Abrams v The Council of the City of Sydney

Land and Environment Court (NSW)|2018-05-07|Before: Robson J

The development application

On 18 May 2016, Gary Abrams ('appellant') lodged Development Application D/2016/631 ('DA') for the demolition of an existing commercial building and the construction of a new four-storey residential flat building containing 19 residential apartments ('Proposed Development'), at 9 Power Avenue, Alexandria ('site').
On 15 August 2016, The Council of the City of Sydney ('Council') refused the DA. The appellant appealed the refusal to this Court where it was heard by Commissioner Brown. Those Class 1 proceedings were heard on 15 and 16 May and 9 and 14 June 2017. On 18 July 2017, the Court delivered judgment dismissing the appeal in Abrams v The Council of the City of Sydney [2017] NSWLEC 1371 ('primary judgment').

Appeal on a question of law

On 14 August 2017, the appellant commenced this appeal by way of summons pursuant to s 56A of the Land and Environment Court Act 1979 (NSW) ('LEC Act'). That section provides: 56A Class 1, 2, 3 and 8 proceedings - appeals to the Court against decisions of Commissioners (1) A party to proceedings in Class 1, 2, 3 or 8 of the Court's jurisdiction may appeal to the Court against an order or a decision of the Court on a question of law, being an order or a decision made by a Commissioner or Commissioners. (2) On the hearing of an appeal under subsection (1), the Court shall: (a) remit the matter to the Commissioner or Commissioners for determination by the Commissioner or Commissioners in accordance with the decision of the Court, or (b) make such other order in relation to the appeal as seems fit. (3) Notwithstanding subsection (1), an appeal shall not lie to the Court under that subsection in respect of a question of law that has been referred to, and determined by, a Judge pursuant to section 36.
The summons identifies two purported errors of law in the primary judgment: (1) The Commissioner erred in law at paragraph 37 of the judgment, and consequently throughout the whole of the judgment, by concluding that the previous development consents approved on the subject site (D/2013/383 and D/2015/351) were not a relevant consideration for determination of the development application. Those previous development consents were a mandatory consideration under s 39(4) of the Land and Environment Court Act. (2) The Commissioner erred in law when assessing the applicant's variation request pertaining to the floor space ratio development standard in the Sydney Local Environmental Plan 2012 (SLEP) by failing to have regard to the previous development consents approved on the subject site (D/2013/383 and D/2015/351). Those previous development consents were a mandatory consideration under s 39(4) of the Land and Environment Court Act, and were also a relevant 'circumstance of the case' and a relevant 'environmental planning ground' under clauses 4.6(3)(a) and (b) of the SLEP.
Although not precisely coterminous, both grounds of review self-evidently raise similar issues and concern whether the Commissioner fell into legal error by not giving proper consideration to prior development consents on the site.

The prior consents relied upon

The appellant relied upon two prior consents ('prior consents') given by Council on the site: 1. D/2013/383, granted 21 October 2013, for deferred commencement for the partial demolition of the existing two-storey commercial building and conversion to a residential flat building consisting of 12 x 1 bedroom units and 2 x 2 bedroom units in addition to ground floor parking. The deferred commencement required the owner to enter into a Voluntary Planning Agreement ('VPA'). The approved Floor Space Ratio ('FSR') for the development was 2.4:1; and 2. D/2015/351, granted 2 November 2015, for deferred commencement for the demolition of the existing building and construction of a new four-storey building containing 14 residential apartments and 3 ground floor parking spaces. The deferred commencement required the owner to enter into a VPA. The approved FSR was 2.4:1.
The crux of the appellant's contentions is that the Commissioner was required, and failed, to have regard to the prior consents when determining whether to grant a variation request pursuant to cl 4.6 of the Sydney Local Environmental Plan 2012 ('SLEP').
Clause 4.6 relevantly provides: 4.6 Exceptions to development standards (1) The objectives of this clause are as follows: (a) to provide an appropriate degree of flexibility in applying certain development standards to particular development, (b) to achieve better outcomes for and from development by allowing flexibility in particular circumstances. (2) Development consent may, subject to this clause, be granted for development even though the development would contravene a development standard imposed by this or any other environmental planning instrument. However, this clause does not apply to a development standard that is expressly excluded from the operation of this clause. (3) Development consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating: (a) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and (b) that there are sufficient environmental planning grounds to justify contravening the development standard. (4) Development consent must not be granted for development that contravenes a development standard unless: (a) the consent authority is satisfied that: (i) the applicant's written request has adequately addressed the matters required to be demonstrated by subclause (3), and (ii) the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, and (b) the concurrence of the Secretary has been obtained. (5) In deciding whether to grant concurrence, the Secretary must consider: (a) whether contravention of the development standard raises any matter of significance for State or regional environmental planning, and (b) the public benefit of maintaining the development standard, and (c) any other matters required to be taken into consideration by the Secretary before granting concurrence. …
The relevant development standard in the primary judgment was the FSR standard. Clause 4.4(1) of the SLEP provides four objectives of that development standard: 4.4 Floor space ratio (1) The objectives of this clause are as follows: (a) to provide sufficient floor space to meet anticipated development needs for the foreseeable future, (b) to regulate the density of development, built form and land use intensity and to control the generation of vehicle and pedestrian traffic, (c) to provide for an intensity of development that is commensurate with the capacity of existing and planned infrastructure, (d) to ensure that new development reflects the desired character of the locality in which it is located and minimises adverse impacts on the amenity of that locality.
Section 39(4) of the LEC Act, pursuant to which the appellant contends the Commissioner was also required to take the previous consents into account, provides: In making its decision in respect of an appeal, the Court shall have regard to this or any other relevant Act, any instrument made under any such Act, the circumstances of the case and the public interest.

The Commissioner's decision

The Commissioner heard argument on the appeal against the DA's refusal on 15 and 16 May and 9 and 14 June 2017. In the primary judgment at [2]-[3], he summarised Council's reasons for refusing the DA as follows: [2] The council maintains that the proposed development should be refused for the following reasons: • excessive floor space ratio (FSR), including inconsistency with the desired future character and streetscape of the locality, • unacceptable amenity impacts on future residents, particularly in relation to cross ventilation, privacy, solar access, common open space, apartment size, inadequacy of adaptable apartments, private open space and separation from adjoining dwellings, and • insufficient engagement with the public domain. [3] Following the provision of amended plans and further assessment by the experts in the proceedings, a number of the council contentions were satisfactorily addressed. The remaining contentions relate to the FSR variation, the street setback, inadequacy of common space and private open space and inadequacy of adaptable apartments.
Because of the breach of the FSR standard, a necessary precondition of a merits consideration of the Proposed Development was satisfaction of the matters contained in cl 4.6. The Commissioner summarised the written cl 4.6 variation request at [17], and noted how the Proposed Development was said to satisfy the objectives of the standard (a mandatory consideration pursuant to cl 4.6(4)(a)(ii)) as follows: [17] The written request was prepared by the applicant's town planner, Mr Anthony Betros. Pursuant to cl 4.6(3), the written request states that a variation to the FSR standard can be supported because the standard is unreasonable or unnecessary in the circumstances of the case because the proposal complies with the objectives of the FSR standard. Specifically: • the proposed additional floor space is considered to provide for a desirable level of housing stock that involves a mix of residential typologies to meet the anticipated development needs for the foreseeable future (objective (a)), • the proposed development has been designed to provide 19 Class 1 bicycle storage lockers instead of the existing approved ground floor car parking. The proposed reduction in vehicles generated by the approved development (D/2015/351) is considered to result in a better planning outcome given the sites proximity to the Green Square train station, access to frequent public transport routes (i.e. buses) and the surrounding facilities and services (objective (b)), • there is sufficient infrastructure in place to support the proposed development intensity. Further to this, the proposed development is accompanied by a VPA which provides a monetary contribution towards community infrastructure within the Green Square area. It is therefore argued that the VPA will contribute to the capacity of the planned infrastructure for the area and on this grounds, the intensity of the development should be supported (objective (c)), and • the proposed development is consistent with the desired future character of the area, including the Alexandria Park locality and wider Green Square Area. This is demonstrated on the proposed elevations which illustrates that the proposed street facade is similar to the recently established buildings to the south and west (objective (d)).
The primary judgment contains a description of the prior consents at [4]. At [19], the Commissioner summarised submissions made by the appellant in which he argued that compliance with the development standards was unreasonable or unnecessary in the circumstances of the case: [19] In addition, there are circumstances specific to the site and the proposed development that support the position that compliance with the development standard is unreasonable or unnecessary. These are: • the site has an existing approval for a 4 storey residential flat building with ground floor car parking and an approved FSR of 2.4:1, • the proposed development predominantly retains the existing building envelope of the approval; however the internal redesign results in an increase in the FSR by 0.44:1. This has been achieved through the removal of the ground floor car parking and the construction of a basement level to house the proposed bicycle storage lockers, waste storage area and associated building services, and • the proposed development is considered to maintain the same level of external amenity impacts whilst resulting in improved internal amenity impacts for the future occupants. This has been achieved through a redesign of the internal layout which increases the provision of private open space (71% approved, 100% proposed), solar access (43% approved, 73.7% proposed) and cross ventilation (36% approved, 57.9% proposed) for the proposed residential units.
At [32]-[33], the Commissioner referred to the FSR objectives provided in cl 4.4(1) of the SLEP: [32] Mr McKeown addresses objectives (c) and (d) in his evidence. Objective (c) seeks to provide for an intensity of development that is commensurate with the capacity of existing and planned infrastructure. While Mr McKeown stated that the additional people to be housed in the additional floor area created by the FSR variation would place additional burden on the council in relation to existing and planned infrastructure. I understand that the council (like all councils) addresses additional population through s 94 contributions where they calculate the contribution by multiplying the net population increase by the contribution rate per additional dwelling, resident, worker or overnight visitor, depending on the application. Mr McKeown's concerns relates to the additional cost of providing infrastructure in Green Square, beyond the contributions available under s 94, as set out in the council document Development Guidelines - Providing Community Infrastructure in Green Square, (December 2012). While additional contributions are able to be collected through cl. 6.14 for the additional 0.5:1of FSR, Mr McKeown states that no mechanism is available to collect additional contributions for the additional population generated by the increase to the FSR beyond 1.5:1 in the Green Square precinct. [33] Even if Mr McKeown is correct, I do not accept that the applicant should be penalised for legitimately using the provisions of cl 4.6 to seek an increase in the amount of floor space. The fact that council has not provided any mechanism in Green Square to accommodate this should not be a reason to find that the proposal is not consistent with FSR objective (c). I note that the council took no issue with the matters [raised] by Mr McKeown in the previous approvals granted on the site (emphasis added).
At [35]-[37], the Commissioner went on to consider the Proposed Development against the controls provided for in the SLEP, which he considered represented the desired character of the locality and therefore were relevant to consider under cl 4.6(4)(a)(ii): [35] In my view, the desired future character of the locality must be represented by the council's planning controls for the site and nearby. The principal controls for the site are a 15m maximum height control (cl 4.3, LEP 2012)), a 1.5:1 FSR (cl 4.4 and cl 6.14, LEP 2012)), a maximum 4 storeys (cl 4.2.1, DCP 2012), 10% of the site area is to be deep soil (cl 4.2.3.6), 25% of the site area is to be common open space and with no specific setbacks shown on the Building setback and alignment map, the setback and alignment must be consistent with adjoining buildings (cl 4.2.2, DCP 2012). Identical requirements exist for nearby properties except along McEvoy Street where the height is 22m. [36] If the proposed development is compared to these principal controls, I am satisfied that it can be reasonably argued that the proposal does not reflect the desired future character of the locality. While the maximum height and the 4 storey control are satisfied, the application fails to provide adequate deep soil, common open space and ground level setbacks. I accept that these are matters that contribute to the desired future character of the locality. [37] While Mr McKeown may be correct in that the previous approval provided a better streetscape appearance due to the different architectural treatment and materials on the upper level, no evidence was produced that suggested that this type of treatment is required by either LEP 2012 or DCP 2012. As correctly stated by Mr McKeown, this application must be treated as a new application and considered on its merits rather than a comparison with any previous approval (emphasis added).
After further consideration of the objectives of the FSR development standard and the Proposed Development, the Commissioner concluded at [43]-[44]: Is compliance with the development standard is unreasonable or unnecessary? [43] I do not accept that the applicant has justified the contravention of the FSR development standard by demonstrating that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case. [44] While it is submitted that the FSR development standard has been abandoned by Mr Betros and Mr McKeown, my understanding of the evidence did not support such a conclusion. Mr McKeown stated that the FSR may have been abandoned by the reporting council on the previous approvals but that this was not his position and he would have dealt with the variation to the FSR standard differently. His evidence clearly focussed on the allowable 1.5:1 FSR available through LEP 2012.
Accordingly, at [55], the Commissioner dismissed the appeal.

Appellant's submissions

The appellant submits that a failure to take a mandatory consideration into account amounts to an error of law: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40 at [39].
Pursuant to cl 4.6(3)(a) of the SLEP, the appellant submits that a relevant mandatory consideration for the Commissioner in the primary judgment was whether the FSR development standard sought to be varied in the cl 4.6 variation request was "unreasonable or unnecessary" in the circumstances of the case.
Relying on Wehbe v Pittwater Council [2007] NSWLEC 827; (2007) 156 LGERA 446 ('Wehbe') for the proposition that one of the ways that development standards can be shown to be unreasonable or unnecessary is if they have been effectively abandoned, the appellant submits that the cl 4.6 variation request required consideration by the Commissioner of the prior consents in order to determine whether the FSR standard had been abandoned.
In response to Council's argument that the prior consents are not relevant to this question because they cannot be built on the site if a new development application is approved, the appellant submits this is incorrect because one can have as many development consents on a single site as the consent authority sees fit to approve.
In the circumstances, the appellant submits that the Commissioner's allusions to the prior consents constitute "mere advertence" in the sense considered in Weal v Bathurst City Council [2000] NSWCA 88; (2000) 111 LGERA 181 ('Weal'). In the appellant's submission, the Commissioner was obliged to, and did not, give the prior consents proper consideration.
The appellant also submits that the Commissioner was required to have regard to the previous consents by operation of s 39(4) of the LEC Act, relying on Lloyd J's finding in MLC Properties v Camden Council [1997] NSWLEC 130; (1997) 96 LGERA 52 ('MLC Properties') that a development consent is an "instrument".
Moreover, the appellant submits that the merit matters the Commissioner dealt with in dismissing the appeal were reflected in large part in the prior consents. By failing to have regard to the extent to which the prior consents demonstrate a position taken by Council on the desired future character of the locality and the consequential impacts on the streetscape that were deemed acceptable, the appellant submits that the Commissioner failed to have regard to a mandatory consideration pursuant to s 79C of the Environmental Planning and Assessment Act 1979 (NSW) ('EPA Act'), as it then was. The same section is now encapsulated in s 4.15 of the EPA Act.
The appellant submits that this case can be distinguished from Tuite v Wingecarribee Shire Council (No 2) [2008] NSWLEC 321 ('Tuite') and Kinloch v Newcastle City Council [2016] NSWLEC 109 ('Kinloch') in which it was held that development applications are not to be judged against development consents which have not commenced or have commenced only in a minor way. The appellant says that these decisions were predicated upon the circumstance that the state of the environment had not been altered, and differ from the present case in that the state of the environment is not the consideration mandated by cl 4.6.
In the event that Tuite and Kinloch cannot be distinguished from the present case, the appellant submits that they were incorrectly decided and should not be followed.

Council's submissions

Council accepts that development consents are "instruments" and are captured in that sense by the operation of s 39(4) of the LEC Act. However, Council submits that s 39(4) does not operate to elevate the prior consents to matters that should be given central relevance when considering whether an application should be granted consent under s 4.15 of the EPA Act.
Council submits that s 39(4) of the LEC Act says nothing as to what the consent authority is to do with previous development consents that have been made a relevant consideration by operation of that section. In Council's submission, s 39(4) does not require a decision-maker to place weight on prior consents in reaching a decision.
Council submits that, contrary to the appellant's claim, the prior consents do not mandate that a different approach must be taken to consideration of the mandatory precondition of cl 4.6 of the SLEP. Specifically, Council says the Commissioner needed to be satisfied that the development met the requirements of cl 4.6(4)(a)(ii). In Council's submission, this state of satisfaction is a prerequisite to the granting of consent. If the Commissioner was not so satisfied, Council says nothing in the prior consents could have enabled him to approve the development.
Council submits that the proper consideration is by reference to the environment which existed at the time of the decision (Tuite), and further that an administrative decision-maker is under no obligation to follow a previous administrative decision-maker: Segal v Waverley Council (2005) 64 NSWLR 177; [2005] NSWCA 310 ('Segal') at [56]. Accordingly, Council submits that the Commissioner was entitled to give different weighting to the FSR development standard than Council had in approving the prior consents.
In any event, Council submits that the Commissioner did what was required by specifically considering the prior consents and mentioning them at [4], [19], [20], [33], [37] and [44] of the primary judgment. Council submits that he did not ignore them, but rather gave them little weight, as he was entitled to do.
Council submits that the prior consents could have only minimal relevance to the question of whether the FSR standard had been abandoned in the sense considered in Wehbe. This is because the prior consents relate to the subject site and would not be part of the future character of the locality if the Proposed Development were approved and built.
Moreover, Council submits that the appellant's submission that the Commissioner did not consider the prior consents as being relevant to the cl 4.6 variation request sits uncomfortably with his finding at [33] that the appellant should not be punished for attempting to rely on cl 4.6 to increase the FSR of the development given that the prior consents were not so punished.
Council concedes that [44] of the primary judgment does not constitute a finding in respect of whether the FSR development standard had been abandoned, but submits that this does not matter given the way in which he assessed the application and having regard to the fact that he found objective (d) of cl 4.4 was not satisfied.

Consideration

In MLC Properties at 58-9, Lloyd J said: A notice of determination of a development application is clearly an "instrument" as that word is ordinarily understood. It is a formal document having the capacity to affect legal rights and obligations. An instrument is not ordinarily limited to a document of a legislative character. It is at least arguable that the definition in s 3 is an inclusive one. The ordinary meaning of "instrument" may be incorporated into the definition by the words "includes an instrument … ". In Sutherland Shire Council v Moir (1981) 49 LGRA 105, Kearney J held that a deposited plan was an "instrument" within the meaning of s 339(2) of the Local Government Act 1919 (NSW). There is, moreover, a suggestion by Cole J in Sloane v McDonald Industries (Sales) Pty Ltd (1989) 17 NSWLR 86 at 101 that a form prescribed by a regulation is an instrument within the meaning of s 3. Although there is some force in Mr Craig's submission, it is to be noted that the Interpretation Act defines "make", in relation to an instrument, as including "issue" and "grant" (s 21). I am, accordingly, not persuaded that Wechsler was wrongly decided. In other words, I am not prepared to depart from the findings of Talbot J in Wechsler, namely, that a notice of determination issued in the prescribed form under s 92(1) of the Environmental Planning and Assessment Act is an instrument as defined in s 3 of the Interpretation Act. Accordingly, I should apply s 32(2) of the Interpretation Act to the development consent here.
I accept his Honour's reasoning and find in accordance with the agreed position of the parties that a development consent is an "instrument".
Section 39(4) of the LEC Act requires the Court on appeal to have regard to "any instrument" made under a relevant Act. It is clear that "any instrument" does not mean "every instrument". Such a reading of s 39(4) would give the section an absurdly wide operation. As Mr Pickles, senior counsel for Council, observed, there are many instruments made under Acts relevant to the assessment of development applications which would clearly have minimal or no relevance to the exercise of the Court's powers on appeal.
I find therefore that s 39(4) only applies to relevant instruments made under a relevant Act. In the current circumstances, the prior consents pass this hurdle because they are relevant to the question of whether the FSR development standard had been "abandoned".
Existing development consents either on the subject land or in the locality may be instructive for the purpose of an "abandonment" argument in Class 1 appeals in this Court, or in informing the desired character or future streetscape of a locality. However, whilst it is not necessary to decide in this case, I do not consider that a Commissioner of the Court would necessarily fall into legal error by failing to consider a development consent or other instrument that was only relevant by reason of s 39(4) of the LEC Act, especially in circumstances where the instrument was not explicitly brought to the Commissioner's attention, which is not the case in the present proceedings.
I accept Council's submission that the appellant has failed to elucidate with precision what the Commissioner was required to do with the prior consents to the extent that they are accepted by Council to be mandatory considerations under s 39(4). The appellant submits that the Commissioner was required to give them "proper and genuine" consideration.
It certainly cannot be said that the Commissioner failed to have regard to the prior consents entirely. In addition to detailing the previous consents at [4] of the primary judgment, as Council submits, he also made reference to them at [17], [19], [20], [22], [24], [33], [37], and [44]. Of course, the number of references to the prior consents is no answer to the appellant's submission that the Commissioner failed to do anything relevant with them, but it is instructive to note that he did not ignore them and continued to make reference to them throughout the judgment.
The essential question raised by the appeal is whether the Commissioner's comments at [37] and [44] of the primary judgment amount to a refusal to consider the prior consents in the context of whether the FSR development standard had been abandoned, and if so, whether this is an error of law which vitiates his decision.
In Wehbe at [47], Preston CJ of LEC said: A fourth way [to make out a claim for exemption under what was then SEPP1, similar in terms to cl 4.6] is to establish that the development standard has been virtually abandoned or destroyed by the Council's own actions in granting consents departing from the standard and hence compliance with the standard is unnecessary and unreasonable: North Shore Gas Co. Pty Ltd v North Sydney Municipal Council, unreported, LEC No 10185 of 1986, 15 September 1986, Stein J at pp 11-12; Legal and General Life of Australia Ltd v North Sydney Municipal Council (1989) 68 LGRA 192 at 202; City West Housing Pty Ltd v Sydney City Council (1999) 110 LGERA 262 at 282 [69]-283 [70].
This principle in Wehbe must be read in conjunction with the comments of Tobias JA, with whom Beazley JA (as her Honour then was) and Basten JA agreed, in Segal. That case concerned whether a Commissioner was obliged to follow the decision of another Commissioner or to give reasons for not so following. At [95]-[96], his Honour said: [95] Furthermore, I am in no way convinced that in the context of adversarial proceedings in the Land and Environment Court, there is any place for the so-called principle of consistency in administrative decision-making. As I have observed in [51] above, that concept is more appropriately applied to true administrative decision-making at the level of executive or local government. It has no application to adversarial proceedings where the merits of any particular application depend upon the facts and circumstances of the case and the substantive issues joined between the parties. [96] My only qualification to the foregoing, at least in the context of environmental planning, is that consistency in the application of planning principles is, clearly, a desirable objective. This has been recognised by the Commissioners of the Land and Environment Court (see [16] above) and is reflected in the planning principles articulated by Commissioner Watts in [81] of his judgment (see [15] above). In the present case, the planning principles in question were common to both appeals and were duly taken into consideration by each Commissioner. But it does not follow that a consistent application of those principles results in the same outcome. That would depend upon the particular facts of each case as well as upon the evidence called by the parties to support the outcome, based on those principles, for which each contends. This is particularly so when dealing with heritage issues such as the acceptability or otherwise of the impact of a particular proposal upon the heritage significance of a heritage item which clearly involves a value judgment of a particularly subjective kind. Commissioner Watts made that judgment in the present case and his reasons for coming to that conclusion were more than adequately expressed.
The principle of abandonment in Wehbe when understood in conjunction with the decision in Segal makes it clear that what is required for a finding of abandonment is more than the decision of a previous administrative decision-maker. A pattern of abandonment such that the development standard can no longer be said to represent the existing and/or desired character of the locality would mean that the development standard had been "virtually abandoned or destroyed" in the sense considered by Wehbe, but not all non-applications will meet this description. It will be a matter of fact and degree in the circumstances of each case.
Moreover, it is difficult to see how a decision not to allow individual requests pursuant to cl 4.6 would affect a future decision-maker considering a cl 4.6 request in respect of a different application. Clause 4.6 requires the consent authority to reach a state of satisfaction; first, that the appellant has provided a written statement adequately addressing the questions of whether the development standard is unreasonable or unnecessary in the circumstances of the case, and whether there are sufficient environmental planning grounds to justify contravening the development standard; and secondly, that the non-compliance is in the public interest because the objectives of the standard are met.
The fact that these states of satisfaction have been met on one occasion is no indication that they will be met on a future occasion in respect of a different application, and the fact that the standard has not been applied previously does not alter the fact that cl 4.6 must be applied by the consent authority according to its terms in respect of each application.
In any event, although I do not consider it determinative of this appeal, I accept the position of Council and find that the prior consents were only of minimal assistance in determining whether the development standard had been abandoned or destroyed. One reason for this is that if the development application before the Commissioner in the primary judgment were approved and acted upon, the prior consents logically would not be built. In that sense, not only would the development standard not have been destroyed or abandoned, but its previous non-application by Council would have no effect on the locality because the prior consents would never be built.
The Commissioner's comment at [37] that "this application must be treated as a new application and considered on its merits rather than a comparison with any previous approval" is not a rejection of the relevance of the prior consents to the cl 4.6 objection, but rather a correct statement with respect to the task before him. Even if the Commissioner concluded that the prior consents meant that the development standard had been abandoned, the effect of that finding would not have been to invite a comparison between the prior consents and the Proposed Development. Furthermore, as I have found at [46] above, the terms of cl 4.6 must be satisfied in respect of each application.
At [43] and [44] of the primary judgment, the Commissioner dealt with the question of whether it had been demonstrated that compliance with the development standard was unreasonable or unnecessary in the circumstances of the case.
It is conceded by Council that [44] is not a finding in respect of whether the development standard was abandoned on previous occasions, but rather a disputation with the submission that the development standard had been abandoned in the context of the present case.
Whilst this does appear to be the better reading of the paragraph in question, I consider that, by implication, the Commissioner's summary of Council's expert Mr McKeown's evidence that "the FSR may have been abandoned by the reporting council on the previous approvals but that this was not his position and he would have dealt with the variation to the FSR standard differently" is telling. Implicit in this approach is a finding by the Commissioner that the development standard had not been abandoned in a Wehbe sense, because such abandonment could not have only been in respect of the prior consents.
I consider the Commissioner's implicit finding reasonable for two reasons. First, what was presented to the Commissioner was not a pattern of non-application of the standard that would be more comfortably classed as "abandonment" in the Wehbe sense, but rather two consents which had the benefit of successful cl 4.6 variation requests. In those circumstances, the Commissioner was not required to consider the reasons for the non-application in the prior consents, but rather to ask whether cl 4.6 was satisfied in the present case. Secondly, the Commissioner had reason to assume that there was at least some prospect the non-application of the development standard in the prior consents would not become part of the environment of the locality because he had before him a development application on the same site which was inconsistent with the prior consents being acted upon.
It may be that it would have been desirable for the Commissioner to make an express finding that he did not consider the prior consents to be of assistance in determining whether the FSR development standard had been abandoned. However, notwithstanding that the primary judgment does not include such an express finding, I consider that such a finding is strongly implied particularly by [44] of the primary judgment and moreover that the effect of the Commissioner's approach viewed as a whole is that the FSR development standard was not abandoned. I consider that he was entitled to take that view on the evidence.
Some comfort in this finding can be found in the principle that the Court should not employ a "fine appellate tooth-comb" in considering whether there has been an error of law: Minister of Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 ('Wu Shan Liang') at 291, applied in the context of s 56A by Preston J in Bellenger v Randwick City Council [2017] NSWLEC 1 at [3].
Although my finding that the Commissioner did not fail to deal with the prior consents is dispositive of the appeal, I find that even if the Commissioner's approach to cl 4.6(4)(a)(i) was affected by error, that error did not vitiate the decision. This is because for a cl 4.6 request to be made out, both cl 4.6(4)(a)(i) and (ii) must be satisfied. For the reasons that follow, I find that the Commissioner properly considered cl 4.6(4)(ii), reached a finding adverse to the application, and that his reasoning cannot be said to be infected with the errors contended by the appellant.
The Commissioner's broad approach to the cl 4.6 objection is outlined at [26] of the primary judgment: Clause 4.6 of LEP 2012 imposes four preconditions on the Court in exercising the power to grant consent to the proposed development. The first precondition (and not necessarily in the order in cl 4.6) requires the Court to be satisfied that the proposed development will be consistent with the objectives of the zone (cl 4.6(4)(a)(ii)). The second precondition requires the Court to be satisfied that the proposed development will be consistent with the objectives of the standard in question (cl 4.6(4)(a)(ii)). The third precondition requires the Court to consider a written request that demonstrates that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case and with the Court finding that the matters required to be demonstrated have been adequately addressed (cl 4.6(3)(a) and cl 4.6(4)(a)(i)). The fourth precondition requires the Court to consider a written request that demonstrates that there are sufficient environmental planning grounds to justify contravening the development standard and with the Court finding that the matters required to be demonstrated have been adequately addressed (cl 4.6(3)(b) and cl 4.6(4)(a)(i)).
The Commissioner then proceeded to consider each of the objectives of the FSR development standard in turn. Importantly, and as noted above, the Commissioner stated at [33] that the "fact that council has not provided any mechanism in Green Square to accommodate this should not be a reason to find that the proposal is not consistent with FSR objective (c). I note that the council took no issue with the matters [raised] by Mr McKeown in the previous approvals granted on the site" (emphasis added).
It is clear from this comment that the prior consents continued to be at the forefront of the Commissioner's mind as he considered the objectives of the FSR standard. In oral submissions, Ms Duggan, senior counsel for the appellant, characterised this finding at [33] as not being "a consideration of the approvals, merely an observation that other officers did not consider the infrastructure to be inadequate."
I do not find that submission persuasive given that the reasoning of other officers was not canvassed by the Commissioner but rather inferred from the fact that they upheld cl 4.6 objections in the prior consents. Moreover, I am conscious that the Court should not use the "fine appellate tooth-comb" warned of in Wu Shan Liang. On a plain reading of [33], I am satisfied that the Commissioner appropriately took the prior consents into account when considering objective (c) of the FSR development standard.
At [36] of the primary judgment, the Commissioner went on to say in the context of assessing objective (d) of the FSR development standard: If the proposed development is compared to these principal controls, I am satisfied that it can be reasonably argued that the proposal does not reflect the desired future character of the locality. While the maximum height and the 4 storey control are satisfied, the application fails to provide adequate deep soil, common open space and ground level setbacks. I accept that these are matters that contribute to the desired future character of the locality.
It was argued by the appellant that it was not open to Council to rely upon these findings to argue that any mistake in relation to the Commissioner's consideration of objective (d) is not vitiating because it is prefaced by the caveat "if the proposed development is compared to these principal controls".
However, I do not find that compelling as the "principal controls" referred to by the Commissioner at [36] of the primary judgment are identified in [35] of the primary judgment. Relevantly, it is not just the FSR development standard to which the Commissioner refers. Had that been the case, it could be said that the Commissioner's reasoning was circular.
However, that is not what the Commissioner found. He considered development standards that applied to the zone indicated the locality's "desired future character" and were therefore relevant to his consideration of objective (d) in the FSR development standard. He therefore considered the standards in respect of the maximum height, the maximum number of storeys, the requirement of 10% deep soil, the requirement that 25% of the site area be common open space, and the requirement that the setback and alignment be consistent with adjoining buildings. The Commissioner's finding in respect of objective (d) of the FSR standard is directed not at the breach of the FSR standard, but rather the failure of the Proposed Development to meet the standards in respect of deep soil, common open space, and ground level setbacks.
A question of some nicety is raised by cl 4.6(4)(a)(ii) in respect of a development standard that is said to be abandoned in a Wehbe sense. There was no requirement to abide by an equivalent of cl 4.6(4)(a)(ii) under the State Environmental Planning Policy No 1 - Development Standards ('SEPP1') regime, which is helpfully illustrated by Preston J at [37]-[41] of Wehbe. This means that even if the development standard is found to have been abandoned, that will not be determinative of a cl 4.6 application in itself because the consent authority must still find that the proposal meets the objectives of the standard under cl 4.6(4)(a)(ii).
In Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90 ('Four2Five'), Pain J commented on the operation of cl 4.6(a)(ii) in the context of a s56A appeal at [33]-[34]: [33] Turning to ground 2, the Appellant essentially argues that the Commissioner should have allowed the written request responding to cl 4.6(3)(a) considerations of "unreasonable or unnecessary in the circumstances of the case" to be answered by finding that the development is in the public interest as satisfied by subclause (4)(a)(ii). The Commissioner found at [62] and [64] the obligation imposed on the written report by subclause (3)(a) had to be demonstrated separately from the matters addressing subclause (4)(a)(ii). This submission overlooks the terms of cl 4.6 which mandates that the Commissioner cannot grant development consent for development that contravenes a development standard unless satisfied of matters in both subclauses (4)(a)(i) and (ii). The Commissioner has a wide discretion under the terms of subclause (4)(a)(i) in considering whether the written report prepared on behalf of the Appellant satisfied subclause (3). [34] Contrary to the Appellant's submission, and accepting the Council's submission, there is every reason to construe cl 4.6(4)(a)(i) as if it has more work to do than subclause (4)(a)(ii), not least because "and" is between the two subclauses. "And" is generally read conjunctively unless there is a clear mistake in the drafting (per Pearce and Geddes at [2.29]). The use of "and" suggests the requirements in subclauses (4)(a)(i) and (ii) are separate requirements. As the Council submitted, summarised above in par 21, the Appellant's construction would leave no work for subclause (4)(a)(ii) to do.
If the Commissioner had been satisfied that the planning control had been abandoned in a Wehbe sense, that finding would principally go to whether the development standard was "unreasonable or unnecessary" in the circumstances of the case, and therefore affect his state of satisfaction in cl 4.6(a)(i), not cl 4.6(a)(ii). Of course, to the extent to which an abandonment of the standard goes to the "desired character" of the locality, abandonment of the FSR control could be instructive (though perhaps only to the development standard said to be abandoned), but the Commissioner did not make his finding in relation to objective (d) on this basis, but rather the standards in respect of deep soil, common open space, and ground level setbacks. This course was open to him.
Because he was not satisfied that the objectives of the zone were met, I find that the Commissioner did not reach the state of satisfaction required by cl 4.6(4)(a)(ii). Therefore a mandatory precondition to his power to grant the development was not met.
Therefore it was open for the Commissioner to find that the appellant had not demonstrated that compliance with the standard was unreasonable or unnecessary in the circumstances of the case as he did at [43].
I add that I do not consider that in approaching the cl 4.6 request in this way the Commissioner displayed any failure to give reasons, as was contended by the appellant in oral submissions. In Segal, Tobias JA said at [99]: Accordingly, I would summarise my views on this aspect of the matter as follows: (a) Although a Commissioner of the Land and Environment Court is obliged to consider the principal contested issues before him or her, each of those issues is the genus of which the various arguments in favour or against the resolution of the issue in a particular way are species. (b) It is unnecessary for a Commissioner or a judge of the Court to consider each of the species provided he or she has considered the genus. It is that which must be addressed in the Commissioner's or judge's reasons. Those reasons must be adequate to explain, by way of findings and reference to the evidence supporting the findings, the reasoning process adopted by the Commissioner or judge and which has led to his or her conclusion. ...
Undoubtedly the cl 4.6 request was a principal contested issue between the parties, but I do not consider that the abandonment argument could be considered a principal contested issue in its own right. Rather, I find that it was a "species" of the cl 4.6 request, and I find that the Commissioner gave ample reasons as to why he did not accept that the cl 4.6 request should be upheld.

Conclusion

For the foregoing reasons, I conclude that the Commissioner did not make any legal error in respect of his consideration of cl 4.6(4)(a)(i), and further, that if contrary to my finding the Commissioner's consideration of cl 4.6(4)(a)(i) did demonstrate legal error, it follows from my finding in respect of cl 4.6(4)(a)(ii), that the error did not vitiate his decision.
Therefore, I have determined that the appeal should be dismissed.
The ordinary course in s 56A appeals is for costs to follow the event, as per r 42.1 and Sch 1 of the Uniform Civil Procedure Rules 2005 (NSW). I do not consider there are any special circumstances that would warrant a departure from the usual order for costs and I am satisfied that it is appropriate in the present case.

Orders

The Court orders that: 1. The appeal is dismissed. 2. The appellant is to pay the respondent's costs of the appeal.

Amendments 12 June 2018 - Typographical error corrected in par [48]. 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: 12 June 2018

Local Government Act 1919(NSW)

(2000) 111 LGERA 181

(2007) 156 LGERA 446

(1999) 110 LGERA 262

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