Land and Environment Court of New South Wales CITATION : Irving v Goulburn Mulwaree Council [2008] NSWLEC 142 APPLICANT Graham Irving PARTIES : RESPONDENT Goulburn Mulwaree Council FILE NUMBER(S) : 10399 of 2007 CORAM: Lloyd J KEY ISSUES: Appeal :- under s 56A of the Land and Environment Court Act 1979 - development application - subdivision and construction of a retail and commercial building - alleged misdirection in relation to development control plan and s 79C of the Environmental Planning and Assessment Act 1979 - determinative weight - no error of law Environmental Planning and Assessment Act 1979 s 79C LEGISLATION CITED: Goulburn Local Environmental Plan 1990 Goulburn Mulwaree Development Control Plan No. 15 - Marys Mount Road Ai v Council of the City of Newcastle (2003) 126 LGERA 194 Attorney General (NSW) v X (2000) 49 NSWLR 653 BP Australia Ltd v Campbelltown City Council (1994) 83 LGERA 274 Coles v Woollahra Municipal Council (1986) 59 LGRA 133 Design Power Associates Pty Ltd v Willoughby City Council (2005) 148 LGERA 233 Guideline Drafting & Design v Marrickville Municipal Council (1988) 64 LGRA 275 Housing Commission (NSW) v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 CASES CITED: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 Misfud v Campbell (1991) 21 NSWLR 725 Parramatta City Council v Hale (1982) 47 LGRA 319 Segal v Waverley Council (2005) 64 NSWLR 177 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 Stockland Development Pty Ltd v Manly Council (2004) 136 LGERA 254; [2004] NSWLEC 472 Terrace Tower Holdings Pty Ltd v Sutherland Shire Council (2003) 129 LGERA 195 Zhang v Canterbury City Council (2001) 51 NSWLR 589; (2001) 115 LGERA 373 DATES OF HEARING: 17 March 2008 DATE OF JUDGMENT: 17 April 2008 APPLICANT: Mr A M Pickles (barrister) SOLICITORS: Bourke Love Mccartney Young LEGAL REPRESENTATIVES: RESPONDENT: Mr J A Ayling SC SOLICITORS: Susan Hill & Associates Lawyers Pty Ltd JUDGMENT: - 8 - IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Lloyd J Thursday, 17 April 2008 LEC No. 10399 of 2007 IRVING v GOULBURN MULWAREE COUNCIL [2008] NSWLEC 142 JUDGMENT 1 HIS HONOUR: The applicant, Mr Graham Irving, made a development application to Goulburn Mulwaree Council for the subdivision of land at No. 38 Gourock Avenue, Goulburn into two allotments and for the construction of a retail and commercial building with car parking on one lot (lot 2). The other lot (lot 1) accommodates a Seventh Day Adventist Church. The council refused the application. 2 The following four issues were raised in the appeal to this Court against the council's refusal: i) whether the proposal is appropriately located considering the zone objectives and the requirements in Goulburn Mulwaree Development Control Plan No. 15 – Marys Mount Road ("DCP"); ii) whether the proposal provides satisfactory vehicular access; iii) whether the proposal provides a satisfactory streetscape appearance; and iv) whether the proposal creates unsatisfactory amenity impacts in relation to noise, light spill and anti social behaviour. 3 The appeal was heard by Commissioner G T Brown, who dismissed the appeal and refused the application. The commissioner found that the proposal failed the first issue noted above. 4 Mr Irving now appeals against the decision of the commissioner, relying upon the following grounds: Ground 1: The commissioner erred in law by misdirecting himself and asking himself the wrong question in his consideration of the DCP and the proposed development. Ground 2: The commissioner erred in law by misdirecting himself and asking himself the wrong question in respect of the required considerations under s 79C of the Environmental Planning and Assessment Act 1979. Ground 3: The commissioner erred in law by concluding that cl 3 of the Goulburn Local Environmental Plan 1990 ("the LEP") had no application to the development application. The commissioner's decision 5 After describing the proposed development, the commissioner referred to the relevant planning controls – the LEP (noting that the site is within Zone No. 2 – Living Area and noting the relevant principle objectives and the relevant particular objectives of the zone), the DCP (noting that cl 1.3 provides its aims and objectives, cl 1.8 provides for the variation of its standards, cl 7.1 provides requirements for community facilities and cl 7.2 provides requirements for commercial development), the draft Goulburn Mulwaree Local Environmental Plan 2007 (noting that no certificate under s 65 had been issues for its public exhibition) and Goulburn Mulwaree Strategy 2020. 6 The commissioner then set out the four issues, which I have noted in par [2] above, noted the experts who gave evidence and then set out an extensive assessment of the development application against the provisions of the DCP, concluding that the application should be refused on the basis of its significant non-compliance with the provisions of the DCP. For completeness the commissioner then assessed the application against the remaining issues of traffic access, streetscape and amenity impacts, holding that none of those issues would warrant refusal of the application. 7 I now turn to each ground of appeal. Ground 1: misdirection in relation to the DCP 8 Mr A M Pickles, appearing for Mr Irving, submits that the commissioner misdirected himself and asked himself the wrong questions in his consideration of the DCP as it applies to the proposed development. 9 In order to appreciate the submission it is necessary to look at the relevant provisions of both the LEP and the DCP. 10 Clause 8(3) of the LEP states: 8(3) Except as otherwise provided by this plan, the Council shall not grant consent to an application to carry out of development on land to which this plan applies unless the Council is satisfied that the carrying out of the development is consistent with one or more of the objectives of the zone within which the development is proposed to be carried out. 11 The subject land is, as I have noted above, within Zone No. 2 Living Area zone. The relevant zoning table sets out the objectives of the zone as follows: (1) The principal objectives of this zone are: (a) to identify certain lands within the City of Goulburn, suited to use for residential purposes; (b) to facilitate the orderly, economic and immediate availability of an adequate supply of land for residential purposes and associated urban activities consistent with emerging demand and preferences; (c) to facilitate and promote the effective provision of a range of adequate, affordable and suitable housing to cater for varying household needs and community preferences; and …. (2) The particular objectives of this zone are: (a) to encourage effective variety and choice in housing by allowing a diversity of residential allotment sizes, tenure forms, dwelling types and intensity of residential land use in so far as this is practicable and compatible with the physical capability and environmental quality of the land concerned and adequacy of services available to the locality; (b) to provide generally for the retention of low-intensity residential development in existing residential localities characterised by single dwelling development and to allow increased intensity of residential land use in selected localities consistent with the maintenance of reasonable standards of residential amenity and where greatest advantage can be taken of utility services and community facilities; (c) to permit other forms of development and services which are associated with, ancillary to, or supportive of, a living area, if they are compatible with or complementary to the particular amenity, character and requirements of residential localities within the zone, including: (i) educational establishments; (ii) community facilities; (iii) hospitals and health care facilities; (iv) open space and recreation facilities; (v) mixed businesses and local business centres; (vi) utility installations; 12 The proposed development is a "local business centre" as defined in cl 5(1) of the LEP. 13 The relevant aim and objective of the DCP, as identified by the commissioner in par [17] of his decision, is: To provide an indicative plan for the future residential subdivision and development of the area based on the development constraints and infrastructure design. (cl 1.3) 14 Clause 1.8 of the DCP states: 1.8 Variation to standards An applicant may request a variation to this policy provided it can be demonstrated that the objectives of this DCP will still be achieved. Each application shall be considered on the basis of the individual circumstances and merits of the case and in terms of achieving the aims and objectives of this DCP. NOTE: A supporting statement is not required for minor variations or those where the intent is clear from the submitted documentation or plans 15 Part 7 of the DCP sets out requirements for "Other Development"; that is, "Community Facilities" (cl 7.1) and "Commercial" (cl 7.2). Clause 7.1 states that as a matter of practice community facilities should be grouped, which will assist in promoting multi-purpose trips, reducing traffic and improving accessibility. (Community facilities include shops, medical centres, inter alia.) 16 Clause 7.2 of the DCP states: 7.2 Commercial Commercial development may be permitted in the Living Area Zone where it complies with the zone objectives. Commercial centres must comply with the definition of Local Business Centre and the Living Area Zone objectives as detailed in Goulburn Local Environmental Plan 1990 . Two areas have been identified for commercial facilities that reinforce the grouping of community facilities i.e. · North-west corner of Crookwell and Marys Mount Roads. · Corner of Gibson Street extension and Marys Mount Road (vicinity of the monastery). 17 Part 8 of the DCP is headed "Outline Plan". It states "Figure 8 – Outline Plan provides a diagrammatic representation of this situation". Proposed commercial and community facilities are identified in figure 8 at the two separate locations described in cl 7.2. The site of the proposed development is at neither location. 18 Mr Pickles does not contend that the commissioner was unaware of these provisions or that he failed to refer to them. To the contrary, the commissioner identified them as relevant planning controls and adverted to them throughout his decision. 19 The commissioner noted, at par [24], that a development control plan is a matter that is required to be considered under s 79C(1)(a)(iii) of the Act. The commissioner also noted, at par [26], that the weight to be given to it is addressed in Zhang v Canterbury City Council (2001) 51 NSWLR 589; (2001) 115 LGERA 373 at [75]: its provisions are to be considered as a "fundamental element" in, or a "focal point" of, the decision-making process and a provision of a development control plan directly pertinent to the application is entitled to significant weight but is not in itself determinative. 20 The commissioner said, at par [29], that he was satisfied that the proposal is consistent with the relevant objectives of the DCP and accepted evidence that it "preserves the DCP intent of two centres". 21 The commissioner then said, at par [31]: Figure 8 (and the corresponding written description in cl 7.2) provide the only guide to the location of the commercial and community facilities in the Mary's [sic] Mount urban release area. …The proposed site is clearly inconsistent with the location of Site 1. (It seems that site 1 was the nearest identified site in figure 8.) 22 The commissioner said, at par [32]: Using the words in Zhang, Figure 8 should be considered as a fundamental element in, or a focal point to, the decision-making process particularly as LEP 1990 provides no guidance on the location of commercial and community facilities for this area. 23 The commissioner then said, at par [35], that the suggestion by Mr A Witherby (who provided town planning evidence for Mr Irving) that an additional commercial facility could be built in the area, is inconsistent with the need for a proper planned approach for the provision of such facilities: "[s]uch an action could potentially change the fundamental make up of DCP 15." 24 The commissioner said, at par [36], that since the DCP came into force on 23 December 2005 there has been a reasonable expectation that the site (site 1) would be developed for commercial and community facilities; commercial decisions may have been made based upon that expectation; and the council had granted an approval for a post office near site 1, although Australia Post had advised that it will not be established in the foreseeable future, but which supported the contention that commercial decisions have been made based on the planning approach in the DCP. The commissioner then continued: In my view, it would be unreasonable to effectively abandon the strategic approach to the provision of commercial and community uses in DCP 15 in favour of a development application that seeks to take advantage of the flexible planning approach of LEP 1990. 25 The commissioner noted, at par [39], the submission of Mr Pickles (who also appeared for Mr Irving below) that sufficient flexibility is available in the LEP and the DCP to allow the development to be approved notwithstanding figure 8. 26 After stating, at par [42], that he was not satisfied that cl 3 (of the LEP) provides the level of flexibility suggested by Mr Pickles, the commissioner's decision continues with the following paragraphs: [43] I am also not satisfied that the particular provisions of cl 1.8 of DCP 15 provide any additional support for the applicant's case. While there is inherent flexibility in the controls within a development control plan any flexibility is subject to the constraints identified in Stockland [ Stockland Development Pty Ltd v Manly Council (2004) 136 LGERA 254; [2004] NSWLEC 472] and Zhang. As stated previously, I do not accept that flexibility sought by the applicant in the location of the proposed development can be supported taking into account the comments in Stockland and Zhang. [44] In my view, the weight that should be given to DCP 15 is significant. I am not satisfied that the proposal responds to the planning approach adopted by DCP 15 and in essence undermines the orderly provision of commercial and community facilities for the Mary's [sic] Mount release area. I do not accept that the flexibility inherent in LEP 1990 and DCP 15 should be seen as an opportunity to depart from an adopted and fundamental planning strategy for the long term development of the Mary's [sic] Mount release area [45] The proposed development should be refused on the basis of the significant non-compliance with the provisions of DCP 15 in relation to the location of commercial and community facilities indicated in Figure 8. To accept the applicant's arguments would be to give little or no weight to DCP 15. 27 Mr Pickles submits that the commissioner applied the provisions of the DCP in an impermissible way: the decision in Zhang required him to make the whole DCP, rather than figure 8, a "fundamental element" in or a "focal point" of the decision-making process (Zhang at [75]). Moreover, Mr Pickles submits that the particular provision of the DCP which was the subject of consideration in Zhang was a prohibition, whereas figure 8 in the present case is said to be "an indication of what the area might look like into the future". Mr Pickles thus submits that the commissioner erred in his interpretation of the DCP in that he felt that he was bound to apply figure 8 to the exclusion of other provisions of the DCP, and, in particular, cl 1.8. 28 Mr J A Ayling SC, appearing for the council, submits that the commissioner asked himself the correct questions in his consideration of the DCP as it applies to the proposed development. Mr Ayling submits that the commissioner gave proper consideration to cl 1.8 of the DCP at pars [41] [43] of the decision. He also argues that there is nothing directly pertinent about cl 1.3 of the DCP as it is pertinent in the relevant respect to every application. Mr Ayling relies on the second sentence of par [75] in Zhang, which is as follows: A provision so directly pertinent to the application for consent before the council…was entitled to significant weight in the decision making process but was not, of course, determinative. 29 According to Mr Ayling's submission, since clauses 7.1 and 7.2 of the DCP and figure 8 were directly pertinent to the issue of location, the commissioner was entitled to give them significant weight although not in itself determinative. The commissioner was, therefore, entitled to conclude (at par [44] of his decision) that the weight to be given to the whole DCP is significant. Mr Ayling argues that the DCP demonstrates a planning approach in relation to the provision of commercial and community facilities for the area covered by the DCP. Although there is flexibility in the DCP, cll 7.1, 7.2 and figure 8 demonstrate a fundamental planning strategy related to the long term development of the area and therefore, significant weight is attached to these provisions. The commissioner's finding of non-compliance with these provisions was sufficient to warrant refusal of the application. 30 I agree with the council's submissions. Section 79C(1) of the Act requires the consent authority, in determining a development application, to take into consideration a number of matters as are of relevance to the development the subject of the development application. A relevant consideration is any development control plan. 31 In Zhang, cl 4.0 of DCP 23 in that case listed standards concerning the access and location requirements of brothels, specifying minimum distances from residentially zoned land, any place of public worship, school, community facility, child care centre etc. Spigelman CJ (Meagher and Beazley JJA concurring) said (at [75]): The consent authority has a wide ranging discretion — one of the matters required to be taken into account is 'the public interest' — but the discretion is not at large and is not unfettered. DCP 23 had to be considered as a "fundamental element" in or a "focal point" of the decision making process. A provision so directly pertinent to the application for consent before the Council as was cl 4.0 of DCP 23 was entitled to significant weight in the decision making process but was not, of course, determinative. 32 I am unable to find any error on the commissioner's part. As the commissioner said in par [44] of his decision, the proposal "undermines the orderly provision of commercial and community facilities for the Mary's [sic] Mount release area". Moreover, the commissioner recognised the flexibility inherent in the LEP and in the DCP but did not accept that flexibility as an opportunity to depart from "an adopted and fundamental planning strategy" for the long-term development of the area. In other words, the commissioner found that figure 8 was directly pertinent to the application for consent in the same way that cl 4.0 of DCP 23 in Zhang was found to be directly pertinent to the application for consent in that case. It was clearly open to the commissioner to so find in view of the statement in cl 7.2 of the DCP that "two areas have been identified for community facilities that reinforce the grouping of community facilities …". The fact that the commissioner gave determinative weight to a particular provision does not involve a question of law: Coles v Woollahra Municipal Council (1986) 59 LGRA 133 at 146; Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 41; BP Australia Ltd v Campbelltown City Council (1994) 83 LGERA 274 at 278; Attorney General (NSW) v X (2000) 49 NSWLR 653 at 666; Terrace Tower Holdings Pty Ltd v Sutherland Shire Council (2003) 129 LGERA 195 at [57]. It follows that this ground of appeal is not established. Ground 2: Misdirection in relation to s 79C of the Act 33 Mr Pickles submits that the commissioner misdirected himself and asked himself the wrong questions in his consideration of the required considerations under s 79C of the Act. The errors are said to be evident in pars [44] and [45] of the commissioner's decision, which I have set out in par [26] above. Mr Pickles says that the commissioner substituted an assessment of the development against the DCP only, rather than an assessment of the merits of the proposal, which ought to have been part of the consideration and application of the DCP. In another way, as I understand the submission, the merits of the proposal were not considered against the provisions of the DCP. 34 Mr Ayling submits that Mr Pickles draws an artificial distinction between the separate consideration of the DCP and the merit issues. In particular, he reasons that the question of the location of the development and its general compliance with the provisions of a planning instrument which sought to give order and direction in relation to locational issues, is a merit issue. The commissioner was therefore entitled to take the approach that he did. 35 Mr Pickles relies upon the judgment of Pain J in Ai v Newcastle City Council (2003) 126 LGERA 194. That was an appeal against the decision of a commissioner who had refused a development application for a brothel for the reason that it did not meet the locational requirements of a development control plan. In doing so, the commissioner did not consider the other factors which were to be considered under s 79C of the Act. Her Honour held that the commissioner erred in taking that approach. Her Honour held, at [62], that while the commissioner was entitled to regard the locational standard in the DCP as a fundamental element in the decision-making process, it was not determinative and did not automatically lead to refusal of the consent and the commissioner was required to take into account other relevant considerations under s 79C of the Act. Her Honour held that whilst Zhang makes clear that a development control plan should be a "fundamental element" or "focal point" in the decision-making process, it should not be the only basis for decision in circumstances where other factors under s 79C are objectively relevant. 36 Ai was decided, however, before the Court of Appeal decided Segal v Waverley Council (2005) 64 NSWLR 177. In Segal, Tobias JA (Beazley and Basten JJA concurring), after considering a number of authorities, held, at par [93] that it is not necessary for a judicial officer to consider every argument advanced by a party in support of the principal issues: A judge's duty to give reasons is, in my opinion, confined to the essential ground or grounds upon which the decision rests ( Soulemezis [ Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247]) and does not include a requirement to deal with a submission or argument that is otherwise unnecessary to the decision arrived at provided that, in respect of that decision, the judge's reasoning process is articulated and relevant findings made ( Housing Commission (NSW) v Tatmar [ Housing Commission (NSW) v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378]). 37 In Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 , it was held that the law does not require a judicial officer to make an express finding in respect of every fact leading to, or relevant to, his final conclusion of fact. In Misfud v Campbell (1991) 21 NSWLR 725, it was held, at 728, by Samuels JA (Clarke JA and Hope AJA concurring) that it was only necessary as part of the judicial duty to give reasons and record the evidence and findings thereon which are critical to an issue in the case. 38 If there be an error, it would only vitiate the decision if it materially affects the decision: Parramatta City Council v Hale (1982) 47 LGRA 319 at 335, Guideline Drafting & Design v Marrickville Municipal Council (1988) 64 LGRA 275, Design Power Associates Pty Ltd v Willoughby City Council (2005) 148 LGERA 233 at [34]. In the present case the failure of the proposal to comply with the adopted and fundamental planning strategy in the DCP was determinative. In my opinion, in these circumstances the commissioner was not required to consider any other matters. 39 In any event, for completeness the commissioner went on to consider the other issues raised in the proceedings, namely, the merit considerations raised by the parties under s 79C of the Act. In considering these issues the commissioner indicated that he would decide them in the applicant's favour. These findings confirm the fact that the commissioner had decided to give determinative weight to the planning strategy in the DCP. It follows that this ground of appeal fails. Ground 3: Incorrect application of cl 3 of the LEP 40 Clause 3 of the LEP sets out the aims and objectives of the plan. The commissioner noted, at par [39], the relevant aim in cl 3(1)(c): to simplify land use and environmental management criteria to provide adaptability and flexibility responsive to the evolutionary circumstances of growth and change; 41 Clause 3(3) states that the particular strategies and policies to achieve the aims and objectives of the plan are set out in Sch 1. Part B of Sch 1 is headed "In relation to Planning Administration", and relevantly states: (i) to create a pattern of distinct land use and activity areas by dividing the City of Goulburn into zones and to achieve in respect of land within each of these zones the aims, objectives and policies specified in this plan to apply to each zone; (ii) to minimise the need for amendment by providing: (a) flexibility to accommodate any development proposal on merit in accordance with the circumstances of the case; (b) adaptability to meet changing needs of the city; and (c) adaptability to ensure development may occur in a manner consistent with needs arising from change. (iii) to allow opportunity for public involvement and participation in the environmental planning and development process by advertising and exhibiting planning and development proposals identified as having a potential to impact significantly on the environment or on any individual or general public interest; (iv) to require acquisition by a public authority of land reserved by this plan exclusively for a public purpose; (v) to provide for clarity and consistency of interpretation by defining certain terms and activities used in this plan; (vi) to establish minimal performance-related land use management parameters in relation to each zone or to a type or class of development; and (vii) to remove absolute prohibitions on development in most zones, with all development applications being determined on merit. 42 The commissioner noted, at par [40], that Pt B of Sch 1 relates to planning administration and set out the relevant strategy and policies. 43 Mr Pickles submits that these provisions in simple terms provide for the LEP to be applied so as to enable development applications to be determined on their merits. 44 Mr Pickles submits that the commissioner erred in law by concluding that cl 3 of the LEP did not apply to the development application. The error is said to be evidenced in par [42] of the commissioner's decision: I am not satisfied that cl 3 provides the level of flexibility suggested by Mr Pickles. Clause 3 provides aims for the plan (or LEP 1990) and not how a development application should be considered. LEP 1990 clearly addresses the aim in cl 3(1)(c) by simplifying the different zones and allowing a wide range of uses within the zones. The aim of flexibility is repeated in Part B of Schedule 1 but again refers to the plan rather than a development application. The reference to the aim "to minimise the need for amendment" in Part B (ii) of Schedule 1 must be a reference to minimising need for amendment to the plan rather than providing added flexibility in the consideration of a development application. 45 I am unable to agree with the submission. Clause 3(1)(c) refers to land use and environmental management criteria. That is, it is referring to the criteria within the LEP and to the strategy underlying the presentation and form of the LEP. It is not a reference to how an individual development application should be considered. Similarly, Pt B of Sch 1 is directed to planning administration (as the heading says). In particular, item (ii) under that heading refers to minimising the need for amendment of the zones, and item (vii) refers to the removal of absolute prohibitions on development in most zones. None of these provisions are directed to the consideration of development applications. The commissioner's statement of the effect of these provisions in par [42] of his decision is correct. The commissioner has not misconstrued the LEP. Conclusion and orders 46 The commissioner's decision does not disclose any error of law. It follows that the appeal must be dismissed with costs. The formal orders are: (1) The appeal is dismissed. (2) The applicant must pay the respondent's costs of the appeal. I hereby certify that the preceding 46 paragraphs are a true copy of the reasons for judgment herein of the Honourable Mr Justice D H Lloyd. Associate Dated: 17 April 2008 ********** 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.