Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Greenwood v Warringah Council [2014] NSWCA 205 Hearing dates: 24 June 2014 Decision date: 24 June 2014 Before: Ward JA; Leeming JA Decision: Leave to appeal is refused with costs. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: APPEAL - Land and Environment Court - leave to appeal - decision of a judge of the Land and Environment Court on a s 56A appeal - whether to grant leave to appeal under s 57(4) of the Land and Environment Court Act 1979 - need to identify question of law material to decision sought to be impugned - no error of law in dispositive reasoning - leave refused Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW), s 97 Land and Environment Court Act 1979 (NSW), ss 56A, 57 Cases Cited: Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; 88 ALJR 52 Category: Principal judgment Parties: Scott Robert Greenwood (Applicant) Warringah Council (Respondent) Representation: Counsel: A Pickles / J McKelvey (Applicant) I Hemmings SC / M Seymour (Respondent) Solicitors: Michael Flaherty (Applicant) Storey and Gough Lawyers (Respondent) File Number(s): 11797/2014 Decision under appeal Jurisdiction: 9106 Citation: [2013] NSWLEC 223 Date of Decision: 2013-12-24 00:00:00 Before: Biscoe J File Number(s): 2013/10534 Judgment 1JUDGMENT OF THE COURT delivered by LEEMING JA: The applicant, Mr Scott Greenwood, seeks leave to appeal pursuant to s 57 of the Land and Environment Court Act 1979 (NSW) from a decision of the primary judge (Biscoe J), made on 24 December 2013: [2013] NSWLEC 223. His Honour dismissed an appeal brought pursuant to s 56A of the Land and Environment Court Act from the decision of two Commissioners (Dixon C and Ritchie AC) made on 18 June 2013: [2013] NSWLEC 1119. Those Commissioners, after a six day hearing and with the advantage of a view, dismissed an appeal in Class 1 of the jurisdiction of the Land and Environment Court from the respondent Council's refusal of the applicant's development application (DA 2010/1822) for the shredding and stockpiling of green and wood materials on Crown land on Mona Vale Road, Belrose. 2The nature of the appeal pursuant to s 56A, heard and determined by the primary judge, was one confined to a question of law. Likewise, any appeal from the decision of the primary judge to this Court is confined to a question of law. 3Further, although the proceedings before the primary judge were final in nature, an appeal to this Court only lies by leave: s 57(4)(c). That reflects, in part, the fact that a party disappointed by a decision on an appeal under s 56A will normally have already enjoyed, as in this case, or be entitled to, a review on the merits by a judge or commissioner, as well as an appeal on a question of law. 4It is necessary in order to give content to the procedural history outlined above, to say something of the land in respect of which the applicant seeks development approval. The site in Mona Vale has had a relatively complex planning history. The Commissioners recorded at [2] that: "The business operates on the site under a Permissive Occupancy and a series of Mining/Mineral Leases (ML 46, ML 47 and ML 52) from the Crown. There is also an Environmental Protection Licence (EPL 4669) in place authorising the disposal and storage of particular waste on ML 46 and ML 47. These proceedings concern a development application (DA 2010/1822) for the use of a part of ML 46 for the shredding and stockpiling of green and wood waste." 5The development application was refused by Council on 25 March 2011. The applicant propounded an amended application in merits review proceedings brought pursuant to s 97 of the Environmental Planning and Assessment Act 1979 (NSW). In those proceedings, the respondent Council filed what ultimately became a further amended Statement of Facts and Contentions (on 4 December 2012) which included [9]: "insufficient information has been submitted for a proper and accurate assessment to be made of the development application"; a series of 12 particulars were provided in relation to the Council's contention. 6The reasons of the Commissioners address the nature of the proposal, the Council's contentions, the planning framework and statutory controls, the site and its context and development history and then three particular topics: acoustic evidence about a bund wall, details as to the proposed operational plan, and "desired future character". The latter was a reference to cl 12(3)(b) of the former LEP, which the parties agreed continued to be applicable in the assessment of the application which had been lodged prior to its repeal. Under the heading "Desired Future Character" the clause provided, inter alia, that "the natural landscape including landforms and vegetation will be protected and, where possible, enhanced". Under each of those three headings were summarised the evidence bearing on those issues and the Council's submissions. 7Because at the forefront of the applicant's proposed grounds of appeal is the claimed inadequacy of reasons, it is convenient to reproduce the whole of the Commissioners' findings at [52]-[55] which led to the applicant's appeal being dismissed: "[52] The applicant's reliance upon the assessing officer's report about a different proposal is obviously problematic. His determination that it is low-intensity or low impact is irrelevant particularly, in light of Mr Atkins' evidence in this case about the need for an acoustic bund to achieve acceptable acoustic levels. Without further evidence, including a comprehensive operational plan, the Court accepts the Council's submission that it is impossible to assess whether the current proposal is low-intensity and low-impact and, thereby, consistent with the Locality Statement. [53] The development before the Court relies on an amended concept plan, which proposes works that Mr Boston concedes are likely to impact on the surrounding natural landscape including its vegetation and landform. However, those impacts cannot be assessed because there is insufficient detail before the Court. There is not sufficient detail about essential matters such as: exiting site contamination and remediation works (if necessary), soil and water management investigations and plans, a stormwater management plan, a revegetation and rehabilitation management plan with detailed landscaping species and distances from stockpiles so as to minimise bushfire risk, weed removal and revegetation of embankments adjoining the natural bushland or a traffic management plan or a comprehensive operational plan. [54] The site is as Ms McCabe states in the joint report at p 8 "highly disturbed" but it sits within a broader vegetated natural landscape adjoining the Garigal National Park. We do not accept Mr Boston's evidence that the site is disturbed; therefore, the natural landscape is outside the site. In our assessment the Locality Statement applies and, therefore, the Court must be satisfied, as required by cl 12(3)(b), that the development is consistent with the Desired Future Character in the relevant Locality Statement. The adjoining natural landscape in the national park is not pristine as was evident at the Court's view of the site and its locality however, that cannot mean that the national park it is not part of the natural landscape. So too is this site. [55] Accepting that the Locality Statement applies to this site we agree with the Council's submissions (based on Ms McCabe's evidence) that there is not sufficient evidence to satisfy the Court that the proposed use is consistent with the relevant Locality Statement under cl 12(3)(b) of WLEP 2000 which is relevant under s 79C(1)(a) of the Act. The lack of detail in this application also precludes a proper assessment of the likely impacts of the development, including environmental impacts on the natural and built environments under s 79C(1)(b) and, ultimately the suitability of the site for the development under s 79C(1)(c) of the Act." 8It will be seen that the Commissioners, in respect of a number of aspects of the assessment of the amended application, considered that insufficient evidence had been provided in order that they could be satisfied that a variety of planning criteria would be met. This was consistent with the case advanced by Council in its Statements of Facts and Contentions. Although in part the Commissioners' conclusion was informed by their construction of cl 12(3)(b), its gravamen was simply that an assessment of environmental impact could not be undertaken. 9By his appeal pursuant to s 56A to the primary judge, the applicant advanced four matters claimed to be errors of law: (a) that the Commissioners "failed to give any, or any adequate, reasons for their decision", (b) that the Commissioners "erred in law by determining that there was insufficient information to assess the application, without evidence", (c) the Commissioners erred in law by "misdirecting themselves regarding, and/or defining other than in accordance with law, the relevant test from the Locality Statement under clause 12(3)(b)" of Warringah LEP 2000, and (d) "the Commissioners erred in law in failing to determine and give reasons in support of a time limited consent in conjunction with the lawful uses of adjoining land proffered by the applicant". Aspects of the first three (but not the fourth) of those matters were pressed in support of the application for leave. 10The primary judge first summarised the Commissioners' judgment, stating at [20] that: "It can be seen that the Commissioners' material factual findings leading to the their ultimate factual finding that there was not sufficient detail to satisfy them that the proposed use was consistent with the DFC, included the following: (a) The amended application included the erection of an acoustic bund around the perimeter of the site: at [6]. Although the length, material and external treatment was undecided, the Commissioners noted that the applicant's acoustic expert recommended a permanent, 250 metre long, 4.5 metre high and 2.4 metre wide, landscaped acoustic bund around part of the perimeter. The Commissioners noted that the applicant, however, proposed a deferred commencement conditions to address the "detail" but suggested a shale wall, which is not permanent: at [6]. (b) The application proposed a number of other deferred commencement conditions, as recorded in Council's marked up version of the draft conditions. (c) An operational plan was necessary to "detail" the proposed use and integration of functions with the adjoining operations, but the applicant did not adequately finalise the operational plan and ultimately proposed a deferred commencement condition requiring the preparation of such a plan within six months of consent: at [41]. (d) The list of matters which the operational plan had to cover was outlined in draft deferred commencement condition 8, but many of those matters were not dealt with at all in the operational plan ultimately tendered by the applicant: at [42] - [43]. (e) The evidence of Ms McCabe, Council's expert, was that it was inappropriate to defer preparation of the "detail" of the operational plan to a time after the issue of the consent: at [44]. (f) Without further evidence including a comprehensive operational plan, it was, as submitted by Council, impossible to assess whether the proposal was low intensity and low-impact and, therefore, consistent with the Locality Statement: at [52]. (g) The impacts of the works proposed by the concept plan (which the applicant's expert, Mr Boston, conceded were likely to impact on natural landscape, including its vegetation and landform) could not be assessed because there was insufficient detail before the Court: at [53]. (h) The Commissioners accepted Council's submission (based on Ms McCabe's evidence) that there was not sufficient evidence to satisfy the Court that the proposed use was consistent with the relevant Locality Statement: at [55]." 11His Honour then addressed each of the four grounds of appeal. It seems that the principal submissions before the primary judge were based on Grounds 1 and 2. His Honour dismissed those grounds for these reasons (at [31]-33]): "[31] In my opinion, the deferred commencement conditions are important in the resolution of Grounds 1 and 2. All six 'essential' matters about which the Commissioners found at [53] there was not sufficient detail, were the subject of proposed deferred commencement conditions that the parties had put before the Commissioners in the event that consent was granted. The document before the Commissioners that contained those conditions indicated that the appellant disputed only two of these conditions, namely traffic management and contamination. Counsel for the Council says that the appellant disputed those two items because the appellant contended it had already provided enough detailed information in relation to those two matters; therefore the appellant was acknowledging that more detail was required for the other four matters. Counsel for the appellant disagrees. This disagreement is unfortunate since counsel for the parties before me also appeared for the parties before the Commissioners. Counsel for the Council took me to a number of transcript references which seem to support his submission. [32] More importantly, and regardless of the precise basis of the appellant's objection to the deferred commencement conditions, it was reasonably open to the Commissioners to take the view that the six matters referred to at [53] were not sufficiently detailed in the information already before the Court, and that further detail should be provided as indicated in the deferred commencement conditions in order for them to be satisfied as to consistency with the DFC, as well as to assess likely impacts under s 79C(1)(b) and ultimately the suitability of the site for the development under s 79C(1)(c) of the EPA Act. Given the content of the deferred commencement conditions, I do not consider that it was necessary for the Commissioners to descend further into the detail of what was required. [33] Indeed, it is unnecessary to go beyond the findings in relation to the acoustic bund, for of themselves they provided the Commissioners with a basis to refuse development consent. The essential findings were that details of the acoustic bund had yet to be determined; the Commissioners were unclear about the details; and, to overcome the problem, the applicant accepted a deferred commencement condition containing various details: at [35]-[39]. This was draft deferred commencement condition 7. Any other suggested error cannot revive the development application because the Commissioners would have refused consent in any event based on the bund matter. As an appeal can only succeed in relation to a ground that vitiates the decision, it is unnecessary to consider the further grounds (although I will do so)." 12It will be seen that the primary judge regarded the fact that it was reasonably open to the Commissioners to take the view that the six matters referred to in [53] of their judgment were sufficient to support their conclusion that the appeal should be dismissed. On a fair reading of [32], that was the most important element in his Honour's reasoning, which was, expressly, independent of the dispute recorded in [31] as to the precise status of the "without prejudice" conditions proffered by the parties. 13It is possible to be more concise in summarising the way in which the primary judge dealt with the third ground, for although this was argued in two ways before the primary judge, only one is pressed in support of the application for leave to appeal and then principally by reliance upon the written submissions only. The focus was on [54] of the Commissioners' reasons (which is reproduced above) and was relevantly dealt with by his Honour as follows: "[36] The appellant submits that the Commissioners erred at [54] in two respects. First, the appellant submits there is a contradiction in [54] in that the Commissioners accepted the evidence of Ms McCabe (Council's expert) that the site is highly disturbed and then rejected Mr Boston's (the appellant's expert) "almost identical" conclusion. I do not accept the submission. Each of those witnesses agreed that the site was disturbed. The relevant difference between them was that Mr Boston was of the view that because the site was disturbed it meant that it did not form part of the natural landscape within the meaning of the DFC. Ms McCabe was of the view that it did. The Court accepted Ms McCabe's view and rejected Mr Boston's." 14It is now possible to turn to the proposed grounds of appeal in respect of which leave is sought. 15Some of those proposed grounds assert error of law in the decision of the Commissioners. This is repeated in the applicant's written submissions, but not in his oral submissions. Those grounds and submissions may be put to one side immediately. The subject matter of any appeal, pursuant to s 57, is the decision of the primary judge (who dismissed a s 56A appeal from the decision of the Commissioners). The "question of law" which is essential to an appeal under s 57 must be one found in the decision from which that appeal is brought. 16Further, if a decision discloses error of law, but that error is not dispositive of the decision of the primary judge, then that will be a sound reason, at least in an ordinary case, to refuse leave to appeal. 17The proposed grounds of appeal, insofar as they deal with the primary grounds raised before the primary judge, are in these terms: "1 ... Biscoe J erred in law in finding that the existence of content of "without prejudice" deferred commencement conditions meant that it was unnecessary for Commissioners Dixon and Ritchie to give proper reasons for their decision. 2. Biscoe J erred in law in finding that Commissioners were entitled to refuse development consent on the basis of a lack of detailed design for an ancillary aspect of the development, being an acoustic wall or bund. 3. Biscoe J further erred in finding that ground 2 in the appeal below was answered by the finding referred to in ground 2 above." 18The second and third of those proposed grounds do not attack the dispositive reasoning of the primary judge in [32]. The first proposed ground does attack the reasoning in [32], but it does so in a way that is bound to fail. Its premise is that the reasons given by the Commissioners were not "proper". True it is that failure to give legally sufficient reasons is reviewable for legal error: Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; 88 ALJR 52 at [28]. What amounts to sufficient reasons depends on the context, and in particular the nature, of any appeal. I did not understand Mr Pickles, who appears for the applicant, to contend otherwise. As McHugh J said in Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 281: "If no right of appeal is given against findings of fact, a failure to state the basis of even a crucial finding of fact, if it involves no legal standard, will only constitute error of law if the failure can be characterised as a breach of the principle that justice must be seen to be done." 19The gravamen of the applicant's submissions appears from the written submissions: "[I]t was incumbent on the Commissioners to consider whether the matters of detail sought by the Council were essential matters to enable a proper determination of the appeal or whether they were matters of detail that could be the subject of conditions. They failed to do that exercise and instead concluded that the existence and content of the draft conditions demonstrated a lack of detail." 20It is neither necessary nor appropriate for present purposes to dwell more precisely on the content of the obligations of Commissioners to give reasons when exercising Class 1 of the jurisdiction of the Land and Environment Court. There was no error, let alone error of law, in the primary judge concluding that adequate reasons had been given for the Commissioners' conclusion. On a fair reading of the reasons of the Commissioners, they were deciding that there was insufficient material on a range of issues regarded by them as key to enable them to assess the proposed development. 21That was the force of [32] of the reasons of the primary judge. Mr Pickles fairly acknowledged in oral address that he could put little against the first sentence of [32] of the reasons of the primary judge. He did say, however, that there was legal error in the primary judge's failure to find that the Commissioners needed to take a further step, namely, to determine whether the matters which the Commissioners regarded as essential were in fact essential or mere matters of detail. It is not necessary to express a view whether that submission is right or wrong. Assuming it is right, that is precisely what occurred. 22In [52], on its fair reading, the Commissioners formed the view that the deficiencies there referred to were essential. In [53], the Commissioners used the language of "essential" in terms. That was correctly apprehended by the primary judge, who, in [4] of his reasons, summarised the approach taken by the Commissioners from which the appeal was brought as follows: "they found there was no sufficient detail of evidence (including lack of a comprehensive operational plan) about essential matters" (emphasis added). 23The complaint in relation to the fourth and fifth proposed grounds dealt with the third ground of the appeal to the primary judge, and in a more confined way than had been argued before his Honour. As articulated in the applicant's written submissions, it was that: "[The primary judge did] not deal with the proposition that having found as a fact that the site was 'highly disturbed', it was not open, on a proper interpretation of the Locality Statement in the LEP to find that the land did form part of the natural landscape and that the development was required to fulfil the requirement to 'protect and where possible enhance' the 'natural landforms and vegetation'". 24It is not necessary to form a concluded view on the construction of (repealed) cl 12(3)(b) of the LEP, and it is invidious to do so on the basis of the limited materials made available to this Court on the hearing of the application for leave. It is also far from clear whether the applicability of the Locality Statement to the subject land amounted to an error of law, but again it is not necessary to express a concluded view on the issue. It is sufficient for present purposes to note that even if the "highly disturbed" site did not form part of the natural landscape for any relevant purpose within the LEP, such that the Locality Statement did not apply, that conclusion would not have altered the decision to refuse the amended application. The gravamen of the reasons of the Commissioners, as found in [52]-[53] and the second sentence of [55], is independent of the conclusion that the Commissioners were unable to be satisfied that the proposed use was consistent with cl 12(3)(b). As much was candidly conceded and in my view, properly so, by counsel for the applicant in oral address. 25It follows that even making those assumptions, favourable to the applicant, there are insufficient prospects of ultimate success to warrant a grant of leave. 26For those reasons, leave to appeal should be refused, with costs. ********** 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. Decision last updated: 01 July 2014