Judgment
1On about 6 July 2011 Tim Shellshear & Associates Architects Pty Ltd made a development application to Warringah Council for a Medical Centre and Day Surgery Building at 10 -12 Dale Street, Brookvale. The application was made on behalf of Primary Health Care, which presently operates a medical centre within the Warringah Mall nearby, but whose lease within the mall is soon to expire.
2A development assessment report prepared by two officers of the council recommended that the application be approved. The recommendation was supported by the council. An independent hearing was convened by the Council's Development Assessment Panel, which also recommended that the application be approved. The application was considered by the Sydney East Regional Planning Panel exercising the powers of the council on 7 December 2011, which determined (by majority) to refuse the application for the following reasons:
(a) The use will be a prohibited development under the new
Warringah Local Environmental Plan ("LEP 2011"); and
(b) the use is inconsistent with the Desired Future Character
under the existing Warringah Local Environmental Plan ("LEP
2000").
The minority (Dr. John Roseth) voted to accept the recommendation of the assessment report to approve the application for the following reasons:
(a) The use is not antipathetic to the current character or
the Desired Future Character of the area; and
(b) he places major weight on the public benefit of a new
medical centre.
3Tim Shellshear & Associates appealed against the Panel's determination. AMP Capital Investors Limited is a part owner of the Warringah Mall. AMP was granted leave by the court to be joined as a party to the appeal. The appeal was heard by Commissioner Morris, who upheld the appeal and granted development consent. AMP now appeals against the decision of the commissioner under s 56A of the Land and Environment Act 1979, such an appeal being limited to a question of law.
4By its summons commencing the appeal AMP alleges numerous errors of law, the details of which are set out below. Moreover, in its lengthy and detailed written submissions and in its extensive oral submissions, AMP's counsel trawled through the evidence of it's expert witness and subjected the commissioner's judgment to a detailed scrutiny and analysis of almost every word and phrase, as if it had been written by a lawyer.
5I observe at the outset that it has been long settled that a "fine-tooth comb" approach should not be employed when examining decisions of technical commissioners for errors of law : Coles v Woollahra Municipal Council (1986) 59 LGRA 133 at 138, Randwick Municipal Council v Crawley (1986) 60 LGRA 277 at 283, Brimbella Pty Ltd v Mosman Municipal Council (1985) 79 LGERA 367 at 368. Moreover, it would be wrong for the court on an appeal such as this to examine the decision as if it were written by a lawyer : Brimbella at 368, per Priestley JA, (Kirby P and McHugh JA concurring), Fast Buck$ v Byron Shire Council (1999) 203 LGERA 94 at 98, per Handley JA. In North Sydney Council v Ligon 302 Pty Ltd (1985) 87 LGERA 435, Kirby P (at 442) warned against examining reasons in an overly pernickety way: see also Carstens v Pittwater Council [1999] NSWLEC 249. In Brimbella, Kirby P noted (at 368) that the parliament has specifically envisaged a tribunal which includes lay assessors and continued : "It would be quite wrong in my opinion, for this court to examine their decisions as if they were written by a lawyer".
6Moreover, any error must be more than an error at some stage of the decision making process. It must be an error that affects the ultimate decision : Minister for Immigration and Multicultural Affairs and Thiyagarajah [2000] HCA 9, (2000) 1999 CLR 343. In another way, an error will only vitiate a decision if it materially affects the decision : Guideline Drafting and Design Pty Ltd v Marrickville Municipal Council (1988) 64 LGRA 275. The court has re-stated these principles many times, and it is necessary that they be kept in mind when considering the various grounds of appeal now raised by AMP.
7There are further principles to be kept in mind. AMP alleges that the commissioner erred in law in that the whole of her decision is manifestly unreasonable or irrational. Moreover, many of the separate grounds relied upon by AMP are said to describe findings and conclusions made by the commissioner that are either illogical, irrational or manifestly unreasonable. I note, however, that many of the findings and conclusions that are attacked are clearly findings and conclusions of fact. There is no error of law in simply making a wrong finding of fact : Waterford v The Commonwealth (1987) 163 CLR 54 at 77, City of Enfield v Development Assessment Commission [2000] HCA 5 (2000) 199 CLR 135 [44], [59], Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21 197 CLR 611 at 654 [138]. In Reg v District Court; Ex parte White (1966) 116 CLR 644, Menzies J said (at 654) :
"Even if the reasoning whereby the court reached its conclusion of fact were demonstrably unsound, this would not amount to an error of law on the face of the record. To establish some faulty (eg illogical) inference of fact would not disclose an error law".
8The test for illogicality or irrationality was authoritively restated by Crennan and Bell JJ in the High Court in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16, 240 CLR 611 :
"[13] ... But the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable simply because one conclusion has been preferred to another possible conclusion".
...
[135] ... whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn.
9Importantly, Crennan and Bell JJ had earlier said at [96] :
"Nothing said in these reasons sanctions the deployment of 'illogicality' or 'irrationality' to achieve what is sometimes called merits review.
10Although SZMDS arose in a federal context its principles have been followed and applied in this State in a non-federal context : D'Amore v Independent Commission Against Corruption [2012] NSWSC 473, per McClellan CJ at CL.
11The test for manifest unreasonableness is stringent : Weal v Bathurst City Council [2000] NSWCA 88 at [27], per Mason P. As Mason P also observed, the decision must amount to an abuse of power : Attorney General (NSW) v Quin (1990) 170 CLR 1 at 36; or be so devoid of plausible justification that no reasonable person could have taken that course : Minister for Immigration and Ethnics Affairs v Teoh (1995) 183 CLR 273 at 290. In Wednesbury, it was held that the decision must amount to "something so absurd that no sensible person could ever dream that it lay within the powers of the authority" : Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1998] 1 KB 223 at 229, per Lord Greene MR.
12Before turning to the commissioner's decision and to the grounds of appeal now advanced by AMP, it is relevant to note that when the development application was made in July 2011 the applicable planning instrument was the Warringah Local Environmental Plan 2000, under which the subject land was in Locality G10. On 9 December, however, Warringah Local Environmental Plan 2011 commenced under which the subject land was in Zone IN1 General Industrial, so that when the notice of determination of the development application was issued on 13 December 2011 the latter instrument applied. Clause 1.8A of the latter instrument, however, contains a savings provision as follows:
"1.8A - Savings provisions relating to development applications.
If a development application has been made before the commencement of this Plan in relation to which this Plan applies and the application has not been finally determined before that commencement, the application must be determined as if this Plan had not commenced".
The Commissioner's Judgment:
13The various errors of law which AMP says are found throughout the commissioner's judgment are best understood by an overview of that judgment.
The commissioner commences by describing the development application at [1], and then sets out at [2] AMP's contentions in the appeal:
- "the development being prohibited under Warringah LEP 2011, and whether it is consistent with the [IN1] General Industrial Zone under that Plan",
- "whether the development complies with the Desired Future Character of the locality pursuant to Warringah LEP 2000",
- "whether the site is suitable for the development",
- "whether the proposal is consistent with the State Government's strategic planning policies and is in the public interest".
14In paragraphs [4] - [9] the commissioner describes the background to the proposal and the proposed development itself. At [9] she notes that the medical centre will employ approximately 40 staff on a full-time basis during Monday to Friday, with specialist doctors visiting on a regular basis seven days a week.
15At paragraph [10] to [14] the commissioner describes the site and the kinds of development presently existing in the locality.
16At [15] to [26] the commissioner describes the planning controls under firstly, Warringah LEP 2000 and secondly, under Warringah LEP 2011. (There is no suggestion by AMP that the commissioner misstates these controls).
17At [27] the commissioner re-states the issues which she had earlier noted at [2].
18At [28] to [53] the commissioner summarises in a general way the expert evidence and contentions of Mr N Ingham for AMP and of Mr H M Sanders for the applicant.
19At [54] the commissioner re-states, for the third time, the issues for determination, but does so in a slightly different way :
"the weight to be given to the provisions of LEP 2011; whether the development is consistent with the DFC "[Desired Future Character]" and all other relevant provisions of LEP 2000; whether the site is suitable for the proposed development and whether the grant of consent would be in the public interest".
I infer that the changed way in which the Commissioner stated the issue is a consequence of the way in which the parties presented their arguments.
20At [55] to [72] the commissioner sets out her conclusions and findings, resulting in the upholding of the appeal and the granting of consent to the development.
The Grounds of Appeal
21AMP by its summons relies upon 11 grounds which it says demonstrates errors of law by the commissioner. I now consider each ground in turn.
22Ground 1: a general allegation that the commissioner "erred in law in that the whole of her decision is manifestly unreasonable or irrational supported by the grounds set in paragraphs 2 to 11". Nothing more need be said about this ground, which is dependent upon AMP succeeding on the following grounds.
23Ground 2: the commissioner's finding at [14] is an error of law in that she wrongly characterised certain existing industrial land uses in the locality as uses for non-industrial purposes.
24A fair reading of paragraph [14], however, shows that in her description of the various land uses in the locality, the commissioner does not ascribe a non-industrial use to existing industrial uses. The opening words of paragraph [14] are : "In addition to a number of light industrial uses, the site is in proximity to a range of premises used for non-industrial purposes, including ...". At [64] the commissioner acknowledges that some of these uses, "whilst not ancillary to industrial or warehouse uses, are uses that service the locality and would not be inconsistent with the area remaining an industrial and employment centre" having previously noted at [63] that an employment centre was a permissible use.
25In any event, by recording the existing land uses in the locality, the commissioner is simply recording findings of fact. Even if it can be said that the findings of fact are in error, this does not raise a question of law : Waterford v The Commonwealth, City of Enfield v Development Assessment Commission, Minister for Immigration and Multicultural Affairs v Eshetu, noted at [7] above. Moreover, even if it be an error of law, the error must be more than an error at some stage of the decision making process - it must be an error that materially affects the decision : Minister for Immigration and Multicultural Affairs v Thiyaparajah, Guidelines Drafting and Design Pty Ltd v Marrickville Municipal Council, noted at [6] above. I thus reject this ground of appeal.
26Ground 3: the commissioner's finding at [20] (to be read with [15]) is an error of law, in finding at [66] that the development was consistent with the Locality Statement even though it was development that was not for industries and warehouses and ancillary service uses.
27This somewhat circumlocuted ground requires an understanding of the relevant planning controls.
28The commissioner correctly states, at [15], that at the time the application was lodged the site was within the G10 Brookvale Industrial West locality as defined under Warringah LEP 2000. That instrument divides the council's area into various localities. An appendix to the LEP sets out a series of individual locality statement for each locality. The role of locality statements is described in cl 12 of the Plan:
" 12 What matters are considered before consent is granted?
(1) Before granting consent for development the consent authority
must be satisfied that the development is consistent with:
(a) any relevant general principles of development control in Part 4, and
(b) any relevant State environment planning policy described in Schedule 5 (State policies).
(2) Before granting consent for development, the consent authority
must be satisfied that the development will comply with:
(a) the relevant requirements made by Parts 2 and 3, and
(b) development standards for the development set out in
the Locality Statement for the locality in which the
development will be carried out.
(3) In addition, before granting consent for development classified
as:
(a) Category One, the consent authority must consider the
desired future character described in the relevant
Locality Statement, or
(b) Category Two or Three, the consent authority must be
satisfied that the development is consistent with the
desired future character described in the relevant
Locality Statement,
but nothing in a description of desired future character creates a
prohibition on the carrying out of development.
Note. Before granting consent for development the consent authority must consider the matters set out under section 79C of the Act.
To assist with understanding: Category One development is development that is generally consistent with the desired future character of the locality. Category Two development is development that may be consistent with the desired future character of the locality, and Category Three development is development that is generally inconsistent with the desired future character of the locality".
29The note at the end of cl 12 does not form part of the plan, as appears from cl 6 (2) :
"Notes, copies of charts and diagrams inserted in this plan, and the lists of its contents are explanatory and do not form part of this local environmental plan. They are provided to assist understanding. However, the Dictionary and Appendices are part of this plan".
30The Locality Statement for Locality G10 Brookvale Industrial West states :
"LOCALITY G10 BROOKVALE INDUSTRIAL WEST
DESIRED FUTURE CHARACTER
The Brookvale Industrial West locality will remain an industrial and employment centre incorporating industries, warehouses and ancillary service uses.
New development or significant redevelopment will be designed to incorporate landscaping to soften the visual impact of industrial buildings and their associated parking and other paved areas as viewed from the street.
At the interface of the locality with adjoining and adjacent residential areas, buildings will be sited and designed and the use of land managed to minimise interference with the amenity of such residential areas.
Allotments are to be consolidated where necessary to ensure the development of one allotment will not render an adjoining allotment unsuitable for development.
LAND USE
Category One
Development for the purpose of the following:
- The summons is dismissed.
- The question of costs is reserved.
- The six volumes of Court Books may be returned.