Reported Decision : 123 LGERA 241 Land and Environment Court of New South Wales CITATION : Angelo Ferella on behalf of the Cavellino Trust v Woollahra Municipal Council [2002] NSWLEC 233 APPLICANT Angelo Ferella on behalf of the Cavellino Trust PARTIES : RESPONDENT Woollahra Municipal Council FILE NUMBER(S) : (1)0203 of 2002 CORAM: Talbot J Appeal :- whether planning instrument interpreted and applied correctly - evidence disallowed KEY ISSUES: Construction and Interpretation :- environmental planning instrument Evidence :- rejection of evidence by alleged expert Land and Environment Court Act 1979 s 56A LEGISLATION CITED: Land and Environment Court Rules 1979 Woollahra Local Environmental Plan No. - cl 2(e), cl 2(l), cl 8(2), cl 8(5), cl 18(1), cl 18(2) Cooper Brooks Wollongong Pty Limited v Federal Commissioner of Taxaxation (1981 - 1981) 147 CLR 297; CASES CITED: Coulton and Others v Holcombe and Others (1986) 162 CLR 1; University of Wollongong v Metwally (1985) 59 ALJR 48 DATES OF HEARING: 09/10/2002 EX TEMPORE JUDGMENT DATE : 10/09/2002 APPLICANT Mr A A Hyam (Barrister) SOLICITORS N/A LEGAL REPRESENTATIVES: RESPONDENT Mr M J Connell SOLICITORS Michell Sillar JUDGMENT: IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES (1)0203 of 2002 Talbot J 9 October 2002 Angelo Ferella on behalf of Cavallino Trust Applicant v Woollahra Municipal Council Respondent Judgment Introduction 1 HIS HONOUR: The proceedings before the Court this morning are an appeal pursuant to s 56A of the Land and Environment Court Act 1979 against the decision of Commissioner Brown handed down on 14 August 2002, following a hearing on 29 and 30 July 2002. 2 The first ground of appeal relates to the way in which the Commissioner is alleged to have misunderstood cl 18(2) of the Woollahra Local Environmental Plan 1995 ("the LEP"). The clause is one of the controls in respect of excavation contained in that planning instrument. It is said, in short, by the applicant that the clause in the LEP must be construed in such a way that in the circumstances, as the facts show, the Commissioner exercising the function of the consent authority had no option except to grant consent. Clause 18(2) of the LEP provides as follows:- (2) The Council may decline to grant such a consent unless it has considered specialist reports, including geotechnical reports, structural engineering reports, hydrology reports and dilapidation reports of properties which may be affected by the proposed excavation. 3 The essential argument, as I understand it, is in regard to the meaning and application of the word "may" where it is first used in the clause. On behalf of the applicant Mr Hyam puts that, given the admitted fact that the relevant reports referred to in the clause were produced, the provision must be applied in a way that requires Woollahra Municipal Council ("the council"), and hence the Court, to grant consent. In other words, it may decline to grant consent if the reports are not made available for consideration. However, if they are made available then the effect of the clause is to place the consent authority in a situation where it has no option but to grant consent. 4 In my opinion, the word "may" is to be given its ordinary meaning. It therefore has the effect of allowing the council to exercise a discretion to refuse consent in the absence of the reports. Clause 18 must be read in its entirety. In particular, regard must be had to the requirements of cl 18(1), which requires the council, and again, hence also the Court, to have regard to the effect the excavation may have on a number of matters. The contention by the applicant could, in my view, lead to an absurd and inconsistent interpretation of cl 18. The consent authority is expected to give serious consideration to the consequences of a proposed excavation. If the mere submissions of the reports alone satisfied the requirement of the clause, the consent authority could not fulfil that task. 5 This could be a case for applying the approach taken by the High Court in Cooper Brookes (Wollongong) Proprietary Limited v The Commissioner of Taxation of the Commonwealth of Australia (1980-1981) 147 CLR 297, in particular at p 320. Consistent with that approach the word "may" could be read as reflecting an instruction to the council that it should decline to grant consent in the absence of the reports referred to. However, in this case it is not necessary for the Court to go that far in order to resolve the present issue. I read cl 18(2) as giving the council an option to grant or not to grant consent if the reports are not available. In a moment, when I deal with the relevance of objectives of the LEP as they apply to excavation, I will come to the effect of cl 8(5) of the LEP. However, I see the stated objectives as providing significant support for the approach I have taken in the construction of cl 18(2). 6 The second ground of appeal raised by the applicant is that the Commissioner erred in disallowing the evidence of the applicant, Mr Ferella, concerning the quantity of fill to be removed from the site. The Commissioner rejected the evidence over objection by counsel for the applicant. 7 One of the issues which Mr Ferella intended to deal with was already the subject of evidence in the Statement of Environmental Effects lodged in support of the development application. An objection was raised that Mr Ferella was not an expert who held the necessary qualifications to deal with a question relating to the area and cubic content of a proposed void. 8 It is common ground that two formal objections were raised. Firstly, as I have already mentioned, Mr Ferella was not an expert. Secondly, even if he was the expert evidence had not been provided in writing as required by the Land and Environment Court Rules 1979 ("the Court Rules"). 9 There is a Curriculum Vitae forming part of a document intituled as an affidavit sworn by Mr Ferella. The expertise of Mr Ferella is not readily apparent from that document. Although it is asserted that he has some experience in regard to the building industry, it does not necessarily point to him having the particular expertise that would enable him to answer the particular questions directed to him in the role of an expert. It is not readily apparent to the Court that the Commissioner erred in rejecting that evidence. The requisite expertise has not been demonstrated. I agree with Mr Connell, who appears on behalf of the respondent, that it was equally open to the Commissioner, even if he was minded to accept Mr Ferella's expert qualifications, to reject the evidence on the basis that it had not been made the subject of an appropriate written statement served in accordance with the Court Rules. 10 Even though the Commissioner expressed some difficulty in determining the extent of the anticipated truck movements and lack of detail in determining the quantity of fill, he said at par 34 that putting that difficulty aside, he nevertheless was not convinced that the excavation is desirable or warranted. Accordingly, it appears from his judgment that the Commissioner did not require specific further detail in respect of that issue in order to reach his conclusion on other grounds. 11 The third ground of appeal is that the Commissioner erred in finding, as he did at par 27 of the judgment, that the deepest point of the excavation would be approximately 6.3 metres below the adjoining property at 62 Wolseley Road ("the adjoining property"). Although there is not absolute clarity in the terms of an agreement reached between the experts, namely Mr Daintry for the applicant and Mr Davies for the respondent, it is nevertheless clear that both of them gave evidence regarding a depth of 6.3 metres below the adjoining property. There was an agreement to some extent although either, or even both of them, may have qualified it. Irrespective of the way in which the evidence is to be construed, the Commissioner's finding is, nevertheless, a finding of fact. There is some evidentiary basis for the finding in respect of the deepest point of the excavation. Accordingly, the Court is not prepared to hold that it was not open to the Commissioner to find as he did in relation to the depth of the excavation referable to the adjoining property. 12 The fourth ground of appeal is that the Commissioner erred in adopting the opinion evidence of Mr Daintry, namely that there are contemporary construction techniques that would adequately perform the tasks described by the applicant without the need for additional excavation. Mr Daintry is an expert witness called by the respondent. He was cross-examined about the issue. No issue was raised about his expertise in respect of this aspect of his evidence. Without any specific matter raised which alleges that the Commissioner erred for a particular reason, it is difficult for the Court to determine this ground for appeal in a way that the applicant expects. In any event, the issue, not having been raised below, cannot be raised for the first time on appeal (see University of Wollongong v Metwally (1985) 59 ALJR 48 and Coulton and Others v Holcombe and Others (1986) 162 CLR 1). 13 The fifth ground of appeal is not pressed. 14 Ground six of the appeal is that the Commissioner erred by holding that the proposed excavation does not minimise any impact on the amenity of the neighbourhood. Consequently, the applicant contends that it is inconsistent with the plan objectives and consent must not be granted. Firstly, it must be observed that cl 8(5) of the LEP precludes the council from granting consent unless the council is of the opinion the carrying out of the development is consistent with such objectives of the plan and of the zone, as they apply to that development. 15 The Commissioner erroneously refers to cl 2(e) of the LEP. It is no more than a clerical error. When one has regard to the specific quotes provided by the Commissioner as to that clause, namely, "minimise any impact on the amenity of the neighbourhood", these words are the exact words used in objective 2(l) of the LEP. It is a specific objective of the LEP to minimise any impact on the amenity of the neighbourhood by the excavation of land. 16 There are other objectives in relation to excavation which are not raised in a relevant way so far as this appeal is concerned. Mr Hyam relies on the expert reports required by cl 18(2) to show that the excavation of the land will be such there will be a minimum of impact on the amenity of the neighbourhood. 17 Not only do I understand the applicant to say that the reports show the opinion formed by the Commissioner was incorrect, it is my understanding of the applicant's case that as a consequence of the provisions of cl 18(2) the issue does not arise under cl 8(5). I have already explained why I reject the applicant's construction of cl 18(2). Even if I did accept the applicant's argument in regard to the effect of cl 18(2), cl 8(5) is nevertheless mandatory. If the council, and in this case the Court, forms the relevant opinion that the carrying out of the development is not consistent with one or other objectives of the plan then it is precluded from granting consent. 18 The fact is that the Commissioner found, after going through the evidence at par 35, that the objective was not satisfied. In other words, it was not consistent with the objective. Although he put it on the basis that it was inconsistent with the plan objective, nevertheless, it was the formation of an opinion that was open to the Commissioner based, as it was, upon the facts before him. It is not for this Court on appeal to interfere with an opinion so formed unless there is some basis that would drive the Court to set it aside. For example, on the basis that the opinion was not reasonably open to the Commissioner. 19 I am satisfied on the reading of the whole of the judgment that although there may be a prospect for a different opinion, this is not a case where no other opinion was open to the Commissioner. It was open for him to decide as he did. Because it clearly was an opinion open to the Commissioner it is not for this Court to interfere with that opinion on appeal. Having formed that opinion, then cl 8(5) forecloses the prospect that consent can be granted. 20 For all of the above reasons I hold that none of the grounds of appeal have been made out. It is appropriate that the appeal be dismissed. The decision of the Commissioner will stand. The exhibits may be returned. 21 No circumstances have been brought to my attention that would persuade the Court to exercise its discretion in regard to costs otherwise than in accordance with the standard practice and principles. Accordingly, the applicant in the proceedings will be ordered to pay the respondent's 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.