AUSTRALIAN NATIVE LANDSCAPES PTY LIMITED v BAULKHAM HILLS SHIRE COUNCIL

It is submitted that if the draftsman had intended that the test in assessing an application under rural 1(c) should be "development", it would have said so specifically, "activity" having much more affiliation with the word "use" than the word "development".

The Council submits that the Assessor was correct in his opinion that a consideration of the aims and objectives of LEP 1991 as a whole requires a proponent to demonstrate compatibility with the rural/residential character of

the 1(c) zone. Council contends that the words "development" and "activities" are used interchangeably in the LEP and no special significance attaches to either word.

Furthermore, Council submits that the Assessor correctly dealt with the matter on the basis that the proposed land use, namely landscape supply establishment, was permissible in the zone, with his task being to examine the particulars and the details of the proposal.

The Assessor found that the development presented "at a scale and character which is distinctly commercial" and, as such, does not achieve "a reasonable level of compatibility with the surrounding rural or residential activities". (See generally his judgment pp.18-23, especially p19).

The reasoning of the Assessor should not be examined or tested by comparison with what might be written by professional lawyers, although failure to give reasons will constitute an error of law where the decision is an essential part of reasoning towards the final conclusion. Coles v Woollahra Municipal Council (1986) 59 LGRA 133 , Brimbella Pty Ltd v Mosman Municipal Council 79 LGERA 368 , Botany City Council v Remath Investments No.6 Pty Ltd (10974 of 1995, Talbot J, p.7, 12 August 1996).

In any case, I believe that it was open to the Assessor to make these findings. I agree with the submissions put by the Council that the use of the word 'activities' has no special significance and does not preclude 'development' from having to be compatible with the rural/residential character of the area.

Accordingly I can find no error of law in respect of this ground of appeal.

Sydney Regional Environmental Plan No.20 ("SREP 20") applies to 11 Local Government areas through which the Hawkesbury-Nepean River flows, and is primarily concerned with potential environmental impacts associated with the river and its immediate environs.

The applicant submits that, as the subject site is "nowhere near" the Hawkesbury River or the river valley, clause 1(h) of Schedule 1 which sets out an aim "to protect and enhance the scenic quality of the river and the river valley" has no application or relevance to the subject site.

Hence, the applicant contends that the Learned Assessor erred in applying clause 10 of Schedule 1 to the site, as the specific aims of that clause relate back to the general aims in clause 1(h).

"The specific aims of this plan relating to scenic quality are - (a) to require new development to be carried out in sympathy with the scenic amenity of its setting, particularly in relation to siting, setback, orientation, size, bulk, scale, scenery and the use of unobtrusive, non-reflective materials; (b) to retain existing vegetation especially along river banks, slopes visible from the river and its banks, and along the skyline; (c) to encourage new planting of trees, particularly local native trees; and (d) to encourage public works to be carried out in sympathy with scenic amenity and with minimum impact".

Clause 3 of SREP 20 identifies land within the local government area of the Shire of Baulkham Hills as land to which that SREP applies. Hence SREP 20 applies to the subject site, regardless of its proximity to the river or river valley, or otherwise, and the Assessor was therefore entitled to have regard to the aims expressed in clause 10 of Schedule 1.

The amount of weight the Assessor attached to this consideration is a question of fact which cannot be the subject of challenge. Randwick Municipal Council v Manousaki (1988) 66 LGRA 330.

In any event, the Assessor was obliged to consider the visual impact of the proposed development by reason of the provisions of LEP 1991 and s90(1)(c) EPAA, even without observing the provisions of SREP 20.

I can find no error of law in respect of this ground of appeal.

Ground 3 - Planning Studies and Development Control Plans

In his judgment (at pages 6 and 7) the Assessor deals with four nominated planning studies and, as the applicant points out, it is clear from the later parts of his judgment that they significantly influenced his decision.

The applicant submits that these were not documents to which consideration was required to be given pursuant to s 90, nor did they amount to policy of the Council, so as to give them some relevance.

The applicant further submits that as the Assessor failed to give "reasons" as to the basis upon which he took the documents into account, he has erred in law. Housing Commission of NSW v Tatmar Pastoral Co Pty Ltd (1983) 3 NSWLR 378.

The Council submits that the Assessor was entitled to have regard to these documents, pursuant to EPAA s 90(1)(q) and LECA s 38(2), and it is clear from reading his judgment that he regarded them as relevant on the question of the likely scenic outcome. The relevant sections are set out below:

EPAA s 90(1)(q): "(1) In determining a development application, a consent authority shall take into consideration such of the following matters as are of relevance to the development the subject of that development application: … (q) the circumstances of the case".

"(2) In proceedings in Class 1, 2 or 3 of the Court's jurisdiction, the Court is not bound by the rules of evidence but 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."

I accept the Council's submissions on this point. Indeed, the Court of Appeal decision in North Sydney Council v Ligon 302 Pty Ltd (1996) 93 LGERA 23 infers that without considering such relevant documents the Assessor would not have given "proper, genuine and realistic consideration" to the application (see Cole JA at 28).

In the end, the Assessor came to the conclusion that the proposed landscape treatment was "quite out of character with the existing development in this rural/residential section". (See his judgment at pp20-21).

In terms of the detail to which an Assessor is expected to go in his judgment, Counsel for the Council correctly submits that there is a difference between exposing one's reasoning and expounding reasons in such a way that they can be closely analysed on appeal. Housing Commission of NSW v Tatmar Pastoral Co Pty Ltd (1983) 3 NSWLR 378.

"the extent to which a court must go in giving reasons is incapable of precise definition. A court must not nullify rights of appeal by giving no or nominal reasons, but there is no duty to expound reasons so as to facilitate appeals. This applies particularly to the situation where a judge has to decide between conflicting witnesses, including experts. The choice between conflicting experts may have to be a matter of judgment, not of detailed reasoning".

I can find no error of law in the Assessor's consideration of the relevant studies.

The basic submission made by the applicant in respect of these four grounds, which were argued together, is that the Assessor conducted the hearing in such a way that the applicant was never given an opportunity to know, or respond to, the Assessor's concerns in respect of landscaping or its adequacy.

The applicant contends that these issues were not identified in the Council's statement of issues, nor in the draft conditions it served on the applicant.

On the other hand, the Council submits that landscaping or its adequacy was encompassed within issues 1, 3 and 5 of the statement of issues it prepared. Those issues were stated as follows:

"(1) Whether the proposed development is out of character with the surrounding and development, including the adjoining school. … (3) Whether the proposed development will impact on the amenity of the area by way of noise, fumes, dust, wind-borne particles, visual impact and traffic. … (5) Whether the proposed development meets the objectives of the Rural (1)(c) zone under the Baulkham Hills Local Environment Plan within which it is situate".

The Council contends that while no expert reports that exclusively dealt with the issue were prepared, or served, at least one expert report specifically referred to landscaping, and relevant components of the issue were the subject of examination and cross-examination of witnesses throughout the hearing.

Certainly the landscape treatment was crucial to the application which was being considered by the Assessor, and the applicant placed significant emphasis upon the landscaping layout in the design which accompanied the development proposal. It should have been clear to the applicant that landscaping was an issue that the Assessor was obliged to consider.

A close examination of the transcript does not support the assertion by the applicant that the hearing was conducted by the Assessor in such a way that the applicant was given neither the opportunity to know, nor the opportunity to respond to, the Assessor's concerns. Mahon v Air New Zealand [1984] 1 AC 808.

Contrary to the applicant's assertion that the subject development application is primarily an application for consent for a land use on a property where a building already stood, it clearly goes beyond that, as the plan with the application shows substantial structures and intended building work.

Again I can find no error of law in the way the Assessor dealt with these aspects of the matter.

(In the formal "grounds" document filed in Court the eighth ground of appeal is numbered "9".)

The Assessor dealt with concerns raised by representatives of the nearby school community, and the applicant contends that as they were unsupported by "hard evidence" they are irrelevant to the Assessor's function. Jarasius v Forestry Commission of NSW (1988) 71 LGRA 79.

In fact there was evidence before the Assessor that the construction of the proposal embodied in the subject development application would reduce available street parking in the vicinity of the adjacent Dural school.

Objectors gave evidence of their concerns as to safety issues involved in the use of Old Northern Road. There is no reason in law why such evidence should not be taken, and the weight attributed to it is a question of fact for the Assessor.

Again, I can find no error of law on the Assessor's part.

As the above analysis discloses I can find no errors of law on the part of the learned Assessor in the way he dealt with this matter.

Nor can I find any evidence to support the submission that the Assessor denied the applicant procedural fairness in the conduct of the hearing.

I therefore dismiss the appeal and in accordance with the agreement stated by both sides on the question of costs, I order the applicant to pay the respondent's costs.

The exhibits may be returned, as may the applicant's copy of the Transcript of the hearing before the Assessor.

I HEREBY CERTIFY THAT THIS AND THE PRECEDING 17 PAGES ARE A TRUE AND ACCURATE RECORD OF THE REASONS FOR JUDGMENT HEREIN OF THE HONOURABLE JUSTICE T.W. SHEAHAN.

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.