Bankstown City Council v Mohamad El Dana

Bankstown Local Environmental Plan 2001, cll 2, 11(3), 44, 45 LEGISLATION CITED: Civil Procedure Act 2005, ss 56(1), 61(1) Environmental Planning and Assessment Act 1979, s 79C(1) Land and Environment Court Act 1979, s 56A

Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 Clifford v Wyong Shire Council (1996) 89 LGERA 240 Coulton v Holcombe (1986) 162 CLR 1 Currey v Sutherland Shire Council (1998) 100 LGERA 365 Design Power Assocs Pty Ltd v Willoughby City Council [2005] NSWLEC 470, (2005) 148 LGERA 233 Franklins Ltd v Penrith City Council and Campbell's Cash and Carry Pty Ltd [1999] NSWCA 134 Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd (1983) 3 NSWLR 378 CASES CITED: Manly Council v Hortis [2001] NSWCA 81, (2001) 113 LGERA 321 Mohamad El Dana v Bankstown City Council [2008] NSWLEC 1484 North Sydney Council v Ligon 302 Pty Ltd (1995) 87 LGERA 435 Page v Parkes Shire Council (1991) 72 LGRA 97 Randall Pty Ltd v Willoughby City Council [2005] NSWCA 205, (2005) 144 LGERA 119 Rowe v Australian United Steam Navigation Company Ltd (1909) 9 CLR 1 Shellharbour City Council v Rigby [2006] NSWCA 308, (2006) 150 LGERA 11 University of Wollongong v Metwally [No 2] (1985) 59 ALJR 481

APPELLANT: Mr M Craig QC SOLICITORS Marsdens Law Group LEGAL REPRESENTATIVES: RESPONDENT: Mr J Ayling SC SOLICITORS HWL Ebsworth

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

JUDGMENT 1 HIS HONOUR: This is an appeal under s 56A of the Land and Environment Court Act 1979 by Bankstown City Council against a decision of the former Senior Commissioner upholding an appeal by Mohamad El Dana (the proponent) against refusal by the council of a development application to build an Islamic School for 1200 pupils at 98 Johnston Road, Bass Hill: Mohamad El Dana v Bankstown City Council [2008] NSWLEC 1484. An appeal under s 56A is limited to questions of law. GROUNDS OF APPEAL

The Commissioner erred in failing to take into consideration cl 11(3) of Bankstown Local Environmental Plan 2001 ( LEP ) as required by s 79C(1)(a)(i) of the Environmental Planning and Assessment Act 1979 ( EPA Act ).

The Commissioner erred in failing to have regard to the general objectives of the LEP (set out in cl 2 of the LEP ).

The Commissioner erred in failing to have regard to the objectives of the zone in the LEP in which the development the subject of these proceedings is proposed to be carried out (set out in cl 44 of the LEP).

The Commissioner erred in granting consent to a development application for development to be carried out on land to which the LEP applies, without having had regard to the general objectives of the LEP and the objectives of the zone in which the development is proposed to be carried out (set out in cll 2 and 44 of the LEP).

The Commissioner erred in failing to take into consideration cl 45 of the LEP as required by s 79C(1)(a)(i) of the EPA Act .

The Commissioner erred in granting consent to a development application for development to be carried out on land zoned 2(a)-Residential A, without considering whether the buildings of the development the subject of these proceedings are compatible with the character and amenity of existing and likely future buildings on adjoining land in terms of:

(a) its scale, bulk, design, height, siting and landscaping, and

The Commissioner erred in granting consent to a development application for development to be carried out on land zoned 2(a)-Residential A, without having concluded, prior to such grant of consent, that the buildings of the development the subject of these proceedings are compatible with the character and amenity of existing and likely future buildings on adjoining land in terms of:

(a) its scale, bulk, design, height, siting and landscaping, and

3 Grounds 6 and 7 set out the matters referred to in cl 45 of the LEP (referred to in ground 5) but with different emphases ("without considering" and "without having concluded"). 4 Cutting through the repetition in the grounds of appeal, the alleged errors of law are that, contrary to s 79C(1)(a)(i) of the EPA Act, there was, first, failure to have regard to the LEP cl 2 objectives as required by cl 11(3)(a); secondly, failure to have regard to the LEP cl 44 zone objectives as required by cl 11(3)(b); thirdly, failure to consider the matters in LEP cl 45; fourthly, failure to reach a conclusion as to the matters in LEP cl 45. SECTION 79C(1)(a)(i) AND THE LEP

(1) Matters for consideration - general In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application:

(i) any environmental planning instrument". 6 Clause 11(3)(a) and (b) of the LEP provides:

"(3) The consent authority may grant consent to development only if it has had regard to:

(b) the objectives of the zone in which it is proposed to be carried out".

7 Clause 2 of the LEP sets out the general objectives of the plan and cl 44(1) sets out the objectives of the relevant residential Zone 2(a). They provide: " 2 Objectives of this plan The objectives of this plan are:

(a) to regulate development in accordance with the following principles:

(ii) remnant bushland, natural watercourses and threatened species should be protected, and

(iii) intensive trip generating activities should be concentrated in locations most accessible to rail transport, and

(iv) new development should not diminish the role of the Bankstown central business district (CBD) as a sub-regional centre, and

(v) new development in or affecting residential areas should be compatible with the prevailing suburban character and amenity of the locality of the development site, and

(b) to provide a framework within which the Council may prepare development control plans to make more detailed provisions.

(a) to complement the single dwelling suburban character of the residential areas of Bankstown City, and

(b) to enable dual occupancy, rowhouse and villa development that is otherwise consistent with the objectives of the zone, and

(c) to ensure that sites are of sufficient size to provide for buildings, vehicular and pedestrian access, landscaping and retention of natural topographical features, and

(d) to ensure that development is of a height and scale which complements existing buildings and streetscapes (noting that 2 storey dwellings may occur throughout residential areas), and

(e) to allow for some non-residential use that would not adversely affect the living environment or amenity of the area, and

(f) to encourage energy efficiency and resource conservation measures in the design, construction and occupation of residential buildings, and other buildings permitted in this zone, and

(g) to ensure adequate public and private open space is available to residents, and

(1) Consent may be granted for a building on land within Zone 2 (a) or 2 (b) only if it would be compatible with the character and amenity of existing and likely future buildings on adjoining land in terms of:

(a) its scale, bulk, design, height, siting and landscaping, and

9 The Senior Commissioner did not expressly refer to cl 11(3) (which requires consideration of cll 2 and 44), cl 2 or the LEP objectives therein, and cl 45 or the matters therein. His judgment set out the cl 44 objectives of the relevant residential 2(a) Zone at [7] and referred to them at [30]. 10 The council submits that the absence of any reference to the cl 2 objectives and cl 45 matters, combined with express reference to the cl 44 zone objectives, supports a finding by necessary inference that, contrary to the requirements of s 79C(1)(a)(i) of the EPA Act, no regard was had to the cl 2 objectives and the cl 45 matters. In support of the inference the council cites Manly Council v Hortis [2001] NSWCA 81, (2001) 113 LGERA 321. That was a judicial review case challenging the validity of council development consent. The relevant local environment plan (in cl 17) contained a precondition to development consent. It was held at [32]:

"Having regard to the nature of the pre-condition to consent imposed by cl 17, the absence of any reference to that issue in the council's minutes or that material before it when it made its decision and the omission to call evidence that cl 17 was considered give rise to the inference that the council did not consider the clause unless there is other evidence which supports the opposite conclusion."

11 In further support of the inference, the council draws an analogy with the principle that where evidence is important or critical and is not referred to, an appellate court may infer that the trial judge overlooked or failed to give consideration to it: Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 at 443 (CA); North Sydney Council v Ligon 302 Pty Ltd (1995) 87 LGERA 435 at 442, 443 (CA); Shellharbour City Council v Rigby [2006] NSWCA 308, (2006) 150 LGERA 11 at [313].

12 The proponent submits that the Senior Commissioner did what he was required to do by considering and determining every contention that the council put; that in so doing he necessarily dealt with the tasks required under LEP cll 11(3) (which directed attention to cll 2 and 44) and 45 to the extent that they were contentious; and that it is not open to the council to now assert on appeal that he should have done more.

COUNCIL'S CONTENTIONS BEFORE THE SENIOR COMMISSIONER

13 In order to address the submissions, it is necessary to scrutinise the council's conduct of its case before the Senior Commissioner. The way in which the council put its case in opening before the Senior Commissioner was by making certain merit contentions, which it asserted would afford reasons to dismiss the appeal.

14 In accordance with the practice of this Court, the council had filed a statement of facts and contentions prior to the hearing. Apart from it being tendered at the outset of the hearing, the document was not referred to again at the hearing. No doubt that was because, shortly afterwards, the council, in its opening address to the Commissioner, precisely reformulated its contentions as merit contentions, as follows:

(a) the traffic generated by the educational establishment will adversely affect the amenity of the area and the surrounding road system.

(b) the design of the internal car park is unacceptable in terms of vehicular and pedestrian safety and potential for conflicts.

(c) the location of the carpark itself, that is, the open carpark is unacceptable and should be located at the front of the site so it's visible from the street.

(d) the length of the driveway itself on the south-eastern side is unacceptable.

the noise generated from the school and the childcare centre will have an unacceptable impact on the adjoining residential development, and, in particular, the development to the north-west in Sevenoaks Crescent and Farrell Road.

the proposal fails to preserve remnant trees or retain existing significant trees on the site or recognise the biodiversity corridor adopted by Council.

(a) the proposal is not compatible with the prevailing character of existing and likely future development on adjoining land and nearby land in terms of scale, bulk, height, length and the need for the noise barrier on the north-western side.

(b) the internal amenity of the secondary school itself in terms of the design and the double-loaded corridors that are provided are not acceptable.

the site is too small for the scale and intensity of this development.

the information submitted with the application is insufficient to enable a proper assessment of the social impacts of the proposal.

(a) there are excessive impervious areas created due to the poor design

the overwhelming nature of objections." 15 The council lost on all its contentions. The Senior Commissioner had evidence before him in respect of each contention. He addressed that evidence and reached conclusions unfavourable to the council in relation to all the contentions: as to traffic and parking see judgment at [16] to [19]; as to noise at [20] to [23]; as to ecology at [24] to [26]; as to character, scale and urban design at [27] to [35]; as to the size of the site at [36] to [38]; as to social impact at [39] to [43]; as to impervious areas at [34] and [44]; and as to the public interest at [11] to [15].

16 In formulating the contentions in opening the council's case to the Senior Commissioner, the council advocate did not mention the LEP. It was not until closing submissions before the Senior Commissioner that he briefly referred to some LEP provisions including cll 2, 11, 44(1)(a), (c), (d), (e) and (f) and 45(1)(a), (c) and (d), saying that he only referred to "noise" in cl 45(1)(d). He said that that was all that was relevant in the LEP. He made no submission concerning the application of those provisions. The proponent's counsel later responded that compliance with cl 45(1) had been established for the reasons he had already outlined (ie in relation to council's merit contentions).

17 The reformulated merit contentions in the council's opening to the Senior Commissioner were not specifically related by the council to any LEP provision. Even if they were to be viewed as implicitly related in some way, it was also implicit that if they were to be determined unfavourably to the council, that would be dispositive of any issue under the LEP.

18 In my view, the council's course of conduct clearly indicated that, if it lost on its merit contentions, that would be dispositive of any issue under any relevant LEP provisions. 19 Insofar as the council's filed statement of facts and contentions is of any relevance - given that it was superseded in the council's opening to the Commissioner - it reinforces that impression. This document adopted more numerous and generally different headings than those adopted in the contentions put in the council's opening. The headings in the document were: Traffic/Parking/Access, Environment/ESD, Urban Design/ Character/Scale, Suitability of the Site, Acoustic Impact, Residential Amenity, Social Impact, Impervious Areas, Cut and Fill, Inadequate Information, Public Interest and Conditions of Consent. Under each heading, the document set out (a) merit contentions as to why the proposed development should be refused, (b) particulars of each merit contention, and (c) generally, a proposition to the effect that "having regard to" the particulars the proposed development was inconsistent with the provision of the LEP. Under the following headings the document stated that, having regard to the particulars, there was inconsistency with the provisions of the LEP that the council focuses on in this appeal, namely cll 2, 44 and 45: + Traffic/Parking/Access - that assessment of the impact could not be undertaken in accordance with cl 45(1)(c) and that the development was inconsistent with the clause 2 objectives, and cl 44(1)(e); + Urban Design/Character/Scale - that the proposed development was inconsistent with the cl 2 objectives, the zone objectives in cl 44(1) (f) and (i) and cl 45(1)(a); + Suitability of the Site - that the proposed development was inconsistent with zone objective (c) in cl 44(1); + Acoustic Impact - that the development was inconsistent with zone objective (e) in cl 44(1) and cl 45(1)(d) + Residential Amenity - that the development was inconsistent with zone objective (e) of cl 44(1) and cl 45. 20 In all cases the alleged inconsistency with LEP provisions were said to flow from the merit contentions as particularised. In other words, if the merit contentions were determined unfavourably to the council, then that would be dispositive of the alleged inconsistency.

21 The council submits that the Senior Commissioner failed to have regard to the general objectives of the LEP in cl 2. The council did not put in contention the matters referred to in clause 2(a)(iv) of the LEP. In my opinion, the other matters specified in cl 2, to the extent that they were raised by the council, were at the heart of its contentions.

22 Clause 2(a)(i) sets as an aim of the LEP that buildings should be designed to achieve good urban design, public and private safety and energy and resource efficiency. The council raised as contentions: urban design (identifying concerns as to bulk, scale and design), public and private safety (concerns as to traffic and pedestrian conflict), and energy efficiency (concerns as to allegedly unsatisfactory classroom layouts). Each of these matters was the subject of evidence, and was considered by the Senior Commissioner; each was found to be satisfactory: judgment [27] - [35] and [38] - [49].

23 Clause 2(a)(ii) sets out the ecological aim of the LEP. The only ecological issues connected with this objective, identified by the council, was in relation to remnant Cumberland Plain Woodland trees and the alleged desirability of creating a 15 metre setback from Johnson Street for the purpose of a "biodiversity corridor". The council indicated that it would be satisfied on those trees and biodiversity corridor issues if a 15 metre setback was provided. These matters were the subject of written and oral evidence. The Senior Commissioner did not agree that a 15 metre setback was required for ecological reasons, but nonetheless required the setback (along only part of the frontage) for reasons associated with mitigating bulk and scale concerns: judgment [24] to [26]. The Senior Commissioner resolved these issues in favour of the council.

24 Clause 2(a)(iii) sets general aims in relation to traffic generating development. The location of the school was the subject of written and oral evidence from planners, urban designers and traffic experts. The traffic experts agreed on the traffic generation of the proposal and that the location of the school was proximate to public transport. The council did not seek to adduce evidence that a more suitable site closer to a railway station was available. The traffic issues were dealt with and found to be acceptable by the Senior Commissioner: at [16] to [19], [47] and [50].

25 Clause 2(a)(v) sets a general aim that new development should be compatible with the prevailing suburban character and amenity of the locality of the development site. The council's contentions state the reasons why it considered that the development was not compatible with the suburban character and the amenity of the locality. The Senior Commissioner considered written and oral evidence on each of these contentions. He attended a half-day view of the site and the relevant roads and intersections said to be adversely impacted by the development. The Senior Commissioner stated the three major impacts which arose from the development, and determined on the evidence that they were acceptable: at [47] - [50].

26 Clause 2(b) simply provides for the preparation of development control plans to make more detailed provisions as to how the aims of the plan are to be achieved. The relevant development control plan provisions were tendered to the Court as part of Exhibit 3 and were considered and referred to in the judgment at [28], [33], [34] and [36].

27 The Senior Commissioner was made aware of the requirements of cll 2 and 11(3) in submissions and, whilst there is no express reference to either in the judgment, every matter identified by the council as relevant and requiring to be considered as a consequence of those clauses were before the Senior Commissioner. His judgment shows that he had regard and was satisfied on the merits in relation to each of them: at [11] to [50].

28 For these reasons, I do not accept that the Senior Commissioner failed to have regard to the general objectives in cl 2 of the LEP.

29 Although failure to consider the LEP cl 44 zone objectives is the third ground of appeal, that ground must fail since the Senior Commissioner set out those objectives at [7] and referred to them at [30] of his judgment. CLAUSE 45 GENERAL RESTRICTIONS ON DEVELOPMENT

30 The council submits that the Senior Commissioner failed to consider and reach a conclusion in respect of the matters in cl 45 of the LEP. 31 The council submits that compliance with cl 45(1) is a precondition to the exercise of power to grant consent (Currey v Sutherland Shire Council (1998) 100 LGERA 365 (CA); Clifford v Wyong Shire Council (1996) 89 LGERA 240; Franklins Ltd v Penrith City Council and Campbell's Cash and Carry Pty Ltd [1999] NSWCA 134; Manly Council v Hortis [2001] NSWCA 81, (2001) 113 LGERA 321 at [40] and [54]; that cl 45(1) was so fundamental to the Senior Commissioner's determination that there was an obligation to refer to it and identify the manner in which it had been applied in reaching his decision; and that lack of dispute in relation to any of the matters set out in cl 45(1) does not address the requirement of cl 45(1).

32 Clause 45 requires a merit consideration of the compatibility of the buildings proposed by the development with the character and amenity of existing and likely future buildings on adjoining land.

33 The development site is adjoined on the south eastern side by an existing school. To the north west the development site is adjoined by residential housing. Across Johnson Street it is adjoined by residential housing. The rear of the site adjoins a nursery which has its frontage to Liverpool Road (Hume Highway).

34 The LEP and zoning extract were tendered as Exhibits 4 and 2. The Senior Commissioner viewed the site and surrounds including the road network and had before him a map of the immediate locality showing the adjoining properties and the location of objectors (Exhibit 6) The Senior Commissioner also had before him the Statement of Environmental Effects (Exhibit D) and council's draft conditions of consent (Exhibit 11), which set out exactly how the development would operate if approved. The Senior Commissioner was therefore well apprised of the extent and nature of the existing development on the adjoining land.

35 Clause 45(1)(a) of the LEP requires consideration of scale, bulk, design, height, siting and landscaping. These were all matters raised in the council's contentions and dealt with in the judgment. The Senior Commissioner was not satisfied with the scale, bulk, design, height, siting and landscaping as originally proposed, but was satisfied with those matters subject to minor amendments and conditions: judgment at [16]-[45]. The requirement for amendments came about because the Senior Commissioner was concerned with the impacts on the character and amenity of the existing and likely future buildings adjoining the site.

36 Clause 45(1)(b) requires a consideration of the impact of the operation of the building. The operation of the building was identified in the Statement of Environmental Effects (Exhibit D) and was the subject of extensive conditions. The only relevant contentions raised in this appeal in relation to the operation of the building concerns the size of the land, traffic generation and parking, and noise. Each of these matters is caught by separate heads under clause 45(1), and was the subject of detailed oral and written evidence. They were dealt with under the relevant headings in the judgment at [16] to [23] and [36] to [38].

37 Clause 45(1)(c) requires consideration of traffic generation and carparking. These were merit contentions specifically raised by the council. The impacts of traffic generation and parking were agreed by the experts as being acceptable, subject to conditions, and resolved by the Senior Commissioner in favour of approval: judgment at [16] to [19].

38 Clause 45(1)(d) requires consideration of noise, dust, light and odour nuisance. The council did not raise any contention in relation to dust, odour or light and told the Commissioner that only noise was relevant: see [16] above. To the extent that the council raised contentions in relation to noise, this was the subject of written and oral evidence considered by the Senior Commissioner in the judgment at [20] - [23] and found not to be a reason for refusal, subject to amendments and/or conditions that were duly made and imposed.

39 Clause 45(1)(e) requires consideration of privacy. No specific contention was raised by the council in relation to privacy. The only contention was in relation to acoustic privacy and was dealt with under the noise heading. 40 Clause 45(1)(f) requires consideration of stormwater drainage. The council originally raised stormwater matters as a contention, but accepted amended plans and information provided to it; stormwater drainage was not an issue in the proceedings.

41 Clause 45(1)(g) requires consideration of hours of operation of the development. The hours of operation were not in contention in the proceedings, and were fixed by an agreed condition. To the extent that they required consideration, the matter was covered by the Senior Commissioner's decision to impose a condition on the hours of operation for use of the Hall: judgment at [51].

42 Clause 45(1)(h) requires consideration of overshadowing. It was common ground between the parties that the proposal will not overshadow the school farm of Bass High School: judgment at [15].

43 The council did not make issues of all of the matters identified in cl 45. But to the extent that the council put cl 45 in contention, every matter raised was the subject of written and oral evidence. Each was considered by the Senior Commissioner and resolved in favour of approval. In those circumstances, it cannot be said that the Senior Commissioner did not undertake the task required by cl 45 prior to granting consent. He had regard to the matters in issue which cl 45 required him to consider and, in respect of those matters, satisfied himself that the development was compatible with the character and amenity of existing and likely future buildings on adjoining land.

44 The proponent submits that as the Senior Commissioner considered and determined all the council's contentions unfavourably to the council, it is not open to the council to say on appeal that he should have done more. The submission warrants consideration of the statutory requirement to define and address the real issues in proceedings and the role of a council's contentions in defining the real issues. 45 The overriding purpose of the Civil Procedure Act 2005 is to facilitate the just, quick and cheap resolution of "the real issues" in the proceedings: s 56(1). The Court is empowered to give such directions as it thinks fit for the speedy determination of the "real issues" between the parties: s 61(1). In order to identify and determine the "real issues" in an appeal from a council refusal of a development application, the Court's practice is to direct the council to file and serve a statement of facts and contentions prior to the first return date: Practice Note Class 1 Development Appeals paragraph 8. Section 79C(1) of the EPA Act requires the consent authority (and, on appeal, the Court standing in the shoes of the consent authority) to take into consideration the matters listed therein, but only if they are "of relevance to the development". In terms of s 79C(1)(a), the statement of facts and contentions is a vehicle for the council to identify any provisions of an environmental planning instrument that it contends are "of relevance" to the development and to make precise contentions as to why consideration of those provisions should lead the Court to refuse the development application. It is also a vehicle for the council (among other things) to make merit contentions as to why the development application should be refused. 46 That practice was followed by the council in the present case. However, the council's contentions in its statement of facts and contentions were substantially and precisely refined and substituted in the council's opening address to the Senior Commissioner. 47 In Rowe v Australian United Steam Navigation Company Ltd (1909) 9 CLR 1 at 24 Isaacs J said:

"…it is a sound general principle, leading not only to the maintenance of fair play, but also to the repression of unnecessary litigation, that parties must be bound by the course they deliberately adopt at the trial." 48 In Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd (1983) 3 NSWLR 378 at 385 - 386 Mahoney JA said:

"…the duty of the judge will vary according to the way in which the case has been conducted and according to the reasoning which he has followed. Ordinarily he may confine his attention to the points which have been taken and the submissions made in relation to them. (I put aside cases involving, for example, constitutional or jurisdictional issues, where special considerations may apply.) In my opinion, it is not open to a party on appeal to complain that reasons were not given for the decision of a matter of fact or law which was, or must have been, decided, if the matter was not the subject of submissions made to the court below in a way which called for a reasoned consideration of them." 49 In University of Wollongong v Metwally [No 2] (1985) 59 ALJR 481 at 483 the High Court stated:

"It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so." 50 In Coulton v Holcombe (1986) 162 CLR 1 at 7 Gibbs CJ, Wilson, Brennan and Dawson JJ said:

"…It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish."

51 In Page v Parkes Shire Council (1991) 72 LGRA 97 there was an appeal under s 56A of the Land and Environment Court Act. Cripps CJ held at 101-102:

"In Norcom Pty Ltd v Hunters Hill Municipal Council (13 September 1986, unreported) the Court held that it was a pre-requisite to raising a question of law under s 56A that that question of law be advanced and identified in the proceedings before the assessor if that were possible. The Court concluded that where the question was not one going to jurisdiction and not a question emerging only after the decision was given, it ought not entertain an appeal if it was not raised during the hearing: see also Coles v Woollahra Municipal Council (1986) 59 LGRA 133. In Coulton v Holcombe (1986) 162 CLR 1 the High Court was concerned with the exercise of the discretion of the Court of Appeal to entertain a question not raised in the proceedings before the trial judge. Although the High Court was concerned with a discretionary judgment of the Court of Appeal given pursuant to s 75A of the Supreme Court Act 1970 (NSW), the principles enunciated by the High Court have application, in my opinion, to appeals to a judge of the Land and Environment Court pursuant to s 56A of the Land and Environment Court Act against decisions made by assessors.

In Coulton the High Court did not accept the wide public interest claimed by the appellant as justifying an entitlement to raise a question of law not raised earlier. It based its decision upon the principles which it said had stood the test of time, namely, that litigants must be bound by the conduct of their case and not permitted to raise a new argument after a case has been decided except in exceptional circumstances, the importance of the finality of litigation, the difficulty of inducing an appeal court to consider new facts, the undesirability of encouraging tactical decisions not to present an issue in the first instance (keeping it in reserve for appeal) and the need for vigilance to avoid injustice to a party having to meet new facts and new issues of law for the first time at the appeal court: see University of Wollongong v Metwally (No 2 ) (1985) 59 ALJR 481."

"I do not think that a judicial officer can be said to make an error of law by not giving reasons with respect to a matter that was not the subject of submission before him. As I have said earlier, it is ordinarily not open to a party on appeal to raise a question of law that was not raised in the earlier hearing. Equally, in my opinion, it is not open to a party on appeal to complain that reasons were not given for a decision if the matter was not the subject of a submission made to the Court in a way which called for reasoned consideration: see Housing Commission v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 385-386; 53 LGRA 325 at 332-333, Mahoney JA." 52 In Randall Pty Ltd v Willoughby City Council [2005] NSWCA 205, (2005) 144 LGERA 119 at 124, Basten JA said at 124 [19]:

"…if the Commissioner was not asked to, and did not, decide the question of law now raised, it is doubtful whether the statutory appeal jurisdiction, under ss 56A and 57 of the Land and Environment Court Act , could properly be invoked." 53 In Design Power Assocs Pty Ltd v Willoughby City Council [2005] NSWLEC 470, (2005) 148 LGERA 233, Lloyd J, after reviewing some of the above authorities, said at [37] to [40]:

"[37] In the light of these authorities I find that the commissioner did not make any error of law in failing to refer to SEPP No 19, SEPP No 56 and SREP No 23. To allow the appeal on this ground could also set at nought the Practice Direction of the Court and Pt 13, r 14 of the Court Rules as to identification of the issues; it would permit the losing party to advance submissions on appeal which were not advanced at first instance, and it would deny finality to litigation.

[38] The council argues that s 79C of the EP&A Act nevertheless mandates consideration of the relevant environmental planning instruments. However, in Segal v Waverley Council (2005) 64 NSWLR 177, the Court of Appeal drew a distinction between administrative decision-making at the level of executive or local government, and a dispute-resolver such as a judge or other judicial or quasi-judicial officer (such as a commissioner of the Land and Environment Court), who is called upon to decide issues raised by the parties in adversarial litigation. In that case Tobias JA (Beazley and Basten JJA concurring) said at [42]:

'In the Land and Environment Court the litigation is adversarial in nature. The parties are opposed to each other and issues are joined between them. In such cases, ' the merits of any particular application depend upon the facts and circumstances of the case and the substantive issues joined between the parties' (At [95], emphasis added.)

[39] In Segal it was held that a commissioner of the Land and Environment Court is only bound to address the principal contested issues that were joined between the parties' (at [44], [99]), or the principal, central or critical issue the subject of the contest between the parties' (at [45], [69], [92]). In so holding the Court of Appeal applied Mifsud v Campbell (1991) 21 NSWLR 725, in which it was held (by Samuels JA, with Clarke JA and Hope A-JA concurring) that it was an incident of the judicial duty to give reasons to record the evidence and findings thereon which are critical to an issue in the case. As noted above, however, the council does not even now contend that anything in those instruments would justify a refusal of the development applications. In that event it could not be said that those instruments are critical, neither did they raise any contested issue which called for a reasoned consideration and findings thereon.

[40] Finally, it would be contrary to all principles to allow a party after a case has been decided against it to raise a new argument which, whether deliberately or by way of inadvertence, it failed to put at the hearing when it had the opportunity to do so: University of Wollongong v Metwally (1984) 158 CLR 447, Coulton v Holcombe (1986) 162 CLR 1." 54 The council's submitted inference that the Senior Commissioner did not consider or address cll 2 and 45 is based on the fact that he did not expressly refer to those clauses in contrast to his express reference to cl 44. Having regard to the way the council conducted its case, that inference does not arise so far as concerns matters in contention before the Senior Commissioner and it was not essential that he expressly refer and relate his conclusions to cll 2 and 45. 55 In my opinion, the Senior Commissioner was not bound to do more than decide the council's contentions, which he did unfavourably to the council, and it is not open to the council to say on appeal that he erred in law in not doing more. The matters the subject of the contentions coincided with or overlapped with matters referred to in cll 2, 44 and 45 of the LEP. Therefore, to the extent that they were contentious, the Senior Commissioner considered the matters in those clauses and carried out the tasks required by cll 11(3) and 45. In my opinion, having regard to the way the case was presented to him, the Senior Commissioner did not make any error of law, let alone an error of law that would justify intervention on appeal.

56 The orders of the Court are as follows: 1. The appeal is dismissed with costs.

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.