Land and Environment Court of New South Wales CITATION : AUSTRALIAN NATIVE LANDSCAPES PTY LIMITED v BAULKHAM HILLS SHIRE COUNCIL [1998] NSWLEC 31 (4 March 1998) [1998] NSWLEC 18 PARTIES : AUSTRALIAN NATIVE LANDSCAPES PTY LIMITED v BAULKHAM HILLS SHIRE COUNCIL [1998] NSWLEC 31 (4 March 1998) FILE NUMBER(S) : 10241 of 1997 CORAM: Sheahan J KEY ISSUES: :- s 56A Appeal against Assessor's dismissal of a development appeal - error of law - whether applicant was denied procedural fairness Environmental Planning & Assessment Act 1979 LEGISLATION CITED: Land & Environment Court Act 1979 Baulkham Hills Shire Council Local Environment Plan 1991 Sydney Regional Environmental Plan No.20 - Hawkesbury- Nepean River Coles v Woollahra Municipal Council (1986) 59 LGRA 133; Brimbella Pty Ltd v Mosman Municipal Council 79 LGERA 368; Botany City Council v Remath Investments No.6 Pty Ltd (10974 of 1995, Talbot J, p.7, 12 August 1996); Randwick Municipal Council v Manousaki(1988) 66 LGRA 330; CASES CITED: Housing Commission of NSW v Tatmar Pastoral Co Pty Ltd (1983) 3 NSWLR 378; North Sydney Council v Ligon 302 Pty Ltd (1996) 93 LGERA 23 ; Housing Commission of NSW v Tatmar Pastoral Co Pty Ltd (1983) 3 NSWLR 378; Mahon v Air New Zealand [1984] 1 AC 808; Jarasius v Forestry Commission of NSW (1988) 71 LGRA 79 DATES OF HEARING: 4 and 5 December 1997 DATE OF JUDGMENT: 03/04/1998 Mr T S Hale Barrister LEGAL REPRESENTATIVES: Mr C McEwen Barrister JUDGMENT: Introduction This is an appeal pursuant to s 56A of the Land & Environment Court Act 1979 ("LECA") against a decision of Assessor Hussey whose reserved judgment was delivered on 29 August 1997. Assessor Hussey dismissed an appeal brought by Australian Native Landscapes Pty Limited ("the applicant") under s 97 of the Environmental Planning and Assessment Act 1979 ("EPAA") against Baulkham Hills Shire Council's ("the Council") refusal of a development application for a landscape supply establishment and retail plant sales business at 626 Old Northern Road Dural ("the subject site"). The Council had refused the application on the following grounds: "1. The proposed development is out of character with the surrounding development, principally the adjoining school. 2. The proposed development will increase traffic in the area and has the potential to decrease pedestrian safety, particularly around the adjoining school. 3. The proposed development will impact on the amenity of the area by way of increased noise, dust and wind borne particles. 4. The proposed development will impact on the health of the students at the adjoining school by way of air borne particles, dust and other materials associated with the development. 5. The proposed development is contrary to the public interest based on the high level of submissions received opposing the development." The learned Assessor in his judgment came to the conclusion that the proposal represented an overdevelopment of the site in terms of its rural residential zoning and character and that a less intensive development would solve some, if not all, of the complaints about it. He said at p 23 of his judgment: "Nevertheless a more modest landscaping supply establishment could be suitable on this lot if it observed greater setbacks, provided an effective landscape screening for the commercial components of the development, including the car park and also fully integrated the security fencing and gates for the property and was of a scale which was compatible with the rural/residential character of the area. It would also seem realistic to establish the status of the proposed road widening to assess the adequacy and permanency of the landscaping. Insofar as the other amenity issues of airborne disease, dust, noise emissions were concerned, the specialist evidence confirmed that these matters could be reasonably covered by the presentation of suitable standard operating procedures with defined performance standards which could be incorporated into any conditions of consent". The principal planning instrument is Baulkham Hills Shire Council Local Environment Plan 1991, referred to hereunder as "LEP 1991" ( Exhibit 2 ). Background The subject site is located on the western side of Old Northern Road, Dural, near both the Dural "village" and the intersection of Old Northern Road and Galston Road. Old Northern Road is the boundary between the Shires of Hornsby and Baulkham Hills and is classified as a State road under the control of the Roads & Traffic Authority. The property is described as lot 2 in Deposited Plan 541329, has a frontage of approximately 135 metres to that road, and comprises a total area of 2.023 hectares. There is a right of way 5.03 metres wide along the northern boundary and an easement for transmission line along the western boundary. The area of the subject site adjacent to Old Northern Road is generally flat and contains the shell of a partly completed brick and concrete building that was apparently commenced pursuant to an approval, dating back to 1983-84. Adjoining to the south is Dural Primary School which was established around 1868 and currently accommodates approximately 320 students. To the north is "Hargraves Nursery" and other rural residential properties incorporating some orcharding activities. The property was originally contained within a rural zone pursuant to the County of Cumberland Scheme as gazetted on 27 June 1951. It was subsequently transferred to a non-urban 1(b) zone pursuant to the Baulkham Hills Planning Scheme Ordinance which commenced on 17 June 1964. The Council issued a building permit in July 1973 for the erection of a packing shed on the site, but consistently opposed the use of the property, and in particular that shed, for the retailing of fruit and vegetables, until on 13 March 1981, Local Environmental Plan No.9 ("LEP 9") was gazetted, permitting a shop not exceeding 70m2 on a small irregular shaped part of the south-eastern corner of the subject site. A development application for a shop of 750m2, with a residence above it, was lodged with the Council in 1982. It was referred to the Department of Environment & Planning for concurrence pursuant to State Environmental Planning Policy No.1, and development consent was granted in March 1983, subject to the maximum floor area of the shop not exceeding 100m2. In May 1984 the Council approved an amended set of building plans for a shop with a floor area of 100m2 and a basement store area, private garage and first floor residence. It appears that the partly built structure on the subject site, referred to above, relates to this approval. In 1986 and 1987 the Council received rezoning applications requesting the expansion of retail floor space allowed on the site from 100 to 400m2. On both occasions the Council deferred action upon the rezoning applications pending consultations with Hornsby Shire Council in regard to the establishment of an appropriate planning framework to apply along the Dural section of Old Northern Road. In October 1989 the owner of "Hargraves Nursery" submitted a development application for the subject site to be used as a plant nursery, storage and sale of landscape supplies and building area for a general shop of 70m2. In November 1989 the Council approved the application, with a supplementary recommendation that a further report be prepared on planning for future development along Old Northern Road between Dural Public School and Galston Road. This recommendation was extended in December 1989 by a resolution to approach the Department of Planning and Hornsby Shire Council with a view to undertaking a co-ordinated land use and traffic study of the area. Various studies and a comprehensive development control plan resulted from these decisions. In March 1994 Council received an application submitted on behalf of Hargraves Nursery Pty Limited for a rezoning to permit the sale of rural type products on the subject site. Council responded in July 1994 that a study conducted in conjunction with Hornsby Shire Council in 1991 had concluded that any expansion of commercial activity should occur at Round Corner, not Dural, and that the proposed uses were incompatible with Council's strategic aims for the locality. Australian Native Landscapes Pty Limited acquired the subject site from "Hargraves Nursery" in 1995, intending to commence operations on the site on the basis that the Council's 1989 consent for a plant nursery remained valid. In April 1996 this issue was resolved when Stein J declared the development consent 89/760 void, primarily, it appears, because cl 14 of LEP 1991 prohibited plant nurseries where they required access from Old Northern Road. Subsequently the Council initiated an amendment to cl 14 of LEP 1991 to remove the prohibition of various land uses (such as retail plant nurseries) from major roads subject to certain criteria being achieved. This amendment (No.47) was gazetted on 31 May 1996. Discussions continued between the applicant, its consultants and Council and Development Application 96/259 was lodged on 26 July 1996. Council undertook extensive community consultation between August and November 1996, and conducted meetings with relevant public authorities between November 1996 and January 1997. A total of 62 submissions were received, all objecting to the proposed development, a majority of them from parents of children attending the adjoining Dural School. Submissions were also received from various public authorities which either raised concerns, or objected to the proposal. Council's Town Planning Co-ordinator prepared a detailed report on the application and recommended its approval subject to conditions. This report was considered at a meeting of the Council on 25 February 1997 and the application was refused on the five grounds outlined above (see p.2). This Appeal The function of the Court in dealing with this appeal is not to consider the merits of the proposal against the background of the history outlined above, but to ascertain, on a proper analysis of the decision of the learned Assessor, whether or not he has fallen into any error of law . In this analysis I have had the opportunity to study the transcript of the hearing before the Assessor, and many (if not all) of the exhibits that were before him. The grounds of appeal against the learned Assessor's decision, as filed in the Court on 26 September 1997, assert the following errors on his part: "1. The Assessor erred in holding that the objectives (and aims) of Baulkham Hills Shire Council Local Environmental Plan 1991 ('LEP') for the Rural 1(c) zone required that ' development should be compatible with the surrounding rural residential character '. 2. The Assessor erred in construing Sydney Regional Environmental Plan No.20 - Hawkesbury-Nepean River: (a) as having scenic quality or visual amenity objectives in respect of the subject site; (b) as requiring development on the subject site to be in sympathy with the amenity of its setting. 3. The Assessor erred: (a) in erroneously considering the following to be planning controls controlling development on the subject site; (i) a planning study undertaken by Baulkham Hills Council and Hornsby Council known as the Hirst Report (1991); (ii) the 'Dural Village Centre Development Control Plan' Study; (iii) the Hornsby Council Dural Village Centre Development Control Plan; (iv) the Dural Village Centre Planning Report which the Respondent resolved on 23 March 1993 to exhibit but which was never adopted by the Respondent. (b) in taking into consideration the documents referred to in (a), all of which were irrelevant for the purpose of s.90(1) of the Environmental Planning and Assessment Act ('Act'); (c) in circumstances in which it was submitted by the Applicant that the documents referred to in paragraph 3(a) were irrelevant for the purposes of s.90(1) of the Act, failing to give reasons or sufficient reasons as to the basis for taking the documents into consideration and how the documents could be used and the weight to be given to them. 4. In circumstances in which: (a) the adequacy and form of landscaping was not identified as an issue in proceedings; (b) landscaping was not the subject of the development application and did not require development consent; (c) the issue of landscaping could only have relevance on the extent to which provision should be made for it in the conditions of consent; (d) the respondent in its draft conditions of consent did not propose any conditions concerning landscaping; (e) neither the respondent nor the Applicant had filed and served expert reports on landscaping issues; The Applicant was denied procedural fairness by reason of: (f) the court raising and permitting the Respondent to raise landscaping as an issue; (g) to the extent that landscaping was relevant to the conditions of consent, by reason of the Court and/or the Respondent failing to identify during the hearing the form of landscaping that should be imposed as a condition of consent so as to give the Applicant an opportunity to demonstrate that it could comply with such a condition or alternatively give the Applicant the opportunity to propose a condition which met the Court and/or the Respondent's concerns; (h) refusing development consent primarily on the ground of the landscaping; 5. The Assessor erred in that, in the circumstances of the proceedings and the development application, to refuse the development application primarily on the ground of the adequacy and form of the suggested landscaping rather than imposing a landscaping condition or a performance condition pursuant to s.91(3B): (a) was manifestly unreasonable and/or not logically rational; and/or (b) must have been a failure properly discharge his function according to law(sic). 6. The Assessor: (a) misunderstood the development application; (b) failed to properly assess the development application pursuant to or according to law. 7. The Assessor failed to give adequate reasons so as to identify: (a) the basis of the findings of fact fundamental to his decision; (b) the reasoning upon which he relied in reaching his decision. 8. The Assessor erred in taking into account and giving weight to 'concerns' raised by objectors, as distinct from facts and expert evidence." Counsel for the Appellant/Applicant, in an effort to assist the Court, summarised the reasoning of the Assessor as follows: "1. The visual objectives of the relevant planning controls are: (a) under the LEP, that development should be compatible with rural residential character of the area; (b) under the REP, that development be carried out in sympathy with the amenity of its setting. 2. The proposed development fails to comply with these objectives because: (a) it presents as a commercial development; (b) due to insufficient screening the development will be seen, (c) a commercial development is: (i) not compatible with the rural residential character of the area, and (ii) not in sympathy with the amenity of the setting. 3. Due to this failure to satisfy these objectives the development application should be refused. 4. Thus, his refusal turned on: (a) his construction of the planning controls and their objectives; (b) his conclusion that the appearance of a commercial development is inconsistent with these objectives; (c) the failure to adequately screen the commercial nature of the development." Ground 1 - LEP 1991 and "compatibility" At the relevant time the subject land was zoned rural 1(c) under LEP 1991 and the objectives of the zone included: "(b) to provide for a range of activities which are compatible with the rural residential character of the area". The applicant submits that as one of the principal reasons the Assessor refused consent was because the development did "not demonstrate reasonable satisfaction with … the LEP aims to allow developments which are compatible with the rural residential character of the area" he made an error in equating "activities" with "developments". The applicant draws attention to the fact that the rural 1(d) zone has an objective requiring development to be compatible so evincing an intention that the plan should itself distinguish between "activity" and "development". The Court's attention was drawn to a common presumption in interpretation that words are assumed to be used consistently. It is submitted that if the draftsman had intended that the test in assessing an application under rural 1(c) should be "development", it would have said so specifically, "activity" having much more affiliation with the word "use" than the word "development". The Council submits that the Assessor was correct in his opinion that a consideration of the aims and objectives of LEP 1991 as a whole requires a proponent to demonstrate compatibility with the rural/residential character of the 1(c) zone. Council contends that the words "development" and "activities" are used interchangeably in the LEP and no special significance attaches to either word. Furthermore, Council submits that the Assessor correctly dealt with the matter on the basis that the proposed land use, namely landscape supply establishment, was permissible in the zone, with his task being to examine the particulars and the details of the proposal. The Assessor found that the development presented "at a scale and character which is distinctly commercial" and, as such, does not achieve "a reasonable level of compatibility with the surrounding rural or residential activities". (See generally his judgment pp.18-23, especially p19). The reasoning of the Assessor should not be examined or tested by comparison with what might be written by professional lawyers, although failure to give reasons will constitute an error of law where the decision is an essential part of reasoning towards the final conclusion. Coles v Woollahra Municipal Council (1986) 59 LGRA 133 , Brimbella Pty Ltd v Mosman Municipal Council 79 LGERA 368 , Botany City Council v Remath Investments No.6 Pty Ltd (10974 of 1995, Talbot J, p.7, 12 August 1996). In any case, I believe that it was open to the Assessor to make these findings. I agree with the submissions put by the Council that the use of the word 'activities' has no special significance and does not preclude 'development' from having to be compatible with the rural/residential character of the area. Accordingly I can find no error of law in respect of this ground of appeal. Ground 2 - the Sydney REP and the River Sydney Regional Environmental Plan No.20 ("SREP 20") applies to 11 Local Government areas through which the Hawkesbury-Nepean River flows, and is primarily concerned with potential environmental impacts associated with the river and its immediate environs. The applicant submits that, as the subject site is "nowhere near" the Hawkesbury River or the river valley, clause 1(h) of Schedule 1 which sets out an aim "to protect and enhance the scenic quality of the river and the river valley" has no application or relevance to the subject site. Hence, the applicant contends that the Learned Assessor erred in applying clause 10 of Schedule 1 to the site, as the specific aims of that clause relate back to the general aims in clause 1(h). Clause 10 provides: "The specific aims of this plan relating to scenic quality are - (a) to require new development to be carried out in sympathy with the scenic amenity of its setting, particularly in relation to siting, setback, orientation, size, bulk, scale, scenery and the use of unobtrusive, non-reflective materials; (b) to retain existing vegetation especially along river banks, slopes visible from the river and its banks, and along the skyline; (c) to encourage new planting of trees, particularly local native trees; and (d) to encourage public works to be carried out in sympathy with scenic amenity and with minimum impact". Clause 3 of SREP 20 identifies land within the local government area of the Shire of Baulkham Hills as land to which that SREP applies. Hence SREP 20 applies to the subject site, regardless of its proximity to the river or river valley, or otherwise, and the Assessor was therefore entitled to have regard to the aims expressed in clause 10 of Schedule 1. The amount of weight the Assessor attached to this consideration is a question of fact which cannot be the subject of challenge. Randwick Municipal Council v Manousaki (1988) 66 LGRA 330. In any event, the Assessor was obliged to consider the visual impact of the proposed development by reason of the provisions of LEP 1991 and s90(1)(c) EPAA, even without observing the provisions of SREP 20. I can find no error of law in respect of this ground of appeal. Ground 3 - Planning Studies and Development Control Plans In his judgment (at pages 6 and 7) the Assessor deals with four nominated planning studies and, as the applicant points out, it is clear from the later parts of his judgment that they significantly influenced his decision. The applicant submits that these were not documents to which consideration was required to be given pursuant to s 90, nor did they amount to policy of the Council, so as to give them some relevance. The applicant further submits that as the Assessor failed to give "reasons" as to the basis upon which he took the documents into account, he has erred in law. Housing Commission of NSW v Tatmar Pastoral Co Pty Ltd (1983) 3 NSWLR 378. The Council submits that the Assessor was entitled to have regard to these documents, pursuant to EPAA s 90(1)(q) and LECA s 38(2), and it is clear from reading his judgment that he regarded them as relevant on the question of the likely scenic outcome. The relevant sections are set out below: EPAA s 90(1)(q): "(1) In determining a development application, a consent authority shall take into consideration such of the following matters as are of relevance to the development the subject of that development application: … (q) the circumstances of the case". LECA s 38(2): "(2) In proceedings in Class 1, 2 or 3 of the Court's jurisdiction, the Court is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate and as the proper consideration of the matters before the Court permits." I accept the Council's submissions on this point. Indeed, the Court of Appeal decision in North Sydney Council v Ligon 302 Pty Ltd (1996) 93 LGERA 23 infers that without considering such relevant documents the Assessor would not have given "proper, genuine and realistic consideration" to the application (see Cole JA at 28). In the end, the Assessor came to the conclusion that the proposed landscape treatment was "quite out of character with the existing development in this rural/residential section". (See his judgment at pp20-21). In terms of the detail to which an Assessor is expected to go in his judgment, Counsel for the Council correctly submits that there is a difference between exposing one's reasoning and expounding reasons in such a way that they can be closely analysed on appeal. Housing Commission of NSW v Tatmar Pastoral Co Pty Ltd (1983) 3 NSWLR 378. In Tatmar , Hutley JA at 381 said: "the extent to which a court must go in giving reasons is incapable of precise definition. A court must not nullify rights of appeal by giving no or nominal reasons, but there is no duty to expound reasons so as to facilitate appeals. This applies particularly to the situation where a judge has to decide between conflicting witnesses, including experts. The choice between conflicting experts may have to be a matter of judgment, not of detailed reasoning". I can find no error of law in the Assessor's consideration of the relevant studies. Grounds 4-7 - Landscaping as an issue The basic submission made by the applicant in respect of these four grounds, which were argued together, is that the Assessor conducted the hearing in such a way that the applicant was never given an opportunity to know, or respond to, the Assessor's concerns in respect of landscaping or its adequacy. The applicant contends that these issues were not identified in the Council's statement of issues, nor in the draft conditions it served on the applicant. On the other hand, the Council submits that landscaping or its adequacy was encompassed within issues 1, 3 and 5 of the statement of issues it prepared. Those issues were stated as follows: "(1) Whether the proposed development is out of character with the surrounding and development, including the adjoining school. … (3) Whether the proposed development will impact on the amenity of the area by way of noise, fumes, dust, wind-borne particles, visual impact and traffic. … (5) Whether the proposed development meets the objectives of the Rural (1)(c) zone under the Baulkham Hills Local Environment Plan within which it is situate". The Council contends that while no expert reports that exclusively dealt with the issue were prepared, or served, at least one expert report specifically referred to landscaping, and relevant components of the issue were the subject of examination and cross-examination of witnesses throughout the hearing. I accept the Council's submissions in this regard. Certainly the landscape treatment was crucial to the application which was being considered by the Assessor, and the applicant placed significant emphasis upon the landscaping layout in the design which accompanied the development proposal. It should have been clear to the applicant that landscaping was an issue that the Assessor was obliged to consider. A close examination of the transcript does not support the assertion by the applicant that the hearing was conducted by the Assessor in such a way that the applicant was given neither the opportunity to know, nor the opportunity to respond to, the Assessor's concerns. Mahon v Air New Zealand [1984] 1 AC 808. Contrary to the applicant's assertion that the subject development application is primarily an application for consent for a land use on a property where a building already stood, it clearly goes beyond that, as the plan with the application shows substantial structures and intended building work. Again I can find no error of law in the way the Assessor dealt with these aspects of the matter. Ground 8 - The concerns of objectors (In the formal "grounds" document filed in Court the eighth ground of appeal is numbered "9".) The Assessor dealt with concerns raised by representatives of the nearby school community, and the applicant contends that as they were unsupported by "hard evidence" they are irrelevant to the Assessor's function. Jarasius v Forestry Commission of NSW (1988) 71 LGRA 79. In fact there was evidence before the Assessor that the construction of the proposal embodied in the subject development application would reduce available street parking in the vicinity of the adjacent Dural school. Objectors gave evidence of their concerns as to safety issues involved in the use of Old Northern Road. There is no reason in law why such evidence should not be taken, and the weight attributed to it is a question of fact for the Assessor. Again, I can find no error of law on the Assessor's part. Conclusion As the above analysis discloses I can find no errors of law on the part of the learned Assessor in the way he dealt with this matter. Nor can I find any evidence to support the submission that the Assessor denied the applicant procedural fairness in the conduct of the hearing. I therefore dismiss the appeal and in accordance with the agreement stated by both sides on the question of costs, I order the applicant to pay the respondent's costs. The exhibits may be returned, as may the applicant's copy of the Transcript of the hearing before the Assessor. I HEREBY CERTIFY THAT THIS AND THE PRECEDING 17 PAGES ARE A TRUE AND ACCURATE RECORD OF THE REASONS FOR JUDGMENT HEREIN OF THE HONOURABLE JUSTICE T.W. SHEAHAN. Associate: 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.