesons Stephen Jaques JUDGMENT: - 27 - IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES LLOYD J Wednesday, 21 September 2005 LEC Nos. 10969-71 of 2004 DESIGN POWER ASSOCIATES PTY LIMITED V WILLOUGHBY CITY COUNCIL [2005] NSWLEC 470 JUDGMENT Introduction 1 LLOYD J: On 15 June 2004, Willoughby City Council refused the applicant's three development applications in respect of three adjoining parcels of land known collectively as No. 72 Sugarloaf Crescent, Castlecrag (the "property"). The applicant appealed to the Court against the refusals. On 19 January 2005, Commissioner Brown allowed the appeals and granted consent to all three development applications. 2 The respondent council now appeals against the decision of Commissioner Brown, such an appeal being limited to a question of law: s 56A of the Land and Environment Court Act 1979 (NSW) (the "Court Act"). 3 The errors of law are said to be apparent upon a reading of the commissioner's reasons. The council relies upon 22 grounds of appeal, and some of those grounds contain many sub-grounds. Nevertheless, the grounds of appeal may be grouped into 5 main categories. The ways in which the commissioner is said to have erred are: (a) failing to consider at all the relevant planning instruments, namely State Environmental Planning Policy No. 19 – Bushland in Urban Areas (" SEPP No. 19 "), State Environmental Planning Policy No. 56 – Sydney Harbour Foreshores and Tributaries (" SEPP No. 56 ") and Sydney Regional Environmental Plan No. 23 – Sydney and Middle Harbours (" SREP No. 23 "); (b) failing to give proper, genuine and realistic consideration to relevant provisions of Development Control Plan No. 16 – Dwelling Houses, Dual Occupancy and Boarding Houses in Residential Zones (" DCP No. 16 ") and in the terms formulated in DCP No. 16 ; (c) misdirecting himself and failing to give proper, genuine and realistic consideration to cll 13(3) and 14C(1) of Willoughby Local Environmental Plan 1995 (" WLEP 1995 "); (d) failing to give reasons, or sufficient reasons; and (e) failing to consider evidence of the objectors, both in the tendered documentary material and in the oral evidence given on site at the hearing, or alternatively, failing to give reasons as to the consideration of such evidence and the acceptance or rejection of it. The Proceedings Before the Commissioner 4 The proposed development involves the demolition of an existing dwelling house which straddles the boundaries of the three allotments and the construction of a house on each allotment. As noted above, following the council's refusal of consent to the three development applications, the applicant appealed. 5 As required by Practice Direction No. 17 – Pre-hearing Practice Direction (the "Practice Direction"), the council filed both a Statement of Issues and an accompanying Statement of Basic Facts. The Statement of Basic Facts filed by the council in the present case describes each proposed development, the locality, and the relevant statutory controls which apply, namely WLEP 1995, SEPP No. 19, SEPP No. 56 and SREP No. 23 and the non-statutory control, DCP No. 16. The Statement of Basic Facts also describes the actions of the council in dealing with the development applications, including public notification thereof and the submissions that were received. 6 The Statement of Issues is required not only by the Practice Direction but also by Pt 13 r 14 of the Land and Environment Court Rules 1996 (the "Court Rules"), which states: Issues, including questions of law, are to be identified with precision at the first call-over before the Court. They cannot later be added to or expanded without leave. 7 The Statement of Issues filed by the council in the present case is as follows: Height 1. The development proposal the subject of the three appeals (jointly refer to as the "Development Proposal" ) is excessive in height and contravenes clause 18(a) of Willoughby Local Environmental Plan 1995 (" WLEP 1995" ) as its [sic] consists of 3 storey buildings in a 2 storey zone. Further, the Development Proposal is inconsistent with clause 4.5 of Development Control Plan No. 16 (" DCP No . 16 "). The excessive height causes the following impacts: (a) Overshadowing of the neighbouring property at no. 70 Sugarloaf Crescent. (b) Reduced visibility of the adjoining bushland and waterway beyond. (c) Impact on streetscape of the visual bulk of the Development Proposal. (2) The Applicant's State Environmental Planning Policy No. 1 Objection in relation to clause 18(a) of WLEP 1995 in each appeal is not well founded. Building height plane 3 The Development Proposal breaches the building height plane control contained in clause 4.4 of DCP No. 16 which results in the following unreasonable impacts: (a) Insufficient privacy between each of the three proposed dwelling for the reasonable enjoyment of the amenity of the rear gardens, recreation facilities and court yards by the future occupants. (b) Overshadowing of the neighbouring property at no. Sugarloaf Crescent. Bulk and Character 4. The Development Proposal is excessive in terms of its bulk, is uncharacteristic of existing development in the locality and inconsistent with the desired future character of the locality, being attached dwellings (in a terrace style) in the area characterised by detached dwellings. Particulars (b) Objective of the zone 2(A2) – Residential "A2" Scenic Protection Zone. (c) Clause 2.2.2 of DCP No. 16, Desired Future Character of Castlecrag. (d) Clause 4.3 of DCP No. 16, Character, Design and Streetscape. Cumulative impact 5. If the Development Proposal is approved and a similar scheme proposed and approved on other similarly configured allotments in Sugarloaf Crescent, and, in particular, on the adjoining allotments known as no. 70 Sugarloaf Crescent, the cumulative impact of the schemes will be to exacerbate the matters raised in issue 4 above. Inter-dependence of the three development applications 6. That a consent authority could not reasonably grant consent to the Development Proposal in the absence of a guarantee that the applicant would acted on the three consents concurrently. 8 The parties agreed that the proceedings be dealt with as an on-site hearing under s 34B of the Court Act. The proceedings were not recorded. They were required to be conducted with as little formality and technicality and with as much expedition as the requirements of the Act and as the proper consideration of the matters before the Court permit: s 38(1) of the Court Act. The rules of evidence did not apply: s 38(2) of the Court Act. 9 The parties had agreed to the appointment of Mr T Byrnes, town planning consultant, as the Court appointed town planning expert: Pt 39 of the Supreme Court Rules 1970 (NSW), which applies in this Court (see now Pt 31, Div 3 of the Uniform Civil Procedure Rules 2005 (NSW)). At the hearing the commissioner viewed the site of the proposed development from within the subject land and from vantage points outside. The commissioner granted leave to the council to call another town planner, Mr S Czeref, to give oral evidence. A number of local residents were also heard. The commissioner then reserved his decision. 10 In his reasons, the commissioner summarised the issues as follows (at par [12] of his decision): The council filed on the Statement of Issues containing six individual issues. These can be conveniently grouped into the following main areas: 1) whether the SEPP 1 objection to the height development standard is well founded, 2) whether the breach of the building height plane requirement is acceptable, 3) whether the proposed development is excessive in bulk, uncharacteristic of development in the area and the desired future character, and 4) whether the proposal will create a precedent. No complaint is made on behalf of the council that the commissioner did not correctly summarise the issues as raised by the parties at the hearing. 11 The commissioner's decision then goes on to consider each of those issues under separate headings, resulting in the orders upholding the appeals and granting consent to each development application. The Council's Submissions 12 Mr B J Preston SC and Ms G Furness, appearing for the council, made the following submissions, as I understand them. 13 None of the grounds of appeal raised were possible to be raised prior to the commissioner's decision being given as the grounds fall into the category that there has been a miscarriage of power by failing to consider the relevant mandatory considerations (distinguishing Page v Parkes Shire Council (1991) 72 LGRA 97). It would be ludicrous to suggest that unless a party in a statement of issues requests the court to act according to law and to consider the matters which it is bound by statute to consider, it is always prevented from grounding an appeal on the basis of a failure of the decision maker to consider the matters which the law required. Submissions regarding grounds (a), (b) and (e) 14 It is asserted that the decision of the commissioner is silent as to whether the commissioner considered the relevant provisions of the applicable environmental planning instruments and DCP No. 16 and failed to give reasons which demonstrate how the conclusion in par [39] of his decision was arrived at: "Overall, I see no conflict with any provision in the LEP or DCP 16 that would warrant the refusal of the application." 15 It is alleged that there has also been a failure to give proper, genuine and realistic consideration to the provisions of DCP No. 16, as: · the commissioner failed to deal with the relevant provisions as raised in the objector's written submissions; · the commissioner paraphrased the language and the terms of the DCP No. 16 such that he could never discharge the obligation to consider them; and · par [39] of the commissioner's decision is based only on the clauses of the DCP No. 16 set out in the decision and cannot be taken to be a statement that the clauses other than those set out have been considered. 16 It is further alleged that the commissioner failed to consider the written submissions of the objector's based on the following: · there is no reference in the commissioner's reasons to the written submissions or to the council's bundle of documents at all; · the commissioner's decision does refer to the oral submissions heard on site; and · if the commissioner had dealt with the written submissions, it is inconceivable that he would not have considered with the relevant provisions of the environmental planning instruments and DCP No. 16 as has occurred. 17 The commissioner, as consent authority, was bound to consider the relevant provisions of any environmental planning instruments and development control plans applicable to the proposed development: sub-ss 79C(1)(a)(i) and (iii) of the Environmental Planning and Assessment Act 1979 (the "EP&A Act"); s 39(4) of the Court Act: see Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1982) 162 CLR 24, at 39-40; Hale v Parramatta City Council (1982) 47 LGRA 319 at 335 per Street CJ and at 338-339, 340, 344, 345 per Moffitt P; North Sydney Council v Ligon 302 Pty Ltd (1995) 87 LGERA 435 at 442-443 per Kirby ACJ, Sheller JA at 449 and Clarke JA at 451 concurring; North Sydney Council v Ligon 302 Pty Ltd [No. 2] (1996) 93 LGERA 23 at 28, 32 per Cole JA, Meagher JA and Abadee AJA concurring; Zhang v Canterbury City Council (2001) 51 NSWLR 589 at 601-603. Consideration of these provisions is a pre-condition to the validity of any determination of the development applications in the appeals. 18 A Statement of Issues, as an administrative aid prepared unilaterally by one of the parties, identifies those focal points or sub-considerations which the council, as one of the parties to the appeal, wishes to focus the Court's attention upon. It does not and cannot in law dispense with the statutory obligation of the Court to consider the mandatory considerations, in this case, the relevant provisions of the planning instruments and the development control plans. It would be wrong for the Court to say that compliance with the Practice Direction in the formulation of a Statement of Issues relieves the Court from its statutory obligations as this would elevate form above substance; that is, it would elevate administrative practice and case management over applying the law and allow the statement of issues to redefine the law to relieve the court from complying with the statutory obligations. Further, a Statement of Issues cannot in law have the effect of legally defining and confining the Court's obligations as the Court has discretion to consider issues beyond the statement: s 39 of the Court Act. 19 The applicant always knew the case it had to meet (for example, through the s 149 Certificate) and the preconditions to obtaining development consent. 20 There was also evidence before the commissioner about the relevant provisions under the applicable environmental planning instruments and DCP No. 16. This evidence included the following: · the provisions were identified in the Statement of Basic Facts (as required by the Practice Direction), the Council Officer's (Mr Ellis) report (Exhibit 2:2, Tab 23) and the statement of evidence of Mr S Czeref. Mr Czeref's statement also appended the judgment of Bignold J in Bowen v Willoughby City Council [2001] NSWLEC 274 which set out the applicable planning provisions at that time (at par [24]); · the WLEP 1995 was tendered and DCP No. 16 was tendered. The Court was otherwise entitled to take judicial notice of the other relevant planning instruments, SEPP No. 19, SEPP No. 56 and SREP No. 23; and · the objectors written submissions which asserted that the proposed development did not comply with SREP No. 23, SEPP No. 19 and or SEPP No. 56 (Exhibit 2:1 and 2:2). 21 The relevant provisions are crucial or critical to the proper determination of the appeal due to the following characteristics: · the de novo nature of the appeal and the obligations of the Court, as consent authority, "standing in the shoes" of the council (s 39(2) of the Court Act), mean that the Court is not bound to determine the proceedings solely by reference to the issues raised by the parties (Shao v Hornsby Shire Council (2001) 116 LGERA 462 at 466) and must have regard to any instrument made under any relevant Act (s 39(4) of the Court Act); and · the legal requirement for Court to consider the relevant environmental planning instruments and development control plans under s 79C(1) of the EP&A Act. 22 Therefore, as the provisions are crucial and they are not referred to by the commissioner, an appellate court may infer that the commissioner overlooked the matters or failed to give consideration to them: North Sydney Council v Ligon 302 at 422; Beale v GIO of New South Wales (1997) 48 NSWLR 430 at 443. Submissions regarding grounds (c) and (d) 23 Clause 13(3) of the WLEP 1995 sets a precondition that the consent authority must form an affirmative opinion that the proposed development is consistent with, inter alia, at least one specific objective of the zone within which the development is proposed to be carried out. This provision is crucial and unless the Court formed the requisite affirmative opinion, the Court was precluded from granting development consent: Clifford v Wyong Shire Council (1996) 89 LGERA 240 and Manly Council v Hortis (2001) 113 LGERA 321. The specific objective in the relevant zone is provided in cl 14C which requires that housing meet stated performance outcomes, including maintaining ecological values. 24 It is asserted that the commissioner's decision fails to refer to the evidence relevant to this issue, fails to make any findings from such evidence and fails to give reasons for any findings. Rather, the commissioner purports to form an opinion of satisfaction as to consistency from the absence of knowledge to the contrary. This is an inadequate and illogical foundation for the opinion: State Rail Authority of New South Wales v Hunter Water Board (1992) 78 LGERA 342 at 346. 25 The Court when conducting such merit review ought to state explicitly in the reasons for judgment each of the matters that the Court, as the appellate body, is bound to consider and the manner in which it has discharged the duty to consider each of those matters. Section 34B(4) of the Court Act specifically provides that where deciding proceedings by means of an on-site hearing, commissioners must provide reasons. 26 The provision of reasons is necessary as "a function of due process" (Flannery v Halifax Estate Agencies Ltd [2000] 1 WLR 377 per Henry LJ at 381-382) to allow a court of appeal to determine whether the decision contains an appealable error, to provide the foundation for the acceptability of the decision by the parties, and to ensure judicial accountability by guarding against the birth of an unconsidered or impulsive decision: Fletcher Construction Australia Ltd v Lines Macfarlane & Marshall Pty Ltd (No. 2) [2002] 6 VR 1 at 31. 27 By failing to refer to these relevant statutory matters, the parties were unable to see whether the commissioner took these matters into consideration and what view he reached and thus left the parties not only disappointed but also disturbed: North Sydney Council v Ligon 302 at 443. In this case, the circumscribed and disjunct manner of the onsite hearing (which excluded public discussion of the objector's written submissions and the relevant provisions of the environmental planning instruments and DCP No. 16) further prevented the parties being able to see justice being done. Thus, the reasons for decision in this case were even more important as they are the only real means by which the public can know or understand the reasons for the decision and the matters that were considered. 28 The commissioner misdirected himself as to the question or questions he had to determine, which is an error of law: Woollahra Municipal Council v TAJJ Investments Pty Ltd (1982) 49 LGRA 123; Richmond River Shire Council v Ramsey (1988) 66 LGRA 210; Roads and Traffic Authority (NSW) v Perry (2001) 116 LGERA 244 at 256 [56]; Zhang at 601. Abuse of Power 29 It is submitted that there can be no abuse of process by bringing of this appeal by the council, notwithstanding that the issues raised in this appeal were not raised in the Statement of Issues before the commissioner, for the following reasons: · the statutory obligation on the commissioner to act in accordance with law cannot be relieved by the conduct of the parties, therefore, the council's conduct cannot be an abuse of power; · it is wrong to infer that an omission to state that the commissioner should have regard to the applicable environmental planning instruments in the Statement of Issues is a declaration to the Court that the commissioner was not required to consider those instruments; · the council and the objectors were entitled to assume that the Court would act in accordance with law and would consider the relevant applicable environmental planning instruments and their written statements, respectively; · it is nonsense to say that the obligation to consider the relevant environmental planning instruments can only be triggered if it is included in the Statement of Issues. The commissioner had knowledge of the applicable instruments and recognised the need to deal with them. 30 I now turn to consider each of the grounds of appeal summarised in par [3] above. Failure to consider SEPP No. 19, SEPP No. 56 and SREP No. 23 31 I accept the submission of Dr G A Flick SC and Mr G B Newport, appearing for the applicant, that the legal and factual issues to be resolved by the commissioner were those identified by the council in its Statement of Issues which it had filed as required by Pt 13 r 14 of the Court Rules. I have set out in par [7] above that Statement of Issues. It makes no mention of any issue arising for consideration under SEPP No. 19, SEPP No. 56 or SREP No. 23. This may be contrasted with the council's conduct in a previous appeal involving the same land as in the present case: Bowen v Willoughby City Council [2001] NSWLEC 274. In that case, unlike the present case, the council's Statement of Issues expressly raised for consideration the question whether that proposed development in that case should be approved having regard to certain provisions in those instruments. 32 In the present case, however, the council expressly limited the issues to those which it specified. I accept the submission of Dr Flick SC and Mr Newport that by expressly raising consideration of those instruments in the previous case and by omitting them from the issues in the present case, then the council's decision to limit the issues in the present case must have been deliberate. Moreover (as appears from the affidavits of Mr J P Doyle and Ms K Brown), the council's counsel, appearing before the commissioner, made no reference at all to those instruments in the course of her submissions. It is apparent that both the council and the appellant were content for the commissioner to determine the proceedings on the Statement of Issues as filed. No application was made under Pt 13 r 14 of the Court Rules for leave to add to or expand those issues. 33 The council now seeks to agitate, as questions of law, questions which were never advanced for resolution and, accordingly, never resolved by the commissioner. 34 In Page v Parkes Shire Council (1991) 72 LGRA 97 Cripps J held (at 103) that a judicial officer cannot be said to make an error of law by not giving reasons with respect to a matter that was not the subject of submissions before him or her. I do not accept the council's submissions, noted in par [13] above, that this case is distinguishable. The Council did not contend, and even now does not contend, that anything in either SEPP No. 19, SEPP No. 56, or SREP No. 23 would operate to require a refusal of the development applications. The council cannot now complain that these instruments were not considered when it did not itself see fit to raise them for consideration. However, if there be an error, it would only vitiate the decision if it materially affects the decision: Hale at 335, Guideline Drafting and Design Pty Ltd v Marrickville City Council (1988) 64 LGRA 205. The council does not suggest that the omission to refer to the instruments is a material error, but is more a matter of formality. In North Sydney Council v Ligon 302, Kirby ACJ warned (at 442) against examining reasons in an overly critical or pernickety way, but this is what the council seems to be doing. 35 In Housing Commission of NSW v Tatmar Pastoral Co Pty Ltd (1983) 3 NSWLR 378 it was held that a judicial officer cannot be said to make an error of law by not giving reasons with respect to a matter which was not the subject of any submission before him or her and in a way which called for reasoned consideration. In that case Mahoney JA said (at 385-386): However, such a duty does not exist in respect of every matter, of fact or of law, which was or might have been raised in the proceeding. It is not the duty of the judge to decide every matter which is raised in argument. … However, the decision of a particular submission may be an essential part of the judge's reasoning to his final conclusion. This may be so because it is necessarily so, ie, because he cannot come to his final conclusion without deciding it; or because the reasoning which in fact he follows makes it so. In such a case, the duty of the judge will vary according to the way in which the case has been conducted and according to the reasoning which he has followed. Ordinarily he may confine his attention to the points which have been taken and the submissions made in relation to them. In my opinion, it is not open to a party on appeal to complain that reasons were not given for the decision of a matter of fact or law which was, or must have been, decided, if the matter was not the subject of submissions made to the court below in a way which called for a reasoned consideration of them. 36 In Randall Pty Ltd v Willoughby City Council [2005] NSWCA 205, Basten JA (Giles and Santow JJA concurring) said (at par [19]): … if the Commissioner was not asked to, and did not, decide the question of law now raised, it is doubtful whether the statutory appeal jurisdiction, under ss 56A and 57 of the Land and Environment Court Act , could properly be invoked. 37 In the light of these authorities I find that the commissioner did not make any error of law in failing to refer to SEPP No. 19, SEPP No. 56 and SREP No. 23. To allow the appeal on this ground could also set at nought the Practice Direction of the Court and Pt 13 r 14 of the Court Rules as to identification of the issues; it would permit the losing party to advance submissions on appeal which were not advanced at first instance, and it would deny finality to litigation. 38 The council argues that s 79C of the EP&A Act nevertheless mandates consideration of the relevant environmental planning instruments. However, in Segal v Waverley Council [2005] NSWCA 310, the Court of Appeal drew a distinction between administrative decision-making at the level of executive or local government, and a dispute-resolver such as a judge or other judicial or quasi-judicial officer (such as a commissioner of the Land and Environment Court), who is called upon to decide issues raised by the parties in adversarial litigation. In that case Tobias JA (Beazley and Basten JJA concurring) said at par [42]: In the Land and Environment Court the litigation is adversarial in nature. The parties are opposed to each other and issues are joined between them. In such cases, "the merits of any particular application depend upon the facts and circumstances of the case and the substantive issues joined between the parties " (at par [95], emphasis added). 39 In Segal it was held that a commissioner of the Land and Environment Court is only "bound to address the principal contested issues that were joined between the parties" (at pars [44], [99]), or "the principal, central or critical issue the subject of the contest between the parties" (at [45], [69], [92]). In so holding the Court of Appeal applied Misfud v Campbell (1991) 21 NSWLR 725, in which it was held (by Samuels JA, with Clarke JA and Hope A-JA concurring) that it was an incident of the judicial duty to give reasons to record the evidence and findings thereon which are critical to an issue in the case. As noted above, however, the council does not even now contend that anything in those instruments would justify a refusal of the development applications. In that event it could not be said that those instruments are critical, neither did they raise any contested issue which called for a reasoned consideration and findings thereon. 40 Finally, it would be contrary to all principles to allow a party after a case has been decided against it to raise a new argument which, whether deliberately or by way of inadvertence, it failed to put at the hearing when it had the opportunity to do so: University of Wollongong v Metwally [No. 2] (1984) 59 ALJR 447, Coulton v Holcombe (1986) 162 CLR 1. Anshun Estoppel 41 I accept the applicant's submission that it is also an abuse of process for the council to now raise issues which were not raised before the commissioner. This is illustrated by the analogous case of Walter Construction Group v Fair Trading Administration Corporation [2005] NSWCA 65. Because of its relevance it is necessary to give some detailed consideration to that case. The owners of a building had lodged claims under the Building Services Corporation Comprehensive Scheme Insurance against the Fair Trading Administration Corporation (the "FTAC"), the administrator of that scheme. The FTAC resisted the claims on the basis that the claims were to indemnify for rectification of defects rather than major structural defects and as such were out of time (3 years). The owners then lodged an appeal to the Commercial Tribunal of New South Wales, by then called the Fair Trading Tribunal and later known as the Consumer, Trading and Tenancy Tribunal. The Tribunal upheld the owner's appeal, holding that the defects were major structural defects, to which a longer time limitation of 7 years applied and that the FTAC was liable to indemnify the owners for losses related to the defects the subject of the claim. 42 The FTAC's appeal to the Supreme Court under s 61 of the Fair Trading Tribunal Act 1961, an appeal limited to a question of law, failed and was dismissed by Burchett AJ. The FTAC then wrote to the owners agreeing to settle to claim for the amount of $852,598 under the Comprehensive Insurance Scheme. 43 Subsequently, the FTAC sent a letter to the owners purporting to revoke its earlier approval of the insurance claim, relying upon a clause, cl 9, which excluded defects due to faulty design. The owners then instituted proceedings against the FTAC seeking relief against the revocation of its approval of the claims. The FTAC's argument that it could revoke its approval of the claims, based as it was on the decision of Burchett AJ, was rejected by Grove J. Grove J held that the failure on the part of the FTAC to rely on the exclusion clause in refusing the claim initially, in its conduct of the appeal to the Consumer, Trading and Tenancy Tribunal, and in its conduct of the appeal to the Supreme Court, precluded its later reliance on the excluded defects. Grove J concluded in favour of the owners on the basis of the doctrine known to as Anshun estoppel: Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589. Importantly for present purposes, Grove J also held that the previous decision was not a nullity by reason of jurisdictional error. 44 The decision of Grove J was affirmed by the Court of Appeal. That Court (Sheller, Santow and Tobias JJA) held that in seeking to avoid the claims in reliance on a clause which it did not previously raise, the FTAC was involved in an abuse of process. In so holding, Santow JA (Sheller and Tobias JJA concurring) described the doctrine known as Anshun estoppel as a species of abuse of process, which precluded agitation by the FTAC of matters which it had failed previously to raise. 45 The FTAC made the following submissions in the Court of Appeal (inter alia): i. there was in law no first decision, there being no jurisdiction on the basis that the defects were within the cl 9 exception; ii. the trial judge had erred in finding that the proceedings before the Tribunal were limited to the sole issue that was expressly raised in these proceedings; and iii. the first decision did not give rise to an Anshun estoppel. The Court of Appeal rejected all of these subjections. 46 As for the first submission, Santow JA (Sheller and Tobias JJA concurring) held that even if it were open to the FTAC to contend that cl 9 operated as an exclusion of the claim, another provision of the act, s 100, authorised it to enter into an arrangement or agreement for the purposes of reducing its liability under the insurance (which it did in agreeing to settle the claim for $852,598). 47 The second and third submissions concerned Anshun estoppel in not raising the faulty design issue and jurisdictional fact argument before the Tribunal (and before Burchett AJ). Again Santow JA (Sheller and Tobias JJA concurring) agreed with Grove J, and in particular the following comments of the Tribunal adopted by Grove J (see par [32] NSWSC; par [100] NSWCA)): It needs to be understood that throughout the pre-trial process, which in this case were lengthy, the Tribunal endeavours to ensure that the parties refine the issues for determination so that the Tribunal can deal with its case load efficiently and expeditiously in accordance with its statutory objectives. This is done in the absence of pleadings. Those issues which are not in issue are taken as admitted. Grove J had also noted (at par [34] NSWSC) that: …bad workmanship or design was outside the express issue that his client had chosen to litigate… 48 Santow JA said (at par [104] NSWCA): It is undoubtedly true that the proceedings agitated before the Tribunal were limited to the limitation questions and matters relevant to that issue. But that is because FTAC chose so to limit the matters advanced by it in the proceedings before the Tribunal when resisting payment. It is precisely that which led the trial judge, correctly in my view, to conclude that Anshun estoppel applied so far as the Tribunal was concerned. It was plainly unreasonable for FTAC to fail to raise the design defect issue before the Tribunal, if it was to be raised subsequently. Moreover, it was plainly unreasonable for FTAC to fail to raise the design defect issue before Burchett AJ in so far as any question of law were concerned. There could hardly be a clearer case of abuse of process by way of Anshun estoppel for that issue to be raised now. 49 It seems to me that this decision, when applied to the present case, means that the council's argument must fail. 50 The FTAC had failed to raise a matter before the Tribunal that would have operated as a complete bar to the owners' claim. Thus, even where the statutory authority was precluded from paying any money to the owners, its failure to raise the relevant preclusion as an issue meant that it could not raise it later on appeal. The relevant issue was outside the express issue that the FTAC had chosen to litigate and its attempt to do so later on appeal amounted to an abuse of process by way of Anshun estoppel. 51 Similarly, the proceedings agitated before the commissioner in the present case were limited to the questions raised by the council in its Statement of Issues. The commissioner dealt with each of those issues. The reference to the planning instruments in the Statement of Basic Facts was simply to show in a formal way that these were the planning instruments which applied to this particular development application but that, having regard to the Statement of Issues, there was nothing in them which needed to be agitated before the commissioner, there was nothing in them of relevance in the appeal and there was nothing in them that would have otherwise justified a refusal of the application. To complain now that the commissioner failed to consider them raises the doctrine of Anshun estoppel and is an abuse of process. 52 Moreover, as noted above, the council does not even now contend that anything in those instruments would operate to preclude the development in the present case. The council's complaint is that the commissioner failed to refer at all to those instruments in his reasons for decision, even if only in a formal way. Again, this is an overly critical or pernickety was of examining reasons, an approach which has been condemned by the Court of Appeal: North Sydney Council v Ligon 302 at 442, per Kirby ACJ, Sheller JA concurring on this point. If there was nothing in the instruments which the council says would require refusal of the applications, then clearly there was no need on the part of the commissioner to refer to them. As in Walter Construction Group v FTAC, this is a clear case of abuse of process by way of Anshun estoppel. Failure to give proper, genuine realistic consideration to relevant provisions of DCP No. 16 53 The council's Statement of Issues identifies a limited number of the provisions of DCP No. 16, namely, cl 4.5 (the height controls), cl 4.4 (building height planes and setbacks), and cll 2.2.2 and 4.3 (character, design and streetscape). 54 The commissioner's decision identifies each of those provisions of the DCP No. 16. It also identifies cl 18 of the WLEP 1995, which states that a person shall not erect a building more than two storeys in height. The commissioner then gives a careful and detailed consideration to an objection to the height control submitted under State Environmental Planning Policy No. 1 – Development Standards. It is apparent that the considerations arising under the Policy and considered by the commissioner overlap those arising under cl 4.5 of the DCP No. 16. The commissioner's decision then goes on to consider in some detail issues arising under cl 4.4 of the DCP No. 16 relating to building height planes and boundary setbacks. Finally, the commissioner's decision, although not specifically referring to cll 2.2.2 and 4.3 sets out his consideration of the bulk, character, design and impact upon the streetscape of the proposal. 55 I accept the council's submission that the commissioner was required to give proper, genuine and realistic consideration to the relevant controls in the DCP No. 16: Weal v Bathurst City Council (2000) 111 LGERA 181; Zhang and Centro Properties Ltd v Hurstville City Council (2004) 135 LGERA 257. I do not, however, accept the submission that he failed to do so. A reading of the commissioner's reasons, which I have noted above, shows that he did. The council further complains that the commissioner did not do so in the terms formulated in DCP No. 16; that is, as I understand the submission, the commissioner did not use the language of DCP No. 16. However, it is not unlawful for a decision-maker to not use the same language as the controlling instrument, provided the substance of the control is considered. No authority was cited in support of the council's contention that it is unlawful for a decision-maker not to use the language of the instrument. 56 I consider under the fourth and fifth ground of appeal the council's submission that the commissioner failed to refer to and deal with the arguments raised by the objectors in their written submissions. Misdirection and Failure to give proper, genuine and realistic consideration to cll 13(3) and 14C of the WLEP 1995 57 The commissioner's reasons accurately describe cll 13(3) and 14C of the WLEP 1995 in the following terms: [6] Clause 13(3) requires that consent shall not be granted unless the proposal is consistent with one or more of the aims of the plan and at least one specific objective of the zone within which the development is to be carried out. … [8] Clause 14C provides a specific objective for the zone. It is: to accommodate housing such that the scenic qualities and ecological values of the environmentally sensitive natural areas, including foreshores and bushland areas are maintained by protecting the land in this zone from over development or visually intrusive development, by minimising the impact of hard surfaces on the ecological characteristics of the locality, including nearby adjoining bushland, and by ensuring that the new development does not dominate the natural scenic qualities of the locality. 58 The commissioner had earlier in his reasons set out the aims and objectives of the plan in cl 2 of the WLEP 1995 (par [5] of the commissioner's decision). 59 After considering issues relating to building height and boundary set backs, bulk and character (including visual impact and impact upon the streetscape and a discussion of the opinions of the two expert witnesses), the commissioner's reasons then contain the following statements: [35] In terms of cl 13(3), I find that the proposal is consistent with at least one of the aims of the plan. With the range of matters covered by the aims, consistency with at least one of these aims is not an onerous task. [36] The specific objective in cl 14C contains a number of individual requirements but taking a practical and commonsense approach, the objective generally seeks to address the scenic and ecological values of the area. For the reasons set out in the preceding paragraphs I have found that the proposal does not impact on the scenic qualities of the area. I did not understand the council to raise any ecological issues with the proposal. Consequently, I find that the proposal is consistent with the specific objective of the zone. [37] In relation to the issue of whether the form of the proposed development adversely affects the character of the area, I also find that the proposal is acceptable. It is an inevitable consequence that there will be an increase in built form and bulk with the replacement of one dwelling with three dwellings. It is also inevitable that the proposal will differ from the building form that exists in the area at present. [38] I do not however accept that the increased bulk and difference in building form is so inappropriate, insensitive or out of character with the residential development in the area that it warrants the refusal of the application. I acknowledge that the proposed layout appropriately responds to the topographical site constraints and the limited available area for development on the lots in a manner that minimises external impacts. 60 I accept the council's submission that cl 13(3) of the WLEP 1995 requires the formation of an affirmative opinion that the proposed development is consistent with at least one specific objective of the zone. In the present case, there is only one specific objective of the zone, being that which is set out in cl 14C. 61 The council complains that the commissioner fails in his reasons to refer to the evidence on this issue and that he did not make any relevant findings of fact; that is, he made no findings of fact as to what are the scenic qualities of the locality, nor as to what are the ecological values of the locality. Thus, it is submitted, the foundation for the formation of the requisite affirmative opinion is absent. 62 The commissioner, however, summarises the opinions of the two expert witnesses as to the nature of the locality and the impact of the proposed development observed from each direction. In this respect, the existing streetscape and the impact of the development therein is given some special attention by the commissioner. He then re-states the test in pars [35] and [36], in particular: "the objective generally seeks to address the scenic and ecological values of the area". The council complains that this statement is not the correct test, which is that those values "are maintained" rather than "addressed". However, the following sentence states the commissioner's findings according to the correct test: "For the reasons I have set out in the preceding paragraphs I have found that the proposal does not impact on the scenic qualities of the area". That is, the commissioner answers the correct question – and words "does not impact on" used by him are, in the context, to the same effect as the words "are maintained" as used in cl 14C. 63 As to the council's complaint that the commissioner did not consider the ecological values at all, the answer is that the council did not raise any ecological issues with the proposal. No such matter is raised in the Statement of Issues; it was not raised in the expert evidence of either the court appointed expert or the council's own expert; nor was it the subject of any submission by counsel for the council. For the same reasons given in relation to the first ground of appeal this complaint must be rejected. 64 Shortly stated, it is apparent that the commissioner has not misdirected himself by answering the wrong question, neither can it be said that he did not give proper, genuine or realistic consideration to the relevant clauses of the WLEP 1995 to the extent that they were in issue. Failure to give reasons, and Failure to consider evidence of the objectors 65 I have considered above the council's complaint that the commissioner failed to give consideration to certain environmental planning instruments in his reasons. I have concluded for reasons set out above, that this does not disclose any error of law. 66 I now turn to the council's complaints that the commissioner failed to consider the evidence of objectors, or alternatively, failed to give reasons for the acceptance or rejection of such evidence. In particular, the council says that there is no reference in the commissioner's reasons to the written submissions of the objectors which draw attention to SEPP No. 19, SEPP No. 56, SREP No. 56 and other matters, amounting to a failure by the commissioner to deal at all with the objector's written submissions. The council submits that the express reference in the commissioner's reasons to the objectors' oral submissions suggests that he gave no consideration to their written submissions. 67 The commissioner's reasons expressly refer to the objections of local residents in pars [13] and [28]: [13] ... The Court also heard from a number of local residents on-site. Their concerns were generally addressed through the issues raised by the council. … [28] The zero setbacks of the central dwelling and the consequent grouping of the dwellings is an issue raised in the many submissions from local residents. The submissions raise concern over the change in character from the predominantly single dwelling character of Sugarloaf Crescent. ... 68 The council was fully aware of the written submissions of the objectors and the substance of those submissions when it formulated its Statement of Issues. It nevertheless chose to confine the issues to those set out in its Statement of Issues which take up some, but not all, of the matters raised by the objectors. Moreover, in the full knowledge of the matters raised by the objectors the council adhered to its Statement of Issues in making its submissions to the commissioner. The commissioner considered those matters raised by the objectors which the council adopted and encapsulated in the issues. 69 The objectors were not parties to the proceedings. They were called as witnesses for the council. None of them had sought to be joined as parties under s 39A of the Court Act. That section enables the joinder of a person as a party to an appeal if the person is able to raise an issue which would not be likely to be sufficiently addressed if the person were not joined. Accordingly, the only parties to the hearing were the applicant and the council. As already noted, the commissioner considered all the issues raised by the parties. That was all that he was required to do. There is no error of law in failing to deal with an issue which none of the parties has raised. Moreover, as Dr Flick submitted, there is no authority cited by the council to support the proposition that the commissioner must resolve an issue which is not raised by the parties. If a witness refers to a mater that is not in issue, that does not mean that the judicial officer must consider and deal with it 70 In Shao v Hornsby Shire Council (2001) 116 LGERA 462, relied upon by the council, Cowdroy J held that a commissioner of the court is not bound to determine the proceedings solely by reference to the issues and that there is no error of law if he or she does so. If, however, the proceedings are to be determined by reference to matters outside the issues, then procedural fairness would require that the parties be put on notice that some additional issue is raised. This is what occurred in Shao, as appears from the following passage in the judgement (at 466): [18] In the proceedings before Commissioner Murrell the Amended Statement of Issues did not address the absence of approval for the use of the premises. However this issue was raised by the council in correspondence prior to the hearing and in the statement of expert evidence of Mr Ron Smith. It was raised again at the outset of the hearing by Mr Woodward as a threshold issue. Accordingly throughout the hearing the applicant was on notice that an important question had been raised, namely whether the application should be treated as a new development or merely a change in use 71 In the present case, however, neither the council nor the commissioner sought to widen the issues. Moreover, as Mr J P Doyle, the applicant's solicitor, said in his affidavit: "If the solicitors acting for the Council or Ms Furness had raised issues other than the issues raised in the Statement of Issues then I would have sought instructions to adduce expert evidence from a suitably qualified expert and instructed Counsel for the Applicant to respond accordingly". 72 The reasons of the commissioner in the present case deal with all of the issues raised by the parties and thus do not demonstrate any error of law. Conclusion and Court Orders 73 The result is that the appeal must fail. It also follows that there should be an order that the council pay the applicant's costs. 74 The Court makes the following orders: 1) The appeal under s 56A of the Land and Environment Court Act 1979 is dismissed. 2) The determination and the orders of Commissioner Brown of 19 January 2005 are confirmed. 3) The respondent (appellant in this appeal), Willoughby City Council, must pay the applicant's costs. 4) The exhibits may be returned. I hereby certify that the preceding 74 paragraphs are a true copy of the reasons for judgment herein of the Honourable Mr Justice D H Lloyd. Associate Dated: 21 September 2005 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.