Reported Decision : (2002) 127 LGERA 7 New South Wales Court of Appeal CITATION : Hill v. Woollahra Municipal Council & Ors. [2003] NSWCA 106 HEARING DATE(S) : 22 April 2003 JUDGMENT DATE : 7 May 2003 JUDGMENT OF : Hodgson JA at 1; Ipp JA at 62; Davies AJA at 63 DECISION : Appeal dismissed with costs. CATCHWORDS : LOCAL GOVERNMENT - Building control and town planning - Consent and approval of councils - Development application - Matters for consideration - Need to address question posed by statute - Presumption of regularity - Significance of imposition of conditions. LEGISLATION CITED : Environmental Planning & Assessment Act 1979 (NSW) ss.79C, 81A, 109E Carltona Ltd. v. Commissioner of Works [1943] 2 AllER 560 Guthega Development Pty. Ltd. v. Minister Administering The National Parks & Wildlife Act 1974 (NSW) (1986) 7 NSWLR 353 McLean Brothers & Rigg Ltd. v. Grice (1906) 4 CLR 835 CASES CITED : Minister for Natural Resources v. NSW Aboriginal Land Council (1987) 9 NSWLR 154 Morris v. Kanssen [1946] AC 459 North Sydney Council v. Ligon 302 Pty. Ltd. (1995) 87 LGERA 435 Western Stores Ltd. v. Orange City Council [1971] 2 NSWLR 36 Zhang v. Canterbury City Council (2001) 51 NSWLR 589 Richard James Hill - appeallant PARTIES : Woollahra Municipal Council - 1st respondent Paul Robertson Espie and Roslyn Margaret Espie - 2nd respondent FILE NUMBER(S) : CA 40446/02 Mr. B.W. Walker SC with Ms. J. Jagot for appellant COUNSEL : Mr. B.J. Preston SC with Ms. H.P. Irish for 1st respondent Submitting appearance for 2nd respondents Mallesons Stephen Jaques, Sydney for appellant SOLICITORS : Deacons, Solicitors for 1st respondent Pike Pike & Fenwick, Solicitors for 2nd respondents LOWER COURT Land & Environment Court JURISDICTION : LOWER COURT LEC40163/01 FILE NUMBER(S) : LOWER COURT Talbot J JUDICIAL OFFICER : IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40446/02 LEC 40163/01 HODGSON JA IPP JA DAVIES AJA Wednesday 7 May 2003 HILL V. WOOLLAHRA MUNICIPAL COUNCIL & ORS. Judgment 1 HODGSON JA: On 7 May 2002, Talbot J in the Land & Environment Court dismissed proceedings brought by the appellant Richard James Hill against the first respondent Woollahra Municipal Council and the second respondent Mr. and Mrs. Espie, seeking an order that development consent DA400/2000 granted by the Council on 12 June 2001 was void and of no legal effect. 2 The appellant appeals to this Court from that decision. CIRCUMSTANCES 3 The relevant consent relates to the property 5 Bennett Avenue, Darling Point, on which is erected a mid-19th century residence "Callooa". This residence is identified as a Heritage Item in the Woollahra Local Environmental Plan 1995 (the LEP), and is also classified by the National Trust of Australia and listed by the Australian Heritage Commission on the Register of the National Estate. The property is located at the intersections of Bennett Avenue and Thornton Street, and of Thornton Street and Yarranabbe Road, Darling Point, with frontages to all three streets. The land falls steeply from Bennett Avenue towards the west and south, and the level of the Yarranabbe Road frontage is substantially lower than the level of the Bennett Avenue frontage. 4 Prior to August 1998, there had been a high sandstone retaining wall along the Yarranabbe Road boundary of the land. On 19 August 1998, this wall collapsed due to landslip, and the subject development application proposed a development having the general effect of replacing this wall. 5 The development was lodged on 12 May 2000 by Planning Workshop Australia (PWA) on behalf of the owner of the property, said to be Mr. Espie, and it described the proposed development as "to incorporate a unit of residential accommodation two storeys high as part of the reconstruction of Callooa, 5 Bennett Ave's boundary wall and to subdivide the property into two lots". The subdivision involved creating from the original lot, which was 1542m² in area, two lots, one of them (lot 11) having a surface area of 329.1m² and being unlimited in depth but limited in height to the level RL19.5, and the other (lot 12) having a surface area of 1542m² limited in depth to the level RL95 where it overlaps lot 11, but otherwise unlimited in height and depth. The proposed new residence was to be erected within lot 11, with street access to Yarranabbe Road. The roof of the new residence was to be landscaped over and incorporated into the existing garden of Callooa, which was at a level slightly above RL19.5. 6 In determining this development application, the Council was required to comply with s.79C(1) of the Environmental Planning & Assessment Act 1979 (NSW), which is as follows: 79C(1)In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application: (a) the provisions of: (i) any environmental planning instrument, and (ii) any draft environmental planning instrument that is or has been placed on public exhibition and details of which have been notified to the consent authority, and (iii) any development control plan, and (iv) the regulations (to the extent that they prescribe matters for the purposes of this paragraph), that apply to the land to which the development application relates, (b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality, (c) the suitability of the site for the development, (d) any submissions made in accordance with this Act or the regulations, (e) the public interest. 7 Section 79C(1)(a)(i) requires the Council to take into account the provisions of any environmental planning instrument; and relevantly this included cl.18 of the LEP, which was as follows: 18(1) When considering an application for consent for development involving the excavation of any land, the Council shall have regard to how that excavation may temporarily or permanently affect: (a) the amenity of the neighbourhood by way of noise, vibration, dust or other similar circumstances related to the excavation process, and (b) public safety, and (c) vehicle and pedestrian movements, and (d) the heritage significance of any heritage item that may be affected by the proposed excavation and its setting, and (e) natural landforms and vegetation, and (f) natural water runoff patterns. (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) Consent for an excavation may be granted when consent is granted for any other development proposal for the carrying out of which the excavation is necessary. 8 The development application was accompanied by a planning report and statement of environmental effects by PWA, containing reference to the LEP, including statutory controls on the excavation of land (that is, cl.18) and setting out each of the topics in cl.18(1). In relation to "heritage significance", the report said this: The site is a listed heritage Item. The excavation works are a necessary precursor to the proposed development. As a result of the work, the house and gardens will be restored to their original condition and there will be no impact on the heritage significance. . 9 In relation to "natural water runoff patterns", the report said this: There are no major drainage paths passing over the site. There will be no permanent effects on natural water run off patterns off-site as a result of the excavation work. There is a drainage service passage incorporated in the proposed design to negate any effects of the development on the site and surrounding area. 10 The report then continued: It should be noted in connection with excavation that, prior to this development, it was planned to excavate and construct a swimming pool on the site. Excavation works for the swimming pool, under DA No.IDA886-99 were approved. 11 The report contained a further discussion of heritage implications in section 6.3 concerning cl.26 of the LEP, which relates to heritage implications generally, rather than specifically in relation to excavation as in cl.18; and an extensive heritage impact statement relating to an earlier DA was also annexed. 12 After public notification of the application, there were a number of submissions, to which PWA responded on 29 June 2000. 13 A memorandum dated 2 August 2000, prepared by Jacqui Hansen, Development Engineer of the Council, concluded as follows: Vehicle access is my only serious concern with this application. The other technical issues can be conditioned once we are sure that the vehicle access works. 14 On 28 June 2000, a meeting between representatives of the owner and officers of the Council including Ms. Hansen, Zoltan Kovacs (Heritage Officer of the Council) and Ryan Keys (Assessment Officer of the Council), arranged that amended plans should be lodged concerning vehicle access, heritage issues and other matters. These amended plans were lodged on 27 October 2000. 15 A report prepared by Mr. Keys for a meeting of the Council's Development Control Committee (DCC) on 5 March 2001 noted a comment by Mr. Kovacs that the amended plans adequately addressed certain issues, but not problems with the form of subdivision, with Mr. Kovacs expressing preference for subdivision under the Strata Titles Act rather than the Real Property Act. The report noted Mr. Kovacs' view that the proposed type of subdivision was not considered appropriate. The report expressed satisfaction in relation to vehicle access. In relation to excavation, it said this: In the normal course of events, the construction of the proposed new dwelling would require the removal of approximately 2,310m³ of material. However, due to previous landslip the vast majority of this material has already been removed from the site. The excavation process would, therefore, be reduced and the impact on adjoining properties would be restricted and would be satisfactory. As discussed below, however, the proposal would require the entire proposed Lot 11 to be excavated, which is considered excessive. 16 The report concluded with a recommendation that the Council refuse the application for a number of reasons, including the following statement concerning excavation: The proposed extent of excavation is excessive and does not comply with the provisions of Clause 18 of the Woollahra Local Environmental Plan 1995. 17 On 5 March 2001, the DCC considered the development application. Following a site inspection on 7 March 2001, it resolved to recommend that the Council approve the development application, subject to conditions, including as Condition 18 a usual condition concerning storm water disposal. The conditions also included the following conditions 51 and 52: 51. Preparation of geotechnical/hydrogeological report 1) Geology To ensure that the structural integrity of the proposal and neighbouring buildings will be maintained a full geotechnical report must be submitted to the Council or the PCAQ prior to the issue of a Construction Certificate and prior to the commencement of excavation works. The Report must include an investigation of site and soil conditions, as well as the proposed means of construction and must contain, where required, recommendations to ensure that excavation, backfilling and construction, including temporary works during construction, will not affect the structural integrity of neighbouring buildings or the structural stability of neighbouring public land, property, or services. The report is to be prepared and certified by an appropriately qualified practicing Geotechnical Engineer. 2 Hydrogeology A report on the hydrogeology of the site and its environs, prepared and certified by an appropriately qualified and practising geotechnical/hydrogeological Engineer, must be submitted to the Council or the PCA prior to the issue of a Construction Certificate and prior to the commencement of excavation works. The Report must examine the likely impact of the development on existing ground water flows on and below the site and adjoining properties. The Report must demonstrate that the development will not adversely affect the natural environments and that adequate levels of health and amenity to the occupants of neighbouring buildings and the locality will be maintained. 52. Compliance with recommendations of geotechnical/hydrogeological report All demolition, excavation backfilling and construction must be undertaken in accordance with the recommendations of the geotechnical/hydrogeological report. 18 On 12 March 2001, the Council referred the matter back to the DCC for further consideration. 19 On 16 March 2001, there was a written submission to the Council by the appellant enclosing reports by GHD Longmac (GHD) (Geotechnical and Hydrogeological Engineers) and Christopher Hallam & Associates (Hallam) (Traffic Engineers). GHD expressed the view that the development required geotechnical investigation, and Hallam expressed the view that the traffic implications of the proposed driveway were unsatisfactory. 20 Mr. Espie responded by a letter dated 19 March 2001. There was a meeting of the DCC also on that day, which called a site inspection on 21 March 2001. The DCC then resolved as follows: The Council's determination of Development Application No.400/2000 to incorporate a new two storey dwelling within the site of 'CALLOOA' plus the subdivision of the property into two torrens lots on land at 5 Bennett Avenue, Darling Point be deferred in order that: 1. The applicant submit Hydrological and Geotechnical reports and for such reports to be assessed by Council's Technical Services Division. 2. The possibility of reducing traffic speed of southbound vehicles in Yarranabbe Road through the possible realignment of the intersection of Yarranabbee (sic) Road and Thornton Street and the installation of a stop sign be submitted to the Woollahra Traffic Committee for consideration. 3. The possibility of the installation of traffic calming devices at the intersection of Yarranabbe Road and Thornton Street be submitted to the Woollahra Traffic Committee for consideration. 4. The impact of excavation on the heritage item be reviewed by Council's Technical Services Division. 5. A report is submitted clarifying the proposed easements to be created with the development. 21 A hydrogeological assessment by Richmond & Ross Pty. Limited dated 27 March 2001 was then submitted to the Council. This report concluded: Groundwater and overland flows would be altered from existing flow paths by the revised extent of allotments, buildings and paving from the previous layouts and extents, however the ultimate outfall for each flow path would remain unaltered. OSD will be provided in accordance with council policy on both allotments, hence no adverse effect from stormwater or groundwater would occur on the adjoining properties as a result of the proposed development. 22 A geotechnical assessment by Tony Phillips Consulting Pty. Limited (Phillips) dated 29 March 2001 was submitted. This assessment reached the following conclusion: The proposed development at 5, Bennett Avenue, is an unusual and innovative scheme, since the building will be permanently buried on three sides. It is proposed that a temporary retaining wall should be constructed around the perimeter using a conventional steel soldier and timber lagging type of wall. This will be founded in sandstone rock and stabilised with rock anchors. The sand fill in front of the wall can be excavated with a normal excavator. Below this, the rock can be excavated with a rock breaker and the cut face left to stand vertically. Limited minor support (rockbolting) may be required and this should be implemented by the contractor at the time. The building should be a fully tanked, concrete construction, able to withstand the lateral earth pressures generated behind the wall. Backfill behind the rear wall should be a blue metal filled, sub-soil drain which runs by gravity to the SW comer of the site where it can discharge into the road. Lateral forces due to earth pressure will be taken down to the building's foundations which will be socketed into rock. 23 On 19 April 2001, Phillips also provided a document outlining the proposed excavation procedure. 24 On 30 April 2001, a further letter was provided by GHD. This letter concluded: In general, the Phillips report provides a reasonable geotechnical model of the site, but does not contain any "ground truthing" to confirm a number of major assumptions. The risks associated with the project therefore remain significant. 25 There was a meeting of the Traffic Committee of the Council on 1 May 2001, and it recommended that the Council "not approve the proposed garage and driveway in Yarranabbe Road, Darling Point, on the grounds of safety issues including deficient sight distance affecting local traffic movements". 26 Ms. Hansen then prepared a ten page memorandum dated 3 May 2001 addressed to Mr. Keys. This referred to earlier submissions and documents, though not the GHD letter of 30 April. It discussed inter alia the reports by Phillips, especially concerning treatment of seepage water and how excavation would proceed. In relation to the latter, the memorandum concluded: The detailed description of the construction procedure, provided to Council by Tony Phillips is certainly more thorough than the Construction Management Plans generally reviewed by Technical Services. Given the site constraints, it is however reasonable that Council request submission of such a document. In the case of 5 Bennett Avenue, Council has asked for detailed information on how excavation will occur. A suitably qualified Engineer, Tony Phillips, well regarded by Council's Technical Service's Division, has prepared a detailed procedure, including sketches. It is the opinion of Technical Services that, if excavation is undertaken by a specialist excavation contractor, according to the procedure outlined by Tony Phillips, and supervised by a suitably qualified engineer such as Tony Phillips, Council can be confident that the impact on the heritage item, adjoining properties and Council land will be minimal. Finally, reading through the outline of the Excavation Procedure, two issues remain unresolved; namely the drainage of seepage waters from behind the temporary retaining wall and rock anchors left behind after the temporary retaining wall has been constructed. These issues can however be addressed through conditions of consent. It is recommended that the following special conditions be added to the consent. 1. Excavation Procedure Excavation to be undertaken on-site by an excavation contractor with specialist excavation experience. Excavation to be undertaken in accordance with "Outline of Excavation Procedure" prepared by Tony Phillips Consulting Pty Ltd, dated 19 April 2001. Excavation procedure to be supervised by a suitably qualified civil engineer, specialising in excavation. This engineer is to provide certification to Council, prior to issue of Final Building Certificate and issue of Certificate of Occupation, that excavation has been conducted according to the "Outline of Excavation Procedure". 2. Drainage of Seepage Water During Excavation Prior to the issue of the Construction Certificate, the applicant is to submit, to Council or the PCA, details of what positive drainage measures they propose to install to prevent the build-up of seepage water behind the temporary retaining wall and how the seepage water will be discharged. 3. Rock Anchors Lateral support to the temporary retaining wall is to be provided via rock anchors to the underlying sandstone. When the temporary retaining wall is removed the rock anchors will be de-stressed and left at depth in the ground. Prior to issue of the Construction Certificate, the applicant is to submit, to Council or the PCA, details of how the exact location of these rock anchors are going to be mapped and recorded so as to be easily located by any future owners of 5 Bennett Avenue. 27 In relation to the treatment of seepage water, it concluded: The proposed method of collecting and discharging seepage waters does appear to be designed according to sound engineering principles. To ensure that all seepage waters are appropriately dealt with and not permitted to drain in an uncontrolled manner across and along Yarranabbe Road, it is recommended that the following special conditions be included in the consent. There is at present, no Council stormwater drainage pipeline along the Yarranabbe Road frontage of the subject site. It will therefore be necessary for the applicant to extend the existing Council pipeline, which ends at No 46-48 Yarranabbe Road, to service the site. Several special conditions are recommended to ensure this work is completed in a satisfactory manner. 1.Drainage of Seepage Water to the Council Drainage Network. All seepage water must drain to Council's in-ground drainage network. No seepage waters are to drain across the footpath or into the gutter, in Yarranabbe Road. 2.Reconstruction of Council's drainage system - Need for Roads Act Approval The Council stormwater drainage pipeline in Yarranabbe Road does not presently extend along the frontage of the site. To facilitate connection to the Council in-ground drainage network, the applicant shall at no expense to Council, extend the existing 450mm diameter Council stormwater pipeline from the existing inlet pit adjacent to No 46-48 Yarranabbe Road to the existing converter pit at the northern corner of the subject site. Council records show that there are two existing converter pits in Yarranabbe Road, adjacent to No 5 Bennet Avenue. The existing converter pits are to be reconstructed as a double grated gully pits in accordance with Council Standard Drawing No 14732. The applicant is required to obtain a separate approval from the Council under Section 138 of the Roads Act 1993 for the required Council stormwater drainage works within Yarranabbe Road. This approval is to be obtained prior to the issue of the Construction Certificate. The applicant is required to submit to Council detailed engineering drawings for the proposed works, for approval, prior to issue of the Construction Certificate. The applicant is advised to liase with Council's Drainage Engineer prior to submission of drawings. 3.Yarranabbe Road Works Bond At no cost to Council, the applicant shall provide Council with a bank guarantee of $40,000 for the proposed cost of the Council stormwater drainage works within Yarranabbe Rd, prior to the issue of the construction certificate. This bank guarantee is to ensure that sufficient funds are available to Council to complete the reconstruction works or reinstatement as necessary should the applicant fail to complete these works to Councils satisfaction in a reasonable period of time. Council shall not release this bank guarantee until such time as stormwater drainage works and road restoration has been completed. After Councils final inspection of these works 10% of the bank guarantee will be retained for a further twelve (12) month period and be used by Council to repair any defects or temporary works necessary after the final inspection. 4. Council Infrastructure Inspections and Certifications The construction of Councils stormwater drainage and the restoration of Yarranabbe Road shall be inspected and certified by a civil and/or structural engineer. Hydraulic and structural certification is to be provided to Council, prior to the release of the Yarranabbe Road Works Bond and Occupation Certificate. 5. Construction of Pipelines in Council's roadway All new pipelines constructed in Council's roadway or drainage reserve and easement must: a) be of a class that is in accordance with the manufacturer's recommendation with rubber ring joints, and b) have bedding to standard HS3 in accordance with Australian Standard AS 3725 (Loads on Buried Concrete Apes). 6. Permanent Drainage of Seepage Water Permanent subsoil drainage to be constructed in accordance with the report titled "5 Bennett Avenue, Darling Point; Geotechnical Aspects of Proposed Development on Yarranabbe Road Frontage" prepared by Tony Phillips Consulting Pty Ltd dated 29 March 2001. Construction of permanent subsoil drainage to be supervised by a suitably qualified civil engineer. The engineer is to provide certification to Council prior to issue of the Final Building certificate and issue of the Occupation Certificate that the subsoil drainage has been constructed according to the recommendations made in "5 Bennett Avenue, Darling Point; Geotechnical Aspects of Proposed Development on Yarranabbe Road Frontage". (Note, the subject report does recommend that seepage water discharge directly into Yarranabbe Road. This is not approved. All run-off from the site; seepage water and stormwater run-off must drain to Council's in-ground drainage network.) 28 In relation to storm water runoff, the memorandum stated as follows: In the draft conditions of consent for 5 Bennett Avenue, Darling Point, standard condition of consent F2 (Stormwater Disposal) is listed. It is recommended that this condition be replaced with standard conditions of consent F3 (Stormwater Management Plan) and F4 (On-site Detention), in light of the additional information that has been submitted to Council since the 26th of March. It is recommended that the following special condition is included in the consent as well. Stormwater Management Plan A revised Stormwater Management Plan is to be submitted to Council or the PCA for approval, prior to issue of the Construction Certificate. Stormwater run-off is not to be stored in an above ground basin in the grounds of the heritage item, Callooa. Due to the sandy soil, and the unique nature of the proposed development, there is the potential for this type of detention structure to increase seepage water to the downhill property. The Stormwater Management Plan to show all roof and hard-paving run-off from the existing building draining to a sealed detention tank. All run-off from the site must drain directly to Council's in-ground drainage network. Discharge to the kerb in Yarranabbe Road is not permitted. 29 The report concluded as follows: In response to points raised by Council's Inspection Committee on the 26th of March 2001, the applicant has submitted additional information to Council. The information is detailed and generally of a high standard. As Council's engineers are not specialist experts in excavation or construction, Technical Services must be guided by the opinions of experts. From the information submitted to Council it appears that the applicant has fully considered the site conditions (hydrologic and geotechnical) and formulated a procedure for site excavation and construction of the development. If excavation and construction are undertaken according to the approved procedure, then there should be minimal impact on the heritage item. 30 On 9 May 2001, Mr. Espie submitted a report from a traffic consultant, which concluded that the access driveway achieved traffic safety. However, a memorandum by the team leader of the Traffic Committee dated 28 May 2001 expressed the view that, despite this report, the resolution of 1 May 2001 should remain. 31 On 23 May 2001, there was a response by Phillips to the GHD document of 30 April, which dealt in detail with the points raised, and concluded: In response to GHD-Longmac's final comment I believe that this whole project has been carefully thought through and the level of risk is very low. Had this not been the case, I would have advised that more investigation work should have been carried out prior to preparing my report. 32 GHD responded again on 1 June 2001, and identified certain issues it considered had "not been adequately addressed". 33 There was a further report by Mr. Keys for the DCC meeting on 4 June 2001, expressed as supplementary to the earlier report. It contained the following statements in relation to excavation: Notwithstanding the information provided, it is considered that the nature of development, involving the excavation of an entire site is not appropriate for the residential environment of Darling Point. This point is highlighted by the proposed new dwelling not complying with a significant number of the objectives and performance criteria contained in the Woollahra Residential Development Control Plan 1999. The extent of excavation and subsequent non-compliance would also establish an undesirable precedent within the Municipality. The difficulties in constructing the proposed dwelling within the existing site of 5 Bennett Avenue is also illustrated by the issues raised by Council's Technical Services Development Assessment Team Leader's regarding stormwater run-off. Consequently, while it is conceded that the site conditions would allow for the proposed development to be constructed, the extent of the excavation is not considered satisfactory in the context of the surrounding residential environment and the degree of non-compliance with Council's Woollahra Local Environmental Plan 1995 and the Woollahra Residential Development Control Plan 1999. Additional comments prepared by GHD-Longmac Pty Ltd, dated 30 April 2001, were submitted by an objector regarding the geotechnical report by Tony Phillips Consulting Pty Ltd, which was submitted by the applicant. As noted in Council's Technical Services Development Assessment Team Leader's comment, Council does not have the specialist expertise to comment on the opposing arguments and the comments were referred back to the applicant to be addressed. 34 The report again recommended against approval, for the same reasons before, and two further reasons, one of them being an "unacceptable safety issue" from the location and design of the garage entrance. 35 At its meeting on 4 June 2001, the DCC by a majority recommended that the Council approve the development application, and it put together suggested conditions for the approval. These conditions included a substituted Condition 18, containing detailed requirements for a stormwater management plan, Conditions 35 and 36 requiring submission of a construction management plan, Conditions 50 and 51 being identical to the previous Conditions 51 and 52, and finally Conditions 58 to 68 incorporating the conditions suggested by Ms. Hansen in her memorandum of 3 May 2001 as set out above. 36 Further submissions on behalf of Mr. & Mrs. Espie were provided to Council in a letter dated 6 June 2001 from their solicitors, Pike Pike & Fenwick. 37 The development application was dealt with at the Council meeting on 12 June 2001. Out of fourteen councillors present, there were seven councillors for and seven against, and the application was approved on the casting vote of the mayor. PROCEEDINGS 38 Proceedings were brought by the appellant in the Land & Environment Court, seeking the order referred to earlier. In the Amended Statement of Claim, paragraphs 11-15 were as follows: 11. In granting development consent to the DA the Council failed to have regard to a relevant matter, namely: (a) geotechnical, and/or (b) hydrogeological impacts. Particulars 1 Any and all "hydrological and geotechnical" information submitted in support of the development application: a) was either not properly hydrological and geotechnical information; and/or b) related to a proposal other than that which was the subject of this development consent insofar as the works will be required to be located 0.75 metres further to the north than that which was proposed in the development application, such matters being relevant and fundamental to the Council's decision having regard to: (i) history of prior landslip on the site; (ii) location and proximity of the heritage item Callooa; (iii) the Council's policy requiring submission of geotechnical and hydrological information with development applications; and (iv) WLEP clause 18. 2 The Council failed to take into account: a) the structural integrity of neighbouring buildings, public land, property or services; and/or b) the impact of the development on existing ground water flows below the site and on adjoining properties. 12 In the premises of paragraphs 35 and 36 above, the Development Consent is void and of no legal effect. 13 Further and in the alternative, in granting development consent subject to conditions 1, 58 and 66, the Council failed to take into account a relevant consideration, namely the impacts of the additional works required to comply with condition 58 and condition 66 on: (a) the geotechnical stability of the site; (b) the hydrological impacts of the works upon the site and the proposed building; (c) the heritage significance of Callooa. Particulars a) The plans approved in condition 1 would require modification in order to comply with the terms of condition 66 and condition 58 insofar as the works to be carried out would be required to be relocated 0.75 metres further to the north than that which was proposed in the plans which were approved and referred to in condition 1. b) Any and all "hydrological and geotechnical" information submitted in support of the development application: (i) was either not properly hydrological and geotechnical information; and/or (ii) related to a proposal other than that which was the subject of this development consent insofar as the works will be required to be located 0.75 metres further to the north than that which was proposed in the development application, such matters being relevant and fundamental to the Council's decision having regard to: A history of prior landslip on the site; B location and proximity of the heritage item Callooa; C the Council's policy requiring submission of geotechnical and hydrological information with development applications; and D WLEP section 18 . 14 Further, or in the alternative, in granting the Development Consent at all or without having imposed any conditions relating to traffic safety the Council made a decision which was manifestly unreasonable. Particulars The Council failed to heed a recommendation or impose a condition or conditions requiring: (a) that the proposed garage and driveway in Yarranabbe Road, Darling Point, not be approved on the grounds of safety, including deficient sight distances affecting local traffic movements; (b) the intersection of Yarranabbe Road and Thornton Street be realigned and a stop sign installed prior to occupation of the development; (c) the works recommended in (c) above be carried out in accordance with Council's Drawing No 14838, at no cost to Council; (d) the sandstone wall along the street frontage of the site be splayed at 45 degrees to the street alignment at the point where the sandstone wall intersects the northern wall of the garage access; or (e) the installation of a convex mirror. 15 In the premises of paragraph 14 above the Development Consent is void and of no legal effect. 39 The primary judge was not satisfied that the Council's decision was manifestly unreasonable. On the question whether it was shown that the Council did not have regard to matters it should have had regard to, the primary judge said this: 39. The remaining issue is whether or not the imposition of condition 50 recognised the failure of the council to have regard to the potential off-site impacts and geotechnical matters, they being matters that it had on other occasions indicated were relevant and fundamental to a determination to a development consent involving excavation. The applicant submits that these considerations were clearly relevant to the council in the light of cl 18 of the WLEP, the history of a prior landslip at the site, council's own policy and the provisions of s 79C(1)(b) and (c) of the EP&A Act 40. Condition 50 is a self-executing provision whereby the development cannot proceed unless issues relating to the integrity of adjoining structures and the hydrogeology on the site are resolved to the satisfaction of the council. If the geotechnical engineers report does not demonstrate that:- ...excavation, backfilling and construction, including temporary works during construction, will not affect the structural integrity of neighbouring buildings or the structural stability of neighbouring public land, property, or services... then no construction certificate will be forthcoming. Likewise, in the absence of a demonstration by an appropriately qualified and practicing geotechnical/hydrological engineer that "the development will not adversely affect the natural environments and that adequate levels of health and amenity to the occupants of neighbouring buildings and the locality will be maintained" a construction certificate will not be issued. 41. Condition 50 shows that the council specifically took into account the prospect of off-site impacts and geotechnical matters and took appropriate steps to ensure they would not occur. It is not necessary for the detail to be addressed at the point of determination of the application if a condition can be drafted to effectively deal with the issues that might arise. … 47. After anxious consideration the Court is not prepared to draw an inference that the council failed to consider relevant factors as alleged by the applicant. The material before the council in respect of the traffic safety issue and the imposition of conditions together with the material before the council in respect of other matters satisfies the Court that there was proper, genuine and realistic consideration of the matters that it was required to take into account. 48. The decision made by the council was clearly open to it and cannot be said to fall into the category of being so unreasonable that it should never have reached the conclusion it did. The determination fell within the bounds of the discretion entrusted to it as the decision-maker. GROUNDS OF APPEAL 40 In the original Notice of Appeal, there were the following three grounds: 1 His Honour erred at law in finding that the decision of the Respondent to approve the development application notwithstanding the traffic safety impacts was not manifestly unreasonable; 2 His Honour erred at law in finding that it was not manifestly unreasonable for the Respondent to determine that the traffic safety impacts were not such as required the development application to be refused or conditions imposed upon any consent to ameliorate the traffic safety impacts; 3 His Honour erred at law in determining that the pre requisites to approval contained in clause 18 of Woollahra Local Environmental Plan 1995 were capable of being satisfied by the imposition of conditions upon any development consent requiring such matters to be addressed. 41 At the hearing of the appeal, an amendment was sought to alter the grounds to the following two grounds: 1 His Honour erred in failing to hold that the First Respondent, in determining the development application, did not consider matters relevant pursuant to s 79C of the Environmental Planning and Assessment Act 1979 (the Act) namely: (a) the suitability of the site for the development in terms of the geotechnical and hydrogeological impacts of the development; (b) the traffic safety impacts of the development; and (c) clause 18 of Woollahra Local Environmental Plan 1995. 2. By reason of the matters in paragraph 1 above, his Honour erred in holding that the decision of the First Respondent to grant development consent to the development application was one made in accordance with the Act and was one reasonably open to be made. 42 The Court did not rule on this application, which was opposed by Mr. Preston SC for the Council on the ground that, having regard to the pleadings referred to above and the conduct of the case before the primary judge, the issues raised by the proposed Amended Notice of Appeal, especially by paragraph (c) of ground 1, were not properly raised below. However, the argument proceeded on the basis that the appellant could present all his arguments, and the Court would rule on the amendment if it was necessary to do so. LEGISLATION 43 In addition to s.79C of the Environmental Planning & Assessment Act, referred to above, the case also required reference to s.81A and s.109E of that Act, which are as follows: 81A(1) A development consent that enables the erection of a building is sufficient to authorise the use of the building when erected for the purpose for which it was erected if that purpose is specified in the development application, subject to section 109M. (2) The erection of a building in accordance with a development consent must not be commenced until: (a) a construction certificate for the building work has been issued by: (i) the consent authority, or (ii) an accredited certifier, and (b) the person having the benefit of the development consent: (i) has appointed a principal certifying authority, and (ii) has notified the consent authority and the council (if the council is not the consent authority) of the appointment, and (c) the person having the benefit of the development consent has given at least 2 days' notice to the council of the person's intention to commence the erection of the building. (3) A development consent that enables the subdivision of land may authorise the carrying out of any physical activity in, on, under or over land in connection with the subdivision, including the construction of roads and stormwater drainage systems. (4) Subdivision work in accordance with a development consent must not be commenced until: (a) a construction certificate for the subdivision work has been issued by: (i) the consent authority, or (ii) an accredited certifier, and (b) the person having the benefit of the development consent: (i) has appointed a principal certifying authority, and (ii) has notified the consent authority and the council (if the council is not the consent authority) of the appointment, and (c) the person having the benefit of the development consent has given at least 2 days' notice to the council of the person's intention to commence the subdivision work. (5) The regulations may make provision concerning the issue of certificates for the erection of buildings and the subdivision of land. 109E(1) A person who proposes to carry out development involving building work or subdivision work pursuant to a development consent or complying development certificate may appoint the consent authority or an accredited certifier as the principal certifying authority for the development. (2) Despite subsection (1), an accredited certifier must not be appointed as the principal certifying authority for development involving subdivision work unless the subdivision to which the work relates is of a kind identified by an environmental planning instrument as one in respect of which an accredited certifier may be a certifying authority. (3) An accredited certifier who has been appointed as a principal certifying authority must not be replaced by another accredited certifier except with the approval of the relevant accreditation body. (4) Such an approval may be given only if the relevant accreditation body is satisfied that replacement of the accredited certifier is appropriate in the circumstances of the particular case. SUBMISSIONS 44 Mr. Walker SC for the appellant submitted that the Council had not done what it was required to do by s.79C of the Act and cl.18 of LEP, namely to "have regard to how [the excavation of land involved in the development] may temporarily or permanently affect" inter alia "the heritage significance of any heritage item that may be affected by the proposed excavation and its setting" and "natural water runoff patterns". It was insufficient merely to have regard to these topics. The Council was required to address the very questions posed by cl.18, in the terms specified by cl.18: see North Sydney Council v. Ligon 302 Pty. Ltd. (1995) 87 LGERA 435 at 443, Zhang v. Canterbury City Council (2001) 51 NSWLR 589 at [61]-[77]. 45 Mr. Walker submitted that the presumption of regularity meant only that there was an onus on the appellant to show that the Council had not acted as required. The primary judge referred to the fact that there was extensive material before the Council, but this did not mean that the Council had considered the question. Mr. Walker relied particularly on two considerations as showing that the Council had not done so. 46 First, Mr. Walker submitted that the only explicit reference to cl.18 in material before the Council was in Mr. Keys' two reports, where his advice to the Council was that the development was in breach of cl.18. In addition, the Council had before it competing reports of experts, and the advice from its own Development Engineer was that the Council did not have the relevant expertise and had to rely on specialist experts. In order to have regard to how excavation may affect matters, Mr. Walker submitted, the Council had to have some understanding of what the effects of the excavation would be; and on this there were merely conflicting views of experts which the Council's own most qualified person could not resolve. 47 Second, Mr. Walker submitted, the Conditions 50 and 51, far from showing that the Council did have regard to the matters in cl.18, as the primary judge suggested, rather showed that the Council did not consider these matters but put them off for later consideration, either by the Council itself or by an accredited certifier appointed by the developer under s.109E of the Act. In effect, Condition 50 said that if the development can be done without impact, then it could proceed. In answer to a suggestion that the insertion of Conditions 58-68 showed that the Council had considered the matters, Mr. Walker submitted that the retention of Conditions 50 and 51 showed that the Council had truly left the matter for future consideration. 48 Mr. Walker also submitted that the Council was required by s.79C to take into consideration likely impacts of the development, including impacts on traffic safety. He submitted that, in circumstances where the Council's relevant committee said that traffic safety aspects were unsatisfactory, it could be inferred that the Council had not done so. 49 Mr. Preston SC for the Council submitted that the material showed that the Council did have regard to the matters required by cl.18. Although cl.18 was not named, it was specifically dealt with by the Statement of Environmental Effects lodged with the development application. The Council Development Engineer in fact did analyse the expert reports, and expressed confidence in Phillips. Although Mr. Keys referred to cl.18, his only objection to excavation was a planning objection (that the excavation was essentially of the whole site), and he gave no reason why he said that cl.18 was not complied with. GHD did not say that the Phillips proposal would not work, but merely suggested that further investigation was required. The insertion of Conditions 58-68 showed that the matter had been considered and determined. Mr. Preston also relied on the Carltona principle, to the effect that proper consideration by officers of the Council acquitted the Council of the need to make independent scrutiny: see Carltona Ltd. v. Commissioner of Works [1943] 2 AllER 560 at 563; Guthega Development Pty. Ltd. v. Minister Administering The National Parks & Wildlife Act 1974 (NSW) (1986) 7 NSWLR 353 at 368. DECISION 50 The cases of Ligon 302 and Zhang are authority for the proposition that, where a body such as a local council is required by a statute to address a question posed by that statute or by an instrument referred to by the statute, it must address that very question. If it does not do so, it will be in breach of the statute, even though it may have adverted to the topic of the question. 51 However, when a court comes to consider whether or not such a breach has occurred, the court will have regard to the presumption of regularity. This presumption was relevantly stated as follows by McHugh JA in Minister for Natural Resources v. NSW Aboriginal Land Council (1987) 9 NSWLR 154 at 164 at follows: Where a public official or authority purports to exercise a power or to do an act in the course of his or its duties, a presumption arises that all conditions necessary to the exercise of that power or the doing of that act have been fulfilled. See also Morris v. Kanssen [1946] AC 459 at 475; Western Stores Ltd. v. Orange City Council [1971] 2 NSWLR 36 at 46-7. 52 I do not accept Mr. Walker's submission that this does no more than identify where the onus of proof lies. The presumption is a presumption of fact, associated with a reasonable inference based on what ordinarily happens in the ordinary course of human affairs: see McLean Brothers & Rigg Ltd. v. Grice (1906) 4 CLR 835 at 849-51 per Griffiths CJ. In deciding whether the presumption of regularity is rebutted, this inference from the ordinary course of human affairs carries some weight, which may vary according to the proved circumstances. 53 Another consideration relevant to this question is that, so long as the body in question does address the question it is required to address, it does not have to refer explicitly to the statute or instrument that poses the question: the body is required to address the substance of the question, not the fact that the question is posed by a particular statute or instrument. Explicit reference to the statute or instrument will help confirm that the body did address the right question, but absence of such reference does not of itself indicate that it did not. 54 Ligon 302 and Zhang were cases where the questions to be addressed were detailed and quite specific. In Ligon 302, they were detailed provisions as to privacy, sunlight, daylight and views, building line, maximum size, landscaping and number of storeys. In Zhang, what was required to be considered was a standard that a brothel should not be located within 200 metres of a church or school. In those cases, it was inferred that the body in question had done no more than advert in general terms to the impact of the development, and this was held to be insufficient. 55 By contrast, in the present case, what had to be taken into account was how excavation may affect certain matters, and advertence in general terms to the impact of the excavation in respect to those matters is substantially in accordance with that requirement. In any event, the questions posed by cl.18 were squarely raised in a document submitted with a development application, and there was discussion in subsequent documents relevant to those questions. 56 I accept Mr. Preston's submission that the express reference to cl.18 by Mr. Keys was not supported by any argument relevant to cl.18 matters, and that the objection expressed by Mr. Keys concerning excavation was on town planning considerations, not considerations relevant to cl.18. I also accept Mr. Preston's submission that the disclaimer by Ms. Hansen concerning specialist expertise did not mean that she was not able to assess and evaluate competing submissions of experts. 57 In those circumstances, leaving aside for the moment any inference that might arise from the inclusion of Conditions 50 and 51, I do not think that the primary judge was in error in not inferring that the Council did not have regard to the matters required by cl.18 of the LEP. Accordingly, even if I proceed on the basis that the primary judge was adequately asked to draw that inference, and on the basis that the proposed amendment to the appeal grounds is permitted, I would not find error in that respect. 58 Turning to the insertion of Conditions 50 and 51, in my opinion this does not require or suggest a different result. In my opinion, the insertion of those conditions has to be evaluated having regard to the two stages of approval for a development involving the erection of a building. First, there is the obtaining of development consent from the Council, under s.80 of the Act, at which stage there need not be detailed plans and specifications of the proposed building. Second, there is the obtaining of a construction certificate from the Council or accredited certifier under s.81A of the Act, this being a certificate to the effect that work completed in accordance with certain plans and specifications will comply with the requirement of regulations referred to in s.81A(5) (see s.109C(1)(b)). At the stage of giving development consent, the Council could make the assessment that, consistently with the requirements of cl.18, provided certain guidelines are followed and provided the Council or an accredited certifier is satisfied by a subsequent report by a qualified engineer that construction in accordance with detailed plans and specifications would not adversely affect the neighbourhood, then the development approval could be given. In my opinion, this is in substance what happened here, and no failure to address the cl.18 questions is shown. 59 These views do not involve any application of the Carltona principle. I do not need to rule on whether detailed consideration by a Council officer absolves individual members of the Council from addressing questions, in cases where it is the Council itself rather than some delegated person or body that makes the relevant decision. I would comment, however, that members of a local council are not required individually to pursue every possible aspect of questions such as those raised by cl.18, but can rely on conclusions drawn by qualified officers such as engineers like Ms. Hansen and town planners like Mr. Keys, and it is open to members of a council to accept or reject such conclusions. 60 In relation to the question of traffic safety, the appellant is on weaker ground. There is no specific requirement concerning traffic safety like cl.18, and no condition of approval like Conditions 50 and 51. It is true that the Council's Traffic Committee advised that the development was unsatisfactory in this respect, but there were contrary views before the Council, and the Council members inspected the site themselves. Traffic safety is a matter on which Council members could, to some extent, rely on their own observations and opinions. In my opinion, there is no basis for drawing an inference that the Council did not take this matter into account. 61 In those circumstances, there is no need to rule on the amendment application. The appeal should be dismissed with costs. 62 IPP JA: I agree with Hodgson JA. 63 DAVIES AJA: I agree with Hodgson JA. ********** Last Modified: 05/08/2003 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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