Land and Environment Court New South Wales Medium Neutral Citation: Goyer v Pengilly [2015] NSWLEC 54 Hearing dates: 14 February 2014 Date of orders: 08 April 2015 Decision date: 08 April 2015 Jurisdiction: Class 4 Before: Pepper J Decision: Summons dismissed with costs. Catchwords: JUDICIAL REVIEW: whether council failed to take into account a mandatory relevant consideration in development control plan relating to reasonable sharing of views in determining to grant development consent – whether council erroneously took into account the planning principles in Tenacity Consulting Pty Ltd v Warringah Council [2004] NSWLEC 140 – whether decision to grant consent manifestly unreasonable where impact on views assessed as devastating – summons dismissed. Legislation Cited: Environmental Planning and Assessment Act 1979, s 79C Warringah Development Control Plan 2011, cl D7 Warringah Local Environment Plan 2000, cl 61 Cases Cited: Abebe v The Commonwealth [1999] HCA 14; (1999) 1977 CLR 510 Alphatex Australia v Hills Shire Council (No 2) [2009] NSWLEC 1126 Associated Provincial Picture House Ltd v Wednesbury Corporation [1948] 1 KB 223 Avon Downs Pty Ltd v Federal Commissioner of Taxation [1949] HCA 26; (1949) 78 CLR 353 BGP Properties v Lake Macquarie City Council [2004] NSWLEC 399; (2004) 138 LGERA 237 Botany Bay City Council v Premier Customs Services Pty Ltd [2009] NSWCA 226; (2009) 172 LGERA 338 Currey v Sutherland Shire Council (1998) 100 LGERA 365 Craig v South Australia [1995] HCA 58;(1995) 184 CLR 163 Green v Daniels [1977] HCA 18;(1977)13 ALR 1 Manning v Bathurst Regional Council (No 2) [2013] NSWLEC 186; (2013) 199 LGERA 147 Minister for Immigration and Citizenship v Xiujuan Li [2013] HCA 18; (2013) 249 CLR 332 Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611 Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 Segal v Waverly Council [2005] NSWCA 310; (2005) 64 NSWLR 177 Sky Design and Concepts Pty Limited v Pittwater Council [2008] NSWLEC 313 Stromness Pty Limited v Woollahra Municipal Council [2006] NSWLEC 587 Tenacity Consulting Pty Ltd v Warringah Council [2004] NSWLEC 140 Zhang v Canterbury City Council [2001] NSWCA 167; (2001) 51 NSWLR 589 Category: Principal judgment Parties: Wendy Elizabeth Goyer (Applicant) Kirk Pengilly & Layne Collette Beachley (First Respondent) Warringah Council (Second Respondent) Representation: Counsel: Mr T Hale SC with Ms C Novak (Applicant) N/A (First Respondent) Ms Sandra Duggan SC (Second Respondent) Solicitors: Michael Flaherty Solicitors (Applicant) Apex Law (First Respondent) Wilshire Webb Staunton Beattie (Second Respondent) File Number(s): 40709 of 2013 Judgment A Neighbour's Residential Development Blocks Mrs Goyer's View 1. In this litigation, commenced by way of summons filed on 17 September 2013, the applicant, Mrs Wendy Goyer, seeks to set aside a development consent granted by the second respondent, Warringah Council ("the council"), to the first respondents, Mr Kirk Pengilly and Ms Layne Beachley ("the first respondents"). 2. The first respondents filed a submitting appearance in the proceedings. Thus the contest became one between Mrs Goyer and the Council. 3. The gravamen of the dispute concerns the effect the development consent will have on the views of Mrs Goyer. In short, as approved, the development will block her existing partial view of the ocean. 4. However, because these are not Class 1 proceedings, but are judicial review proceedings in Class 4 of the Court's jurisdiction, the Court is significantly constrained as to the extent to which it may examine the merits of the council's decision, notwithstanding the distressing impact the grant of the consent has had on Mrs Goyer. 5. Ultimately, the Court has determined that Mrs Goyer's complaint lies squarely with the correctness of the council's decision and cannot be reviewed by the Court in this litigation. With none of the grounds of review having been successfully demonstrated, the summons must be dismissed with costs. Issues for Determination 1. The following issues for determination by the Court in the proceedings were agreed upon by the parties: 1. first, whether the council failed to take into consideration a mandatory relevant consideration under s 79C(1)(a)(ii) of the Environmental Planning and Assessment Act 1979 ("the EPAA"), namely, the requirements of cl D7 - Views in the Warringah Development Control Plan 2011 ("the DCP"); 2. second, whether a strict application of the planning principles in the decision of Tenacity Consulting Pty Ltd v Warringah Council [2004] NSWLEC 140 impermissibly affected the council's consideration of cl D7 of the DCP and the exercise of its discretion in the determination of the first respondents' development application; and 3. third, whether it was manifestly unreasonable to grant development consent in circumstances where the approval would cause Mrs Goyer's views to be lost in their entirety. The DCP 1. Clause A.6 of the DCP is in the following terms: Requirements Before granting consent for development the consent authority must be satisfied that the proposed development: Satisfied all applicable requirements of the Warringah Local Environmental Plan 2011. Meets the general and individual section objectives of the DCP. Complies with the built form controls (objectives and requirements) contained in Part B of this DCP. Is consistent with the relevant objectives and requirements in Part C Sitting Factors, Part D Design, Part E The Natural Environment and Part F Zones & Sensitive Areas of the DCP. Complies with the requirements for the specified area in Part G of the DCP, if applicable. Strict compliance with the numerical requirements of the DCP does not guarantee development consent. The proposed development must also meet the objectives of the DCP. 1. The objectives of the DCP are located in cl A.5: The overriding objective of the DCP is to create and maintain a high level of environmental quality throughout Warringah. Development should result in an increased level of local amenity and environmental sustainability. The other objectives of this plan are: Objectives To ensure development responds to the characteristics of the site and the qualities of the surrounding neighbourhood To ensure new development is a good neighbour, creates a unified landscape, contributes to the street, reinforces the importance of pedestrian areas and creates an attractive outcome. To inspire design innovation for residential, commercial and industrial development To provide high level of access to and within development. To protect environmentally sensitive areas from overdevelopment or visually intrusive development so that scenic qualities, as well as the biological and ecological values of those areas, are maintained. To achieve environmentally, economically and socially sustainable development for the community of Warringah. 1. Requirements concerning views are located in Part D Design. Clause D7 Views states in simple terms (emphasis added): Applies to Land This control applies to land to which Warringah Local Environmental Plan 2011 Applies. Objectives To allow for the reasonable sharing of views. To encourage innovative design solutions to improve the urban environment. To ensure existing canopy trees have priority over views. Requirements 1. Development shall provide for the reasonable sharing of views. Note Assessment of applications will refer to the Planning Principle established by the Land and Environment Court in Tenacity Consulting v Warringah Council (2004) NSWLEC 140. 1. Five diagrams followed illustrating view sharing in various scenarios, including view sharing from an elevated part of a building and a view corridor between structures where part of the structures contain two storey elements. Determination of the Development Consent by the Council 1. The factual context in which the DA was determined is as follows. On 17 May 2013 the first respondents lodged a development application with the council ("the DA") for alterations and additions to a residential dwelling located at 73 Crown Road, Queenscliff ("the premises"). Mrs Goyer, who resides at 75 Crown Road, received a letter from the council notifying her of the lodgement of the DA on 23 May 2013. 2. On 5 June 2013 Mrs Goyer lodged an objection with the council in respect of the DA. The basis of the objection was that the proposed development would destroy her "small but charming view" of the ocean from an upstairs room she uses as her "bedroom/living room": I currently enjoy a small but delightful view of the ocean and headland from the room upstairs which I use as my Bedroom/Living room. With the proposed development this lovely attribute of my home will be completely wiped out. I would be devastated by the loss of this small but charming view. I believe the petite framed view of the sea is a major part of what gives my house it's charm. In fact it was one of the major reasons that I purchased the house to begin with. I simply fell in love with the view of the ocean complete with the occasional sailing boats and whales passing. When home, I mostly find myself upstairs sitting in bed with a book enjoying the sunny room and looking out ever so often at the stunning blue of the sea. I find much solace in this ocean picture. When friends or family come around during the day I like to take them up to my Bedroom/living room as the ambience created by the sun and view is much more desirable than the downstairs section of my home. Another issue is the loss of the morning sunlight particularly in winter that floods into my bedroom as well as the stunning sunrises and sea breeze that blows through this corridor between the buildings. The way the building at 73 has been constructed suggests that it was designed in consideration of 71 and 75 Crown rd. The building at 2/75 is narrow and has already been limited in size by the council and if it had not been so limited our view would be even more extensive over 73's current single storey dwelling. 1. Enclosed were photos of the sunrise over the ocean that would be blocked by the alterations and additions to the premises. 2. On 19 June 2013 a council officer visited Mrs Goyer's premises for an inspection, including the room described above, to assess the concerns Mrs Goyer had about the impact of the proposed development on her views. 3. On 21 June 2013 the council's Senior Development Assessment Officer sent an email to the first respondents' planner, attaching a letter of the same date from the Council's Development Assessment Manager to the first respondents and a photo of the view from the upper level of Mrs Goyer's residence. The email noted that "the photo does not accurately convey the extent of the view impact" (in an adverse sense) and recommended the withdrawal of the DA by the first respondents. 4. The letter dated 21 June 2013 from the council to the first respondents described the view loss in the following blunt terms and recommended that an "alternative design solution be explored": Following a visit to both sites, it is evident that the proposed additions would have a devastating impact on the views enjoyed by the neighbouring property at no. 75 Crown Road. An assessment of the proposal against the four planning principles established by the Land and Environment Court Case of Tenacity Consulting Pty Ltd vs. Warringah Council has found that the application cannot be supported. Although the additions generally comply with the setback and height control, it is evident that a more skilful design could provide a similar development that could also preserve the views of the affected property. 1. In the letter, the council also "strongly encouraged" the first respondents to "withdraw this application and resubmit an application that addressed all of the issues listed above". 2. The first respondents replied by way of email on 26 June 2013, stating that "there are no other possible practical design alternatives suitable to maintain the unique design integrity of the building and give us the room that we require". In relation to the impact on Mrs Goyer's view, they said: In reference to the four planning principles established by the Land and Environment Court Case of Tenacity Consulting Pty Ltd vs. Warringah Council, our view is that – In assessing the neighbours view, it is not iconic. Only a small percentage of the view is of very distant ocean and is already obscured by our existing building and trees. The room containing their view is not there primary living area – it is a bedroom. The photographs taken were from a "standing" point of view and at best is still only a "glimpse". From a sitting position the existing glimpse of distant ocean would probably be halved. In assessing the impact to the whole of the property, the view loss is negligible as the neighbours only have a fragmented view of the distant ocean over our roof from the upstairs bedroom. There are no views from anywhere else in the house so there is no impact to all other areas. We feel that our proposal is reasonable given that all the other surrounding house along the Northern Crown Road "strip" are wholly 2 storey and block views from the houses to their South. In addition, you have already indicated that we comply with all the non-compliance with any planning controls. As we have already explored alternate and more skilful design options, including designs commissioned by the previous owners, we believe that our proposal is the best design outcome. 1. Having refused to withdraw the DA, on 1 August 2013, the DA was assigned to the council's Application Determination Panel ("ADP") for determination. 2. The report to the ADP of the same date, noted as one of the four principal issues, "D7 Views". Although the report initially stated that no submissions had been received by it in respect of the DA (which was plainly wrong in light of Mrs Goyer's objection), the report later corrected itself and made reference to one objector, which, when regard is had to the content of the report, may readily be inferred to be Mrs Goyer given the detailed manner in which the report considers the matters raised by her in her objection. 3. At a broad level the report stated that the DCP applied to the proposal and concluded that there was both compliance with the requirements of, and consistency with, the aims and objectives of the DCP. A table contained in the body of the report specifically indicated to the question of whether there had been "Compliance with the requirements" of the DCP in relation to "Views", "Yes". 4. In a more detailed analysis concerning "Views", the report considered the development against the underlying objectives of the D7 control in the following manner: 1. first, in relation to allowing for the reasonable sharing of views, the report had regard to the four planning principles outlined in the Court's decision in Tenacity Consulting Pty Ltd v Warringah Council [2004] NSWLEC 140 and applied them to the proposal. In terms of the nature of the view affected, the report noted that water views were more highly valued than land views and that whole views were more highly valued than partial views. In this instance, the view in question was "a partial view of the ocean to the north east including the horizon"; 2. second, the report noted that the views are "obtained from the first floor master bedroom from both a sitting and standing position…from an oblique angle over the rear boundary"; 3. third, in respect of the extent of the impact of the development on the views, the report stated that, "the view would be lost entirely from the master bedroom and as it the only view obtained from the dwelling, the view impact is considered devastating"; 4. fourth, as to the reasonableness of the proposal that was causing the impact, the report noted that even if the development was wholly compliant with all relevant development controls, this would not preserve the view from Mrs Goyer's property. In addition, although the first respondents had been requested to consider a redesign of the proposal, they had declined to do so on the basis that there was no alternative proposal that would have had the same development potential and that would still have maintained Mrs Goyer's view. The report stated that in these circumstances, "the loss of the view is primarily a result of the subdivision pattern and the proposal itself is considered reasonable." 1. The report's conclusion on the view loss assessment was as follows: Comment to Principle 3: The view would be lost entirely from the master bedroom and as it is the only view obtained from the dwelling, the view impact is considered devastating. 4. Reasonableness of the proposal that is causing the impact "The fourth step is to assess the reasonableness of the proposal that is causing the impact. A development that complies with all planning controls would be considered more reasonable than one that breaches them. Where an impact on views arises as a result of non-compliance with one or more planning controls, even a moderate impact may be considered unreasonable. With the applicant with the same development potential and amenity and reduce the impact on the views of neighbours. If the answer to that question is no, then the view impact of a complying development would probably be considered acceptable and the view sharing reasonable. … Even so, compliance with these two controls would not preserve the view of the objectors property. The applicant has been requested to consider a redesign of the proposal however; they have indicated that there is no alternative design solution that would provide them with the same development potential and still maintain the objectors view. The loss of the view is primarily a result of the subdivision pattern and the proposal itself is considered reasonable. Conclusion of View loss Assessment In summary, although the view impact of the proposed development is considered devastating, the view is obtained from the first floor bedroom of the adjoining property from an oblique angle over the rear boundary. Furthermore, the view is only a partial view and the interface between land and sea cannot be seen from the bedroom. Therefore the view is not considered to be iconic. The view enjoyed from the objectors property is unfortunately, vulnerable to view impacts as a result of the unusual subdivision pattern. The bulk and scale of the proposal; is reasonable and complaint with the controls which affect the overall view impact of the development. Although Council would like to see a more skilful design in order to minimise the view impact, it is not considered a refusal of the application could be justified on this basis. On balance, the proposal is considered to satisfy the view sharing principles established in the planning principle and the concern raised by the adjoining property on the basis of view loss does not warrant refusal in this instance. 1. And moreover, that: Having regard to the above assessment, it is concluded that the proposed development is consistent with the relevant objectives of the WDCP and the objectives specified in section 5(a) of the Environmental Planning and Assessment Act, 1979. Accordingly, this assessment finds that the proposal is supported in this particular circumstance. 1. Therefore, the report concluded that overall the proposed development was "consistent with the objectives of the DCP" and that it was recommended that consent be granted (subject to conditions that are not presently relevant). 2. Also on 1 August 2013, a memo was sent from Ms Teresa Gizzi, the council's Senior Development Assessment Officer, and Mr Phil Lane, the council's Acting Development Assessment Manager to the ADP. The memo concerned an assessment of the submission received from Mrs Goyer opposing the proposed development. In relation to the view loss from the "bedroom/living room", the memo commented that: A site visit to the property found that the view affected by the development is actually obtained from the windows of a first floor bedroom over the rear boundary. There are no views from the primary living and dining areas which are located at ground floor level. A full assessment of the view loss is undertaken under Clause D7 of WDCP 2011 later in this report. On balance, the view impact resulting from this development is found to be acceptable. 1. On 14 August 2013 consent was granted and the first respondents were notified of the approval. Mrs Goyer was also notified that day of the council's determination. 2. Mrs Goyer commenced proceedings in the Court on 17 September 2013. Whether the Council Failed to Take into Account Clause D7 Views of the DCP 1. It was not in dispute that the council was obliged to take into account cl D7 of the DCP in determining the DA. 2. Mrs Goyer submitted that while the council had regard to the objectives of cl D7 it had failed to consider, properly or at all, the requirement of cl D7, that the development "shall provide for the reasonable sharing of views", and therefore, it had not engaged with the clause as it was obliged to do (relying on the decision in Currey v Sutherland Shire Council (1998) 100 LGERA 365 at 373–375 per Stein JA). The express reference to compliance with the requirements concerning "views" having been met in the report was, she argued, insufficient, and amounted to no more than mere advertence. 3. In light of the many references to, and discussion of, cl D7 of the DCP in the material before the council prior to consent being granted on 14 August 2013, including the report to the ADP dated 1 August 2013 and the memo from Ms Gizzi to the ADP of the same date (Ms Gizzi was also, it must be noted, one of the advisors to the ADP at the meeting held on 1 August 2013 to determine the DA), it is impossible to rationally argue that cl D7 of the DCP was not taken into account by the council in determining to grant the consent. On any view it was. This includes not just the objectives underpinning cl D7, but also the requirement in that clause that the development provide for the reasonable sharing of views. 4. Much was made by Mrs Goyer of the absence of any reference to the requirement in cl D7, other than in the checklist referred to above, particularly by the council in assessing the "merit consideration" of the DA. The Court was therefore invited to draw the inference that the requirement had not been considered by the council. Put another way, Mrs Goyer argued that while the council had assessed the impact of the DA on her views, it had not assessed whether the DA provided for the reasonable sharing of views. 5. When the material before the council is read in its totality, the contention that the council did not consider whether the development provided for the reasonable sharing of views cannot be maintained. First, a study of the checklist reveals that the council was not satisfied that all the requirements of the DCP had been met. This demonstrates an active engagement by the council with the controls in that instrument and an appreciation of the difference between the objectives, on the one hand, and the requirements, on the other, set out in the DCP. 6. Second, when the council assessed the impact on Mrs Goyer of the DA as "acceptable", the council was stating its conclusion, not that the proposed development would provide for the sharing of views – clearly it would not, but that in all the circumstances the blocking of her view was reasonable. In other words, that the council was satisfied that development would provide for the reasonable sharing of views, which in this instance meant that, taking into account all of the surrounding matters relevant to the assessment of the DA, it was either reasonable that there be no sharing of views, or alternatively, that the requirement (which was not a mandatory precondition to the grant of the consent) could not be met but that approval should be granted in any event. Once the council had considered and concluded that the views could not be shared, reasonably or otherwise, there was no work left for cl D7 to do. 7. Third, in my view, Mrs Goyer's reliance on the decision in Currey is inapposite in this instance. That case concerned a prohibition in a local environmental plan ("the council must not consent to development") conditioned upon a precondition to the exercise of power by the council ("unless it is satisfied that"), and a relaxation of that prohibition in the same instrument. The Court of Appeal held that in those circumstances satisfaction of the specified criteria was as a matter of law a precondition to consideration of the merits of the development application under the EPAA and that the complete absence of any reference to the prohibition, or its exception, in the material before the council, permitted the drawing of an inference that the clause had not been considered by the council in granting consent. A reference to, and consideration of, an earlier decision of this Court concerning a similar, but not identical, clause by the council was insufficient to warrant the conclusion that the council had addressed the precondition, because the previous decision was not sufficiently explicit on the relevant issue. The consent was accordingly set aside because the council had failed to address the issue of its satisfaction with the precondition (at 374 per Stein JA). 8. In this instance, as a matter of construction, cl D7 neither prohibits consent being granted if the council is not satisfied that the proposed development does not provide for the reasonable sharing of views, nor does it require, as a precondition to the merit assessment of the DA, satisfaction with the clause. Rather, what is demanded is a consideration of the requirement contained in cl D7, which is, in my opinion, is what the council did. The decision in Currey is therefore distinguishable on this basis. 9. It is also distinguishable on the basis that in applying the planning principles in Tenacity, the council did not, unlike Currey, fail to address the central issue it was required to have regard in cl D7, namely, whether or not the DA provided for the reasonable sharing of views. The material before the council, which included the decision in Tenacity, was sufficiently directed to the question of the reasonableness of the sharing of views. The council considered the requirement in cl D7, had regard to the DA, and concluded that the DA would not provide for the reasonable sharing of views, but nevertheless determined to grant consent. It was entitled to do so. 10. Finally, cl D7 of the DCP was, in my opinion, given fulsome and proper consideration. Contrary to the alternative submission of Mrs Goyer, more than mere 'lip service' was given to the requirement contained in that clause (see Anderson v Director General of the Department of Environmental and Climate Change [2008] NSWCA 337; (2008) 163 LGERA 400 at [58]). Or, to use more familiar but oft maligned language, "proper, genuine and realistic consideration" (for the genesis of this epithet and its subsequent application and criticism, see the discussion in Fullerton Cove at [154]-[156]. More recently the Full Federal Court of Australia has employed the formulation "active intellectual engagement with the mandatory criteria (or the submission or representation)" in Mentink v Minister for Home Affairs [2013] FCAFC 113 (at [44]) was given to the requirement that the development provide for the reasonable sharing of views. 11. Accordingly, this ground of review must be dismissed. Whether the Council Erred in its Consideration of Clause D7 Due to Strict Adherence to the Planning Principles in Tenacity 1. Mrs Goyer submitted that the application of the planning principles in Tenacity diverted the council from focusing on the relevant control contained in cl D7 of the DCP. 2. Furthermore, it was contended by Mrs Goyer that the planning principles in Tenacity were conceived in respect of a different control, namely, cl 61 of the Warringah Local Environment Plan 2000 ("the 2000 LEP") (since repealed), which stated in relation to "views" that "development is to allow for the reasonable sharing of views" (emphasis added). The textual difference between cls D7 and 61 ("shall provide" versus "is to allow", respectively) meant that in applying the planning principles in Tenacity, the council had therefore misdirected itself as to the correct legal test (citing Craig v South Australia (1995) 184 CLR 163 at [101]). 3. Finally, it was argued that by "strictly" applying the decision in Tenacity, the council impermissibly fettered its discretion under cl D7, thereby failing to consider all matters material to the proper consideration of that clause, and moreover, failing to consider the merits of Mrs Goyer's objection as a whole. 4. These submissions should not be accepted. In my opinion, the council applied the correct test established in the control in cl D7 of the DCP. That is to say, consistent with cl D7, the council considered whether or not the development provided for the reasonable sharing of views and determined that in all the circumstances, it could not, but that the absence of any sharing of views by the proposed development was reasonable. Put another way, because there was no way that the views could be reasonably shared, there would be no reasonable sharing of views. So much so is evident from the report to the ADP on 1 August 2013. Either way, as mandated by the clause, the sharing of views was considered by the council, as was the reasonableness of the development application and its provisions for the sharing of those views. 5. That this assessment was informed by the planning principles in Tenacity was entirely orthodox. Not only was reference to these principles made by Mrs Goyer herself in her letter of objection to the council in June 2013 (the submission on the second page of the letter to the proposed development not meeting the "general view sharing principles established by the Land and Environment Court", may reasonably be inferred to be a reference to Tenacity), but the DCP expressly states that the assessment of development applications will refer to these principles. 6. The nature of planning principles was helpfully discussed by Moore SC in Alphatex Australia v Hills Shire Council (No 2) [2009] NSWLEC 1126 (at [39] – [44]): 39. Planning principles are developed by a process through the Court dealing with an abstract issue rather than the merits of a particular case. This is achieved by a collegiate process involving the Commissioners of the Court and, from time to time, interested Judges of the Court. 40. Although planning principles deal with a broad range of topics, they generally fall in one of two categories – namely definition or process oriented statements. Definition oriented planning principles 41. The first category is both descriptive and prescriptive – in that they include describing what might be regarded as the answer when a planning instrument proposes that an undefined performance criterion must be achieved. 42. A prime example of such a planning principle is that set out by Roseth SC in Parsonage v Ku-ring-gai [2004] NSWLEC 347 (2004); 139 LGERA 354 (dealing with access to sunlight). Process oriented planning principles 43. The second category is process orientated. These provide guidance for decision-makers on how to consider an issue where there is no detailed approach in the relevant planning instrument. 44. An example of these, as discussed later, is that in Tenacity Consulting v Warringah [2004] NSWLEC 140; (2004) 134 LGERA 23 dealing with impacts on views. 1. In relation to the view impact planning principles established in Tenacity, the Senior Commissioner opined (which I respectfully endorse) that (at [53]): 53. The view impact assessment principles in Tenacity, the most commonly cited planning principle, are of assistance unless there is a very prescriptive code established for a particular local government area and that code subsumes or sets aside all the relevant elements of the principles in that decision. Tenacity lists four steps for assessing impacts on views and suggests factors to be considered for each step. These steps provide guidance to enable the appropriate merit assessment to be made as required by s 79C of the Act. 1. The Court of Appeal has, it should be observed, endorsed the utility of planning principles (Segal v Waverly Council [2005] NSWCA 310; (2005) 64 NSWLR 177 at [96]). 2. Thus Tenacity provides an analytical platform to assess whether there is "reasonable sharing of views" as provided for in the DCP. 3. This required the council to consider the nature of the views affected; the extent of the impact and the reasonableness of the proposal causing the impact, including as against available design alternatives. As is elaborated upon below, this is what council did. 4. Mrs Goyer is correct to state that the principles espoused in Tenacity cannot usurp the requirements and objectives of cl D7 as expressed in the DCP. It is the DCP that is paramount. It is for this reason that planning principles are neither binding nor immutable (Segal at [99] per Tobias JA, Alphatex at [55] – [59], Stromness Pty Limited v Woollahra Municipal Council [2006] NSWLEC 587 at [83] and [86] per Pain J and Sky Design and Concepts Pty Limited v Pittwater Council [2008] NSWLEC 313 at [20]). Nor can the planning principles supplant the merit assessment that the council was obliged to undertake pursuant to s 79C of the EPAA (Stromness at [86]). As was stated by Moore SC in Alphatex, planning principles are intended as guidelines to assist in the resolution of issues that commonly arise in merit review cases, such as the impact of a proposed development on the views of a third party. Ultimately, however, each case will turn on its own facts and circumstances. 5. The fact that the planning principles in Tenacity were conceived with respect to cl 61 of the 2000 LEP is, in my view, immaterial. First, the textual differences are not so great that a wholesale jettisoning of those principles is warranted. They remain relevant and applicable to any consideration of cl D7 given the absence of any detailed (despite some detail, it must be acknowledged, provided for by the illustrations accompanying the clause) approach in the DCP to assist a decision-maker assessing the impact of a development on views. Second, as has been discussed above, the principles are just those, namely, principles. They are not binding proscriptions, rather they are guidelines only, to aid in the assessment of any development application. The principles in Tenacity are neither inconsistent with the general considerations of view sharing under s 79C, nor cl D7 of the DCP, and their consideration by the council would not, without more, necessarily result in a council having taken an approach contrary to law. 6. In the present case, the council did not ignore the control imposed by cl D7 or "substitute for the statutory requirement a different approach" (Zhang v Canterbury City Council [2001] NSWCA 167; (2001) 51 NSWLR 589 at [76] and Botany Bay City Council v Premier Customs Services Pty Ltd [2009] NSWCA 226 at [33] and [34]) in its application of the Tenacity principles. At all times the council considered cl D7 as the "fundamental element" or "focal point" (Zhang at [75]) of its decision-making process, assisted, as the clause stated it would be, by those planning principles. At no point did the council take the view that the control in cl D7 was inappropriate for reasons of policy (cf Premier Customs) or adopt a different standard (cf Zhang). Rather, it applied the requirement therein and concluded that it could not be met, viz, that it was not possible to provide for the reasonable sharing of views in respect of this development. Having considered and applied the control, the council correctly concluded, in my opinion, that cl D7 of the DCP was not "determinative" (Zhang at [75]) and proceeded to grant consent. 7. Moreover, the council neither fettered its assessment of the DA as contended by Mrs Goyer (relying principally on Green v Daniels [1977] HCA 18; (1977) 13 ALR 1 at 11 – 12 per Stephens J) nor "slavishly" followed the planning principles in Tenacity to the complete distraction of its task of examining the control in cl D7 of the DCP. Unlike the decision in Green, this was not a case where an application of the principles in Tenacity vitiated the discretion of the council to refuse or grant the approval. Indeed this submission was somewhat inconsistent with the earlier submission made by Mrs Goyer that cl D7 afforded no discretion to the council in circumstances where views could not be reasonably shared thereby compelling the council to refuse the DA. 8. In my opinion, there was nothing impermissible about the assistance derived from the application of the planning principles by the council to the DA before it. Having regard to those principles in its application of the relevant control contained in cl D7 of the DCP, the council determined that approval should be granted to the DA. While it is a result about which reasonable minds may differ in light of the adverse impact on Mrs Goyer's views, it is a result that cannot be challenged under this ground of review. 9. Implicit in Mrs Goyer's complaint is that because the alterations and additions to the first respondents' property would destroy her view, the council could not have assessed the proposed development against the requirement (or, for that matter, the objectives) in cl D7. Plainly this logic does not allow for the possibility (which has occurred in the present case) that a development may be detrimental to the views of a third party, even to the extent that no views are shared, but that the impact is nevertheless considered sufficiently reasonable by the council that consent may be granted (or alternatively, even if no reasonable sharing of views is possible, approval may, in any event, be granted). Mrs Goyer construes cl D7 to mean that the proposed development must permit the sharing of some views where those views are pre-existing. If it does not, then the control contained in the clause cannot be met and consent must be refused. That is to say, the term "reasonable" can operate to modify an existing view, but not to remove it altogether. 10. But if this were the intention of the control in cl D7 then the word "reasonable" would have been omitted from it. Properly construed, the term "reasonable" imports the potential that in some circumstances, a proposal that wholly impedes the views of another may still be reasonable in all the circumstances. As was succinctly stated in Tenacity (at [25]), "taking it all away cannot be called view sharing, although it may, in some circumstances, be quite reasonable." On Mrs Goyer's interpretation of cl D7, there is scant work for the concept of 'reasonableness' to do in this instance. 11. There is nothing in the text or context of cl D7 that justifies a construction that elevates the requirement in that clause to a mandatory precondition that must be satisfied before the council can assess the DA under s 79C of the EPAA, or that would effectively override the mandatory matters for consideration by the council under that section. Such an interpretation would also not, for example, be consonant with the objectives of cl D7 that speak merely of 'allowing' for the reasonable sharing of views (by contrast, the control must, as an objective, "ensure" that existing canopy trees "have priority over views", a far more rigid proscription). 12. Provided that the council properly considers (see the discussion of what this encompasses in Manning v Bathurst Regional Council (No 2) [2013] NSWLEC 186; (2013) 199 LGERA 147 at [66]) the terms of the DCP pursuant to s 79C(1)(a)(i) of the EPAA, together with the other factors it must take into account in s 79C(1), it is not compelled, contrary to Mrs Goyer's assertion, to refuse to grant consent because the development will not meet the requirement in cl D7 to provide for the reasonable sharing of views. Notwithstanding the seemingly mandatory edict of cl D7 ("shall provide"), the council may, consequent upon its analysis of the application under s 79C, grant consent for development that does not result in the sharing of views. Provided that it has properly assessed the development under s 79C of the EPAA, including taking into account the provisions of the DCP, this will be sufficient. 13. In summary, in my opinion, the merit analysis that the council undertook with respect to the first respondents' development application cannot be impugned on the ground that it was "distracted" from a proper consideration of cl D7 of the DCP, or its assessment of the proposal under s 79C of the EPAA, by reason of its application of the planning principles in Tenacity. This ground of review must consequently be dismissed. Whether the Grant of Consent was Manifestly Unreasonable 1. Mrs Goyer submits that the determination to grant consent premised on the conclusion that the proposed development provided for the reasonable sharing of views was manifestly unreasonable, especially in light of the council's assessment that the development would have a "devastating" impact on her views. 2. The submission is put two ways. First, the unreasonableness of the decision gives rise to the inference that the council has erred in its consideration of the decision in the sense articulated by Dixon J in Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353, where his Honour opined (at 360): The conclusion he has reached may, on a full consideration of the material that was before him, be found to be capable of explanation only on the ground of some such misconception. If the result appears to be unreasonable on the supposition that he addressed himself to the right question, correctly applied the rules of law and took into account all the relevant considerations and no irrelevant considerations, then it may be a proper inference that it is a false supposition. It is not necessary that you should be sure of the precise particular in which he has gone wrong. It is enough that you can see in some way he must have failed in the discharge of his exact function according to law. 1. But absent any further elaboration by Mrs Goyer, and in light of the rejection of the two grounds of review above, her submission amounts to no more than an invitation to the Court to erroneously examine the merits of the council's decision. It may be summarised as, having found that the impact on her view would be "devastating", applying cl D7 of the DCP the council's assessment that "the view impact resulting from this development is found to be acceptable" and that the "view loss does not warrant refusal in this instance", bespeaks of the council's decision having "gone wrong". 2. However, this is an incomplete conception of the exercise of power by the council. The council was aware that a consequence of the development would be the removal in its entirety of Mrs Goyer's view. It was for this reason that it assessed the impact on her view as "devastating". But the amenity impact on Mrs Goyer was not the only matter of merit that the council was required to consider when it assessed the DA. All of the matters under s 79C of the EPAA that were required to be assessed were there in fact assessed, balanced and weighed by the council. This included the fact that view was not from her downstairs living area but from her upstairs bedroom; that the view was not extensive or iconic; that there were no other practical design alternatives; that the proposed development was reasonable; and that the view was vulnerable to adverse impacts because of an unusual subdivision pattern. The weight to be attributed to each merit matter was the provenance of the council. An adverse finding of the impact of a single item listed in s 79C of the EPAA did not dictate the refusal of the DA (BGP Properties v Lake Macquarie City Council (2004) 138 LGERA 237 at [114]). Nor, in my opinion, is it indicative of an error of process by the council in its determination to grant consent. 3. Second, and in the alternative, the decision to grant consent to the DA was said to be manifestly unreasonable on the basis of the principle articulated in Associated Provincial Picture House Ltd v Wednesbury Corporation [1948] 1 KB 223 per Lord Greene MR, namely, that a court will hold invalid a purported exercise of discretionary power statutorily conferred upon a repository of that power that is so unreasonable that no reasonable repository of that power could have made the impugned decision pursuant to the exercise of that power (at 234 and 235). 4. The principle, although subsequently endorsed and entrenched in Australia (see Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611 at [124]; Abebe v The Commonwealth [1999] HCA 14; (1999) 1977 CLR 510 at [116]); Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 at [40]; Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at [123] and Minister for Immigration and Citizenship v Xiujuan Li [2013] HCA 18; (2013) 249 CLR 332), is not new. As the plurality in Li noted, a standard of reasonableness in the exercise of any discretionary power conferred by the legislature was demanded well before the decision in Wednesbury (at [64]–[66]). 5. In Li, French CJ described the operation of principle in the following terms (at [26]): 26 The rationality required by "the rules of reason" is an essential element of lawfulness in decision-making. A decision made for a purpose not authorised by statute, or by reference to considerations irrelevant to the statutory purpose or beyond its scope, or in disregard of mandatory relevant considerations, is beyond power. It falls outside the framework of rationality provided by the statute. To that framework, defined by the subject matter, scope and purpose of the statute conferring the discretion, there may be added specific requirements of a procedural or substantive character. They may be express statutory conditions or, in the case of the requirements of procedural fairness, implied conditions. Vitiating unreasonableness may be characterised in more than one way susceptible of judicial review. A decision affected by actual bias may lead to a discretion being exercised for an improper purpose or by reference to irrelevant considerations. A failure to accord, to a person to be affected by a decision, a reasonable opportunity to be heard may contravene a statutory requirement to accord such a hearing. It may also have the consequence that relevant material which the decision-maker is bound to take into account is not taken into account. 1. But his Honour sounded this note of caution (at [30]): 30 The requirement of reasonableness is not a vehicle for challenging a decision on the basis that the decision-maker has given insufficient or excessive consideration to some matters or has made an evaluative judgment with which a court disagrees even though that judgment is rationally open to the decision-maker. Gleeson CJ and McHugh J made the point in Eshetu that the characterisation of somebody's reasoning as illogical or unreasonable, as an emphatic way of expressing disagreement with it, "may have no particular legal consequence." 1. Similarly, in the joint judgment of Hayne, Kiefel and Bell JJ, their Honours stressed that (at [66]): 66 This approach does not deny that there is an area within which a decision-maker has a genuinely free discretion. That area resides within the bounds of legal reasonableness. The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power. Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be exercised for that of a decision-maker. Accepting that the standard of reasonableness is not applied in this way does not, however, explain how it is to be applied and how it is to be tested. 1. Justice Gageler also discussed the implied obligation on decision-makers to act reasonably (at [90], emphasis in original): 90 Implication of reasonableness as a condition of the exercise of a discretionary power conferred by statute is no different from implication of reasonableness as a condition of an opinion or state of satisfaction required by statute as a prerequisite to an exercise of a statutory power or performance of a statutory duty. Each is a manifestation of the general and deeply rooted common law principle of construction that such decision-making authority as is conferred by statute must be exercised according to law and to reason within limits set by the subject-matter, scope and purposes of the statute. 1. Equally, however, his Honour emphasised the very tangible constraints on the application of this ground of review (at [108]): 108 Judicial determination of Wednesbury unreasonableness is constrained by two principal considerations. One is the stringency of the test that a purported exercise of power is so unreasonable that no reasonable repository of the power could have so exercised the power. The other is the practical difficulty of a court being satisfied that the test is met where the repository is an administrator and the exercise of the power is legitimately informed by considerations of policy. 1. He reiterated the high threshold demanded by any successful application of the principle (at [113]): 113 Yet the stringency of the test remains. Judicial determination of Wednesbury unreasonableness in Australia has in practice been rare. Nothing in these reasons should be taken as encouragement to greater frequency. ... And he noted that, "judicial determination of Wednesbury unreasonableness in Australia has in practice been rare" (at [113]). 1. Having regard to the balancing exercise the council was required to undertake pursuant to s 79C of the EPAA, there is nothing identified in the material before the council that results in the conclusion that, after taking all relevant matters into consideration, including cl D7 of the DCP (and, by way of repetition, the fact that the view was not from her downstairs living area but from her upstairs bedroom, was not extensive, was not iconic, there were no other practical design alternatives, the proposed development was reasonable, and the view was vulnerable to adverse impacts by reason of the unusual subdivision pattern), the decision was outside the range of decisions open to a council acting reasonably. While reasonable minds may differ as to the suitability of the council's decision to grant approval, the determination of consent by the council cannot be characterised as manifestly unreasonable. 2. While the Court appreciates and has sympathy for Mrs Goyer's dissatisfaction with the merit assessment of the council, and its ultimate impact on her amenity, this is, regrettably, not enough for her challenge to sound in success in these Class 4 judicial review proceedings. Conclusion and Orders 1. Having been unsuccessful in establishing any of her grounds of review, Mrs Goyer's summons must be dismissed with costs. 2. The formal orders of the Court are therefore that: 1. the summons is dismissed; 2. the applicant is to pay the respondents' costs; 3. the exhibits are to be returned. ********** 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: 08 April 2015