187 Kent Pty Ltd v Council of the City of Sydney

187 Kent Pty Limited v Council of the City of Sydney [2007] NSWLEC 88; Australian Broadcasting Tribunal v Bond & Ors (1990) 170 CLR 321; Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139; Campbelltown City Council v Toth (2004) 135 LGERA 336; CASES CITED: Commissioner for the Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 ; Eastlake Golf Club Ltd v Botany Bay City Council [2007] NSWLEC 236 ; F Hoffman-La Roche & Co AG v Secretary of State for Trade and Industry [1975] AC 295; Hill v Green (1999) 48 NSWLR 161; Segal & Anor v Waverley Council (2005) 64 NSWLR 177; SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs and Anor (2006) 231 ALR 592

APPLICANT Mr P Rigg, solicitor SOLICITORS Deacons LEGAL REPRESENTATIVES: RESPONDENT Mr J E Griffiths SC with Ms S E Pritchard SOLICITORS Maddocks

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

COUNCIL OF THE CITY OF SYDNEY Respondent

1 This is an appeal under s 56A of the Land and Environment Court Act 1979 (the LEC Act) alleging that a Commissioner of the Court erred in law in refusing a development application, with the consequence that the Commissioner's decision should be set aside.

2 The development application sought consent to use part of an existing building (being levels 1 to 8 in strata plan 61897) for "residential and/or serviced apartment use".

3 The applicant contended that the following questions of law arose in the appeal. 1. The Commissioner erred in law by departing from the rules of procedural fairness in failing to permit the Applicant to call further evidence in relation to the amenity impacts of the proposed development, namely, noise amenity impacts of the proposed development. 2. The Commissioner erred in law in making the following findings of fact that of which there was no evidence which infected the whole of the Commissioner's reasoning:

(1) The greater frequency of short-term occupants in and out of the building is potentially disruptive for long-term occupants, particularly at times such as early in the morning or late at night through disturbance such as doors closing, noise from adjoining apartments and general conversation in common areas; (2) Noise mitigation measures would be unlikely to remove all the potential noise impacts caused by short-term occupants; (3) Long-term occupants would generally have a greater expectation and promote a more quiet and peaceful amenity than short-term occupants, as they would regard their apartment as a home compared to a temporary place to reside for short-term occupants; and (4) Long-term occupants are also likely to be less tolerant of disturbances and likely to be concerned with activities that may potentially cause damage to the building, as they would have a greater feeling of ownership and ultimately be responsible through the Owners Corporation for repairs. (5) Appropriate amenity cannot be provided with a mix of residential and serviced apartments that share the same floor and access points. 3. The Commissioner erred in law by failing to give proper reasons for concluding that there is a fundamental incompatibility between a mix of residential and serviced apartments that share the same floor and access points and that without further evidence concerning noise amenity impacts such conclusion was without reason or evidence.

4 The Council filed and served a statement of issues on 6 October 2006 as required by the Court's directions. The statement identified the first issue, in part, as follows: Issue 1 - Impact on Amenity of Residents 1. The proposed use would have unacceptable impacts on the amenity of permanent residents, especially in relation to security, potential noise and servicing of the serviced apartments.

5 The appeal was heard on 1 February 2007. It was common ground in the appeal that levels 1 to 8 of the building were contained within strata plan 61897, whereas levels 9 to 27 were contained within a separate strata plan. Levels 1 to 8 had originally been constructed for the purpose of serviced apartments and levels 9 to 27 for residential accommodation. However, by development consent granted in 2002, levels 1 to 8 were converted to residential apartments. The present application sought consent to use the units within levels 1 to 8 as both residential apartments and serviced apartments, in effect, as might suit the owner or manager of any unit from time to time.

6 The appeal commenced on the site, at which various residents gave evidence. The Council tendered notes of the residents' evidence. That evidence included submissions from: (i) Mr Orr of unit 205 who was concerned that there would be an impact on amenity of owner-occupiers and long-term tenants who want peace and tranquillity, (ii) Mr Wood of unit 806 who referred to unrest in the building due to short-term occupants, (iii) Mr Williams of unit 1101 who considered that there would be a loss of amenity to the building, including the health club, as short-term occupants do not treat the building the same as long-term occupants, and (iv) Mr Staveley, the national manager of the Tourism Transport Forum who was concerned about the outcomes in terms of an "uncontrolled …pattern of usage".

7 The evidence included written submissions from residents in response to the notification of the development application and an application under s 82A of the Environmental Planning and Assessment Act 1979 (the EPA Act) seeking to review the Council's refusal of the development application. The owners corporation of strata plan 61643 submitted, in part: All available evidence suggests that serviced apartments result in a loss of amenity for permanent residents…. … In fact allowing "dual use" would combine the worst features of Strata Plan 61897's operations as residential apartments and as serviced apartments. Both Strata Plan 61643 and Strata Plan 61897 residents would get an intensity of use comparable to a continuously occupied hotel, but without the high degree of management supervision and maintenance associated with its former status as a hotel.

8 The principal development assessment report to the Council, also in evidence, recommended refusal of the application. The report included the following paragraphs: The provision of tourism facilities is a stated objective of the zone, as is the encouragement of the multi-use character of Central Sydney. However, the presence of these objectives can not be construed as meaning that the multi-use character and the provision of tourist and visitor accommodation can be conducted at the expense of approved and existing residential development. Council's Policy for the Provision of Tourist and Visitor Accommodation in Central Sydney provides further clarification of this point, and states as an objective that "the design, operation and impact of tourist and visitor accommodation [is to ensure that it] does not unreasonably affect the amenity of the surrounding area ." The building in which the dual use is proposed to be conducted can be appropriately described as the surrounding area. The high rate of occupant turnover that is associated with serviced apartments is considered to have an unreasonable impact on residents within the building, unless these uses can be adequately separated. There is a difference in the living and activity patterns and behaviour of short and long-term residents, and the responsibility to resolve and control any conflict between the uses and occupants falls entirely upon the serviced apartment managing agency. Short-term residents have no long term interest in the maintenance of the amenity within the building or the surrounding area. While it appears that the dual use has been occurring on the site for a number of years, the reliance on the managing agency to maintain acceptable levels of residential amenity leaves open the potential for considerable adverse impact should changes to management occur in the future.

9 The parties had agreed to the appointment of a Court appointed town planner, Mr David Crane. Mr Crane's report, filed and served in December 2006, dealt with issue 1, in part, as follows: Levels 1 to 8 of the building were originally designed as serviced apartments and not with suitable kitchen areas, adequate storage or provision for parking for long term tenure as residential units, and in my opinion are more suitable for serviced apartments than for permanent residency. As the building is provided with a full time reception/concierge service and security surveillance and card access system, I do not consider security to be an issue with the proposed dual residential unit/serviced apartment use. As regards to potential noise, it is questionable as to what evidence exists that short term occupants of serviced apartments are any noisier than longer term occupants of residential units. Serviced apartments are more likely to be occupied for short term residential accommodation rather than that associated with the likes of a hotel or motel. Occupancy turnover rates are not a determinant of residential amenity and it would appear that all other amenity related objectives identified in Clause 36 of the CSLEP and Section 6.1 of the CSDCP are acceptable to the respondent Council. As regards to servicing, Levels 1 to 8 of the building were originally designed for use as serviced apartments. By having serviced apartments in the building, more services such as cleaning, dry cleaning and laundry services are available to the permanent residents of the building. Having serviced apartments in the building should also assist in ensuring the on-going maintenance and viability of other facilities provided in the building, such as the communal lounge and internet room, health club/gymnasium, pool, and food shop at street level, which can only benefit the permanent residents of the building.

10 Mr Crane gave further evidence during the hearing. He answered a question put by the Council's representative, which led to an exchange with the Commissioner as follows: Q. Okay, go back a step. You heard in my opening that I said to Commissioner that we don't need to crystal ball gaze at what may ensue in this application because here we have an applicant who has unlawfully, with a small "u", making use of units contrary to a condition for serviced apartments and he's endeavouring to regularise that use through a consent now, correct? A. Yes, in levels 1 to 8? Q. Yes? A. Yes. Q. So what we are supposing might follow by way of the amenity impacts, Mr Crane, was in fact heard this morning by those residents complaining about what they've suffered to date as a result of short-term stayers, correct? A. Some were general suppositions and others were - I didn't really get the feeling that there was actual events, specific events, it was more of a concern and supposition. Q. … … COMMISSIONER Q. Mr Crane, it seems to me that the issue that I have to deal with is not necessarily whether the units in question are more suitable for residential use or serviced apartments, that decision was made and they're obviously suitable for serviced apartments because they were designed for that purpose, the real question is whether the potential mix of permanent residents and people using serviced apartments is appropriate. The DCPCs know you say you've seen no evidence to say that people living in serviced apartments are likely to create any more amenity impacts then those living in residential accommodation. Is that a fair description of what you've said? A. It is, Commissioner. I mean I myself live in a residential flat building where people have lived opposite us in a rental situation and we've had a concierge and that sort of thing and there couldn't be nicer tenants of that unit. … COMMISSIONER: . Q. Are they permanent, they're long-term tenants? A. They were just over 6 months and they were here as IT specialists working for Channel 7. Q. How would the management plan deal with short-term serviced apartments on a regular basis if say, had to catch the 6 o'clock plane to London? I mean are they banging down the corridors at 3 o'clock in the morning. I mean the concierge isn't going to probably be running around all night, won't be standing in the corridor while they leave. I mean it's these spontaneous acts of noise that are the problem. And that's one of the problems with management plans, is that you require a fair degree of oversight to make sure these things happen and simply by their nature they can't manage every potential impact or every potential noise impact. I suppose it goes down to the propensity of the people to make noises and it goes back again to that question of whether people who use serviced apartments are likely to create more amenity impacts or noise or disturbances than long term tenants. I've heard your evidence, it just seems to me that that's really the thrust of the issue that I have to decide. A. Commissioner, I've travelled a lot as I'm sure you have and I've been in many hotels where that sort of situation where somebody might get up early in the morning and leave but that hasn't disturbed me so it's on the individual. Q. Yes. I suppose the question is, if you're in a residential situation or a long-term residential situation and you are disturbed on a more regular basis by people who are short stay tenants, is that a reasonable situation? Should you create the situation that generates that potential conflict? That seems to me the question that I have to deal with. A. In my opinion, the sort of situation that you're referring to would be infrequent and possibly not as dramatic as being suggested. 11 The applicant's representative then questioned Mr Crane. Mr Crane gave the following evidence: Q. The noise getting from the corridor, to use the learned Commissioner's example, the person leaving for the airport early in the morning, the noise would have to be transferred from the corridor into a unit in order to disturb a person living in any of the units? A. Well I presume so. It would be a matter of the closer on the door or whether or not it would allow the door to slam versus somebody, you know, being less, I suppose, considerate. Q. But I understood what the Commissioner was saying was a concern, perhaps the person leaving the unit on a floor could disturb other people on the same floor if they were leaving early, for example, to get an early flight? A. Yeah, when background noise is very low, for example. Q. But the council has imposed conditions of noise conditions on the application and presumably the building was constructed to meet the needs of that type of use when it was originally built? A. I presume it was but I haven't done any inspection to be able to verify that. Q. So if there was a concern that noise might transfer from the hallway areas into units, that could be addressed by what, an acoustic report? A. If it was a concern an acoustic report would no doubt be of assistance to whether or not the standard of construction overcomes that issue or whether something else needs to be done to ensure that that occurs. Q. And the levels are also supervised 24 hours a day, 7 days a week by management? A. Well they are but I take the Commissioner's point, the concierge can't be on every floor supervising what happens. Q. And those spontaneous noise events could occur whether it be a person who had been residing there for 2 weeks or a person who had been residing there for 6 months? A. Yes, except for the frequency of it happening every 2 weeks versus somebody that was there, you know, for 6 months, might be more for the short stay.

12 During the course of closing submissions, the applicant's representative made the following observations: The court appointed expert is supportive of the application…. The applicant accepts that that's not the end of the issue and, for example, things like whether the mix is appropriate. What we know here is that presently there are very few owner occupiers. …. If the court was concerned that in that regard there were problems that could occur that would warrant this application not receiving the court's support, it would be in the applicant's respectful submission one which would and could only go to the matter of noise.

The interruption to the comfort and repose of people residing in each of the units within levels 1 to 8. The council has presented no evidence in these proceedings that there is any sort of problem in terms of the lack of sound attenuation measures to any of the units within the levels 1 to 8. There was no evidence this morning for example that residents were being disturbed by noise transmission through the doors currently installed within those levels of the building. If the council was intending to raise that as a serious issue, that is the impact of spontaneous noise upon the comfort and enjoyment of the residential use within those units, then one would expect that there be some acoustical evidence in support of that concern and there was not. There could be evidence quite easily provided if that had been a matter which had been raised by the council, because one can do noise measurements to see the level of transmission of noise from corridor areas to units within these levels of the building. It would be inappropriate in the applicant's respectful submission for this application not to be given the benefit or opportunity to address that matter if that was a matter which was of serious concern to the court in these proceedings. … The only question is that question of whether a mixed use is appropriate and acceptable in this building. The majority of the owners say yes it is an appropriate and acceptable use. There's no evidence from the council in these proceedings which would, in the applicant's respectful submission, give the court any real concern that the use would not be carried out in accordance with the plan of management, in accordance with the conditions of consent, in accordance with those standards of reasonable residential amenity.

13 The Commissioner decided to refuse consent (187 Kent Pty Limited v Council of the City of Sydney [2007] NSWLEC 88). In a section of his reasons delivered on 2 March 2007 headed "Impact on the amenity of future residents" the Commissioner summarised the evidence of Mr Crane ([20] to [22]) and the residents ([23] to [25]). In a section headed "Findings" the Commissioner framed the principal issue in the appeal as "the wider issue of compatibility between the residential and serviced apartment uses" (at [27]). His reasons continue as follows: Are the uses compatible? 28 Mr Crane finds the uses are compatible whereas the council comes to the opposite conclusion. The council officer's report (Tab 9, Exhibit 1) makes the following comments: There is a difference in the living and activity patterns and the behaviour of short and long-term residents, and the responsibility to resolve and control any conflict between the uses and occupants falls entirely upon the serviced apartment managing agency. Short term residents have no long-term interest in the maintenance of the amenity within the building or the surrounding area. While it appears that the dual use has been occurring on the site for a number of years, the reliance on the managing agency to maintain acceptable levels of residential amenity leaves open the potential for considerable adverse impact should changes to management occur in the future. 29 I accept the council's position on compatibility between residential accommodation and serviced apartments. While both are residential in nature, the fact that they are separately defined in LEP 2005 would suggest that they have different characteristics. I agree that there is likely to be a difference in behaviour, living and activity patterns between short-term and long-term occupants. A conclusion that short-term occupants are likely to have less concern about maintaining of the amenity of the building than long-term occupants is a finding that can be reasonably made, in my opinion. That is not to say that all short-term occupants are likely to have less concern about maintaining the amenity of the building than long-term occupants but only that there is likely to be a greater proportion who use the building differently through their behaviour and activities in and around the building. 30 The greater frequency of short-term occupants in and out of the building is potentially disruptive for long-term occupants, particularly at times such as early in the morning or late at night. These movements may not always create excessive noise but may occur at a time when long-term occupants reasonably expect not to be disturbed. These disturbances could relate to matters such as doors closing, noise from adjoining apartments and general conversation in common areas. While there may be measures, such as door closers to minimise potential noise impact, it would be unlikely that all sources of noise could be removed. 31 In general terms, long-term occupants would generally have a greater expectation and promote a more quiet and peaceful amenity than short-term occupants, as they would regard their apartment as a home compared to a temporary place to reside for short-term occupants. Long-term occupants are also likely to be less tolerant of disturbances and likely to be more concerned with activities that may potentially cause damage to the building, as they would have a greater feeling of ownership and ultimately be responsible through the Owners Corporation for repairs. While Mr Crane states that there is no evidence to support such a finding, I am satisfied that by simply adopting a common sense approach, the council's conclusion of incompatibility between the two uses can be supported. 32 For these reasons I find that there is an fundamental incompatibility between a mix of residential and serviced apartments that share the same floor and access points. 14 The Commissioner then assessed the management plan under the heading "Can any measures be taken to address amenity impacts?" He concluded, in part, as follows at [34]: On the first question, I am not satisfied that a management plan can deal with spontaneous events of noise that may disturb the existing residents. Again, the noise events may not necessarily relate to unacceptable behaviour but to the normal comings and goings of short-term tenants. The existence of full-time staff is a positive aspect of the proposed development and would be effective in managing most situations around the foyer area however it could not be reasonably expected that staff would be in a position to address spontaneous events of noise elsewhere in the building. 15 For this and other reasons the Commissioner was not satisfied that the management plan would provide an "effective means of addressing potential amenity impacts that may occur on the site" (at [36]). Accordingly, the Commissioner dismissed the appeal and refused the development application.

16 The applicant contended that it was denied procedural fairness by not being permitted to call evidence from an acoustical engineer in relation to "noise amenity impacts". It submitted that the following circumstances obliged the Commissioner to give the applicant that opportunity. (1) Issue 1 in the statement of issues referred to noise but the Commissioner in his exchange with Mr Crane first raised the concept of "spontaneous noise" caused by occupants of serviced apartments. This was a different concept from "noise", which took the applicant by surprise. (2) The Court appointed expert gave evidence favourable to the development. Hence, the applicant did not think there was a need to obtain any other evidence, which was reasonable. (3) The Council did not call any acoustical evidence. (4) "Spontaneous noise" was a technical issue specifically amenable to expert acoustical evidence. (5) Mr Crane had indicated that an acoustical report would be of assistance to the Court in relation to this issue. (6) The applicant observed in its submissions that if "spontaneous noise" were a serious issue of concern the applicant should be permitted to obtain an acoustical report. (7) The Commissioner remained silent when the applicant made this submission. (8) The issue of "spontaneous noise" was critical to the Commissioner's decision to refuse the application. 17 The relevant principles about procedural fairness are well known. However, the authorities emphasise that the application of these principles depends on the statute under which the power is being exercised and the circumstances of the exercise of the power in the particular case. Hence, it is clear that: · Whether the Commissioner's decision was sound or unsound is beside the point. The relevant question concerns the process, not the decision ( SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs and Anor (2006) 231 ALR 592 at [25]). · The right to be heard usually includes the "opportunity of ascertaining the relevant issues and to be informed of the nature and content of adverse material" ( Commissioner for the Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 590-591, referred to with approval in SZBEL at [32]). · Procedural fairness does not require the decision-maker to give parties a "running commentary upon what it thinks about the evidence that is given" ( SZBEL at [48] referring to the observations of Lord Diplock in F Hoffman-La Roche & Co AG v Secretary of State for Trade and Industry [1975] AC 295 at 369. See also Alphaone at 592).

18 In SZBEL, the statutory scheme and nature of the Tribunal's jurisdiction on review meant that the applicant was entitled to assume that the issues the delegate considered would be determinative of the appeal if the Tribunal had taken no steps to identify any other potentially determinative issue (at [35] and [44]). An appeal under s 97 of the EPA Act does not involve a review of the Council's decision in the sense referred to in SZBEL. The appeal under s 97 "shall be by way of rehearing, and fresh evidence or evidence in addition to, or in substitution for, the evidence given on the making of the decision may be given on the appeal" (s 39(3) of the LEC Act). The Court also "may inform itself on any matter in such manner as it thinks appropriate and as the proper consideration of the matters before the Court permits" (s 38(2) of the LEC Act). The Court has adopted procedures to ensure that issue is joined between the parties to any appeal under s 97. These procedures include identifying the issues in the appeal (Pt 13 r 14 of the Land and Environment Court Rules 1996). The parties are thus aware of the principal contested issues, which will then inform their forensic decisions and the obligations of a Commissioner to give reasons in determining the appeal (Segal & Anor v Waverley Council (2005) 64 NSWLR 177).

19 If the procedural fairness obligation in an appeal under s 97 of the EPA Act entitles a party to assume that the issues in the statement of issues will be dispositive of the appeal absent a Commissioner taking some step to identify any other such issue (by analogy to SZBEL), then the obligation was discharged in this case. This may be demonstrated by considering the eight circumstances relied on by the applicant (set out in paragraph 16 above).

20 First, the statement of issues clearly identified as an issue potential noise causing unacceptable impacts on the amenity of permanent residents. I do not accept the applicant's submission that the Commissioner's reference to "spontaneous noise" was a new issue. In the context of the application, it was obvious that the Council's issue 1 included (but was not limited to) the potential for "spontaneous noise". The applicant had ample opportunity to decide what evidence it wanted to call to deal with the noise issue as a whole. Accordingly, the applicant was given the "opportunity of ascertaining the relevant issues and …informed of the nature and content of adverse material" (Alphaone at 590-591).

21 Secondly, the fact that the Court appointed expert gave evidence in favour of the development does not indicate any denial of procedural fairness. Parties are responsible for their own forensic decisions. The parties in this matter determined that they were prepared to proceed to hearing on the basis of the expert evidence of Mr Crane. Mr Crane was known by the parties to be a town planner, not an acoustical expert. If either party wanted to rely on acoustical evidence, or thought it was necessary to place before the Commissioner, then they could have sought directions before the hearing to facilitate that object. Neither party did so. Both parties also proceeded to hearing knowing (or being deemed to know) that the Commissioner was not bound to reach the same conclusions on amenity impacts as Mr Crane. The parties were aware that the Commissioner had inspected the building, listened to various residents and had before him a bundle of documents, including written submissions and the reports to the Council. They knew that the Commissioner was entitled to take all of that information into account insofar as it was relevant to the issues in contest. Moreover, none of that information could have been new to the parties in the circumstances.

22 Thirdly, the Council was not bound to call acoustical evidence. The Council made its forensic decision, in common with the applicant. The absence of acoustical evidence called by the Council does not confer a right on the applicant's part to call such evidence or impose an obligation on the Commissioner to enable the applicant belatedly to do so. The absence of acoustical evidence from the Council does not inform the content of the procedural fairness obligation.

23 Fourthly, the notion of "spontaneous noise" being a technical issue specifically amenable to expert evidence does not indicate any contrary conclusion about the content of the procedural fairness obligation in this case. If the applicant's characterisation of the issue is accurate, the issue was not solely amenable to expert acoustical evidence. Lay evidence from residents of the building who had already experienced the impacts of short-term occupants was relevant. So too were the ordinary life experiences of Mr Crane and the Commissioner as disclosed in the exchanges referred to in paragraphs 10 and 11 above. In any event, I do not accept the applicant's characterisation of the determinative issue as "spontaneous noise" if that phrase means nothing more than the transmission of noise from within a unit or common area being used by a short-term occupant to a unit occupied by a permanent resident. The Council's issue 1 was not so limited, although sufficiently broad to encompass this class of amenity impact. The Commissioner's understanding of issue 1 was also not so limited. As the exchanges referred to above and the Commissioner's reasons for decision disclose, the Commissioner concluded that the development proposed incompatible uses (residential and serviced apartments). According to the Commissioner's reasons, the uses were incompatible for various reasons, not merely "spontaneous noise" (see [28] to [32] of the Commissioner's reasons).

24 The applicant's attempts in the questioning of Mr Crane, in its submissions to the Commissioner and in this appeal to reduce a complex of considerations to the idea of "spontaneous noise" (being transmission of noise from within a unit or common area being used by a short-term occupant to a unit occupied by a permanent resident) should be rejected. Contrary to the applicant's submissions, [28] to [32] of the Commissioner's reasons cannot be read as saying nothing more than [34]. Paragraph 34 is part of a process of reasoning dealing with the management plan and its capacity to ameliorate amenity impacts. The fact the Commissioner was not satisfied the management plan could effectively deal with "spontaneous noise" was because, in the Commissioner's view, this noise may be a product of nothing more than the "normal comings and goings of short-term occupants". The "normal comings and goings of short-term occupants", their nature and frequency, partly founded the Commissioner's ultimate conclusion that the two uses were incompatible. Considered in this context, it is clear that an acoustical engineer had no monopoly on the evidence potentially relevant to resolution of issue 1, including "spontaneous noise". Accordingly, the nature of the issue does not add weight to the applicant's claim for denial of procedural fairness.

25 Fifthly, and largely for the same reasons, the fact that Mr Crane acceded to the applicant's suggestion that an acoustical report would be of assistance cannot elevate the applicant's claim. Mr Crane was responding to what was put to him. His opinion did not bind the Commissioner. Many classes of information might be of assistance in determining an appeal under s 97 of the EPA Act. It is one thing for parties to seek to adduce evidence about matters that might assist a Commissioner. It is another to conclude that procedural fairness required the Commissioner to: - (i) refrain from determining the appeal unless and until he had informed the parties of the issues in the Council's statement of issues that, on reflection, were determinative, and (ii) allow the applicant, having been so informed, to adduce evidence after the principal hearing in an attempt to persuade the Commissioner to a contrary view. None of the authorities support that position, and for good reason.

26 Sixthly, and again for the same reasons, the observation in the applicant's submissions to the Commissioner that it would be inappropriate to determine the appeal absent an acoustical report if "spontaneous noise" were a serious concern cannot lead to the result for which the applicant contends. To adopt the respondent's submission, the Commissioner was not bound to accede to the applicant's invitation to disclose his thought processes on the known contested issues and, thereby, to enable the applicant to tailor its forensic decisions accordingly. The decisions in SZBEL and Alphaone establish that there was no such obligation. The applicant also did not make any application for an adjournment to obtain this evidence when it could have done so. The applicant disavowed any suggestion that the Commissioner would have been bound to accede to an application for an adjournment, had one been made. Yet this would be the logical consequence of accepting the applicant's submissions. If the Commissioner denied the applicant procedural fairness by determining the appeal without acceding to the applicant's request, equally the Commissioner would have denied the applicant procedural fairness by rejecting an application for an adjournment had one been made. This is because the content of the procedural fairness obligation proposed by the applicant is that the Commissioner was bound to allow the applicant to obtain and tender an acoustical report before determining the application. That may have been the case if the issue of impacts on amenity by way of noise had not been raised other than by the Commissioner in the exchange with Mr Crane. But I do not accept that the Commissioner was subject to such an obligation in the actual circumstances of the present case.

27 Seventhly, the silence of the Commissioner in the face of the applicant's submission is immaterial. The Commissioner had no obligation to make the applicant privy to his reasoning process. The resolution of the appeal on the basis of amenity impacts (including by way of noise) was "obviously …open on the known material" (SZBEL at [38] referring to Alphaone).

28 Eighthly, given my conclusions above, it does not matter whether "spontaneous noise" was critical to the Commissioner's determination.

29 In conclusion, I do not accept that the statutory scheme and/or the circumstances referred to by the applicant required the Commissioner to permit the applicant to "call further evidence in relation to the amenity impacts of the proposed development, namely, noise amenity impacts of the proposed development". The circumstances, taken as a whole, do not support a finding that the procedural fairness obligation extended so far. Nor do the authorities. The Commissioner had discretion whether or not to accede to the applicant's request and did not err in law by refusing to do so. While it does not dictate the outcome of this appeal, it is also appropriate to observe that the applicant's submission to the Commissioner about obtaining acoustical evidence was unhelpful. As noted, the applicant did not seek an adjournment to obtain further evidence when it could have done so. It did not suggest to the Commissioner that failing to accede to the applicant's invitation would be to deny the applicant procedural fairness, even though such a submission may have clarified the applicant's position and assisted the Commissioner in exercising his discretion on a fully informed basis. At least two decisions of this Court emphasise the obligation of legal representatives appearing before Commissioners to make their position clear and to provide all necessary assistance with respect to applicable legal principles (Campbelltown City Council v Toth (2004) 135 LGERA 336 at [39] and Eastlake Golf Club Ltd v Botany Bay City Council [2007] NSWLEC 236 at [32]).

30 The applicant's second ground is that there was no evidence for various findings of fact. The factual findings relied upon by the applicant are aspects of amenity for long-term occupants of the building if development consent were granted to the application. Where an appeal is limited to a question of law (as in s 56A of the LEC Act), a claim of "no evidence" will not succeed where there is "some basis for an inference" (Australian Broadcasting Tribunal v Bond & Ors (1990) 170 CLR 321 at 356). Further, in such an appeal, a finding "contrary to the overwhelming weight of the evidence" will be insufficient to vitiate the decision (Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 155-156. See also Hill v Green (1999) 48 NSWLR 161 at [70]-[72] and [86]). For these reasons, the applicant's references to the evidence in support of the proposed development were not on point in this appeal.

31 It was open to the Commissioner to make the impugned findings of fact. The Commissioner had seen the building, heard the evidence of the long-term residents and others, had available the written submissions, had the benefit of the report to the Council, had heard Mr Crane's evidence and was entitled to bring to bear on that material his own ordinary human experience. During the applicant's submissions it became apparent that the applicant's real complaint was not that there was no evidence before the Commissioner about the matters on which he made the impugned factual findings, but there was no evidence from an acoustical expert about those matters. As the Commissioner was not bound to allow the applicant to obtain a report from an acoustical engineer, the second ground of challenge should be rejected.

32 The third ground of challenge, with respect to insufficient reasons, should also be rejected. The Commissioner gave detailed reasons about the principal contested issues consistent with his obligation as explained in Segal (at [42]-[44] and [99]). During the applicant's submissions it became apparent that this ground was another variant of the first ground, in that the applicant contended the Commissioner was unable to give sufficient reasons absent a report on the issue of "spontaneous noise" from an acoustical engineer. Given my conclusions about the first ground, this ground must also fail. D. Conclusion 33 The applicant has not identified any error of law in the Commissioner's decision. Accordingly, the appeal is dismissed. ****************************

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.