Bellenger v Randwick City Council

Nature of appeal and outcome

1. A Commissioner of the Court, Hussey AC, dismissed an appeal and refused development consent to construct an undersized, off-street, hardstand car space at 43 Greville Street, Clovelly. The Commissioner's written reasons and orders are 34 paragraphs long, 15 of which are his consideration: Bellenger & anor v Randwick City Council [2016] NSWLEC 1279.
2. The unsuccessful applicants have appealed against the Commissioner's decision under s56A of the Land and Environment Court Act 1979 ("the Court Act"). The appeal under s56A of the Court Act is limited to questions of law. The appellants, in their summons commencing the appeal, raise 18 grounds of appeal where they contend that the Commissioner erred on a question of law. This is more grounds of appeal than there are paragraphs of consideration in the Commissioner's judgment.
3. None of the grounds of appeal is sustainable. The appellants have adopted "a narrow approach, combing through the words of the decision-maker with a fine appellate tooth-comb, against the prospect that a verbal slip will be found warranting the inference of an error of law": Minister of Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 291; [1996] HCA 6 and see Brimbella Pty Ltd v Mosman Municipal Council (1985) 79 LGERA 367 at 368.
4. The appellants' arguments also lacked proportion. The development proposed was simple (an off-street hardstand car space) raising simple issues (including the noncompliance with the minimum dimensions control for the hardstand car space and the consequential potential adverse effects of loss of on-street parking, obstruction of the footpath by an overhanging parked vehicle, impeding safe pedestrian movement on the footpath and setting an undesirable precedent). The simplicity of the case was demonstrated by the fact that the hearing, after undertaking a view of the site and surrounds, only took about two hours.
5. The Commissioner had expertise and long experience in engineering and town planning. He was well equipped to determine the acceptability of the proposed hardstand car space and its potential consequential impacts.
6. The Commissioner's reasons for determination, therefore, could also be simple and proportionate to the simple nature of the proposed development and the simple issues to be determined. Simple questions can be answered with simple reasons.
7. The appellants have also adopted a "scattergun approach", loading up the summons "with every conceivable error they believe they can identify": Hoy v Coffs Harbour City Council [2015] NSWLEC 128 at [17], appeal dismissed in Hoy v Coffs Harbour City Council (2016) 218 LGERA 411; [2016] NSWCA 257.
8. The appellants' arguments seek to find legal error in every infelicitous phrase, every finding of fact or statement of conclusion with which the appellants disagree and every reference to or paraphrase of provisions of statutes or planning instruments that did not support their case as well as any lack of reference to provisions of statutes or planning instruments that they believed did support their case. This involved examining too narrowly the words used by the Commissioner in his reasons for decision as if they were written by lawyer, rather than a person with a different, non-legal expertise, who uses a different mode of expression. This does not mean that there are double standards in reviewing the reasons and decisions of legally qualified Commissioners and those of non-legal Commissioners, but rather is a recognition that decision-makers with different expertise used different modes of expression in their reasons for decision: Brimbella Pty Ltd v Mosman Municipal Council at 368 and Minister for Immigration and Ethnic Affairs v Wu Shan Liang at 291.
9. At the base of all of the appellant's arguments was a dissatisfaction with the merits of the decision made by the Commissioner. That merit determination, of course, is not reviewable on an appeal under s56A of the Court Act which is limited to questions of law.
10. The appeal should be dismissed with costs.

The Commissioner's decision

1. The appellants had appealed against the refusal of Randwick City Council ("the Council") of a development application to demolish part of the front veranda and masonry fence of the appellants' semidetached dwelling and construct a hardstand car space in the front setback area. The front elevation of the dwelling has a setback of about 4.8m from the road boundary. The appellants proposed a car space with the dimensions of 3m wide and 4.72m long.
2. The relevant planning instrument was Randwick Local Environmental Plan 2012 ("RLEP"), under which this site is within the R2 Low Density Residential Zone. The relevant development control plan was Randwick Comprehensive Development Control Plan 2013 ("RDCP"), which contains detailed controls regulating the creation of parking facilities (cl 6.1) and hardstand car space configuration (cl 6.7) in Part C1 Low Density Residential. The control in cl 6.7(ii) of RDCP requires that the hardstand car space must have minimum dimensions of 2.4m x 5.4m. This is consistent with the control in cl 3.7(i) of RDCP in Part B7 Transport, Traffic, Parking and Access, which provides: "An off-street car space must be a minimum of 2.4m x 5.4m long and comply with AS 2890.1". Australian Standard AS 2890.1, referred to in RDCP, provides in cl 2.4.1 - Angle parking spaces: (a) Length The nominal length of a parking space in a parking module shall be 5.4 min except as follows: (iii) Spaces for small cars In certain circumstances it may be appropriate to provide a space smaller than specified above for small cars. It shall be designated as a space for small cars. The minimum dimensions shall be as follows: (A) In Australia - 2.3m wide x 5.0m long.
3. The appellants' proposed car space did not satisfy these controls, being of insufficient length (only 4.72m rather than 5.4m in RDCP or the minimum length for a small car of 5.0m in AS 2890.1).
4. The Commissioner considered the competing expert evidence of the potential consequences of approving the undersized car space. Mr Higgins, the traffic engineer called by the Council, contended that the undersized car space was likely to have a number of unacceptable consequences, including:

• A high probability of a parked vehicle regularly overhanging the property boundary and partially blocking the footpath or a vehicle forgoing the use of the car space as being impractically small and instead parking on the driveway in the footpath, as was common with neighbouring developments;

Ground 1: Failure to consider s79C(3A)(b) of the EPA Act

1. The appellants' first ground of appeal was that the Commissioner failed to have regard to s79C(3A)(b) of the Environmental Planning and Assessment Act 1979 ("EPA Act"). That subsection provides, so far as is relevant: If a development control plan contains provisions that relate to the development that is the subject of a development application, the consent authority: (b) if those provisions set standards with respect to an aspect of the development and the development application does not comply with those standards - is to be flexible in applying those provisions and allow reasonable alternative solutions that achieve the objects of those standards for dealing with that aspect of the development,
2. The appellants argued that the inference should be drawn that the Commissioner failed to have regard to this provision because: 1. the Commissioner did not expressly mention s79C(3A)(b) of the EPA Act in his judgment; 2. the Commissioner did not consider the substance of s79C(3A)(b) in making his determination. The particular formulation of words used in the provision is not found in the Commissioner's judgment and the Commissioner did not apply the formulation in making his determination; and 3. there was reference to s79C(3A)(b) in oral submissions and in their written submissions of the appellants, yet despite this there was no reference to s79C(3A)(b) in the Commissioner's reasons.
3. The appellants argued that s79C(3A)(b) is in two parts and required the Commissioner to be flexible in applying the standard in cl 6.7 of RDCP and allow reasonable alternative solutions that achieve the objects of that standard. Although the Commissioner did note that a discretion could be exercised in the application of the minimum length standard in cl 6.7 of RDCP (see [12] of the judgment), he did not apply both parts of the statutory formulation in s79C(3A)(b) in the exercise of that discretion. In particular, the appellants argued, the Commissioner did not consider whether the proposed development was a "reasonable alternative solution" within s79C(3A)(b).
4. The appellants argued that application of the statutory formulation in s79C(3A)(b) involves three steps. The first step is to identify the objects of the standard with respect to an aspect of the development with which the development does not comply. In this case, the standard is the minimum dimensions of a hardstand car space in cl 6.7 of RDCP. The appellants argued that the objects of that standard are the objectives in cl 6 of Part C1 of RDCP. These are: ● To ensure car parking and access facilities do not visually dominate the property frontage or streetscape. ● To ensure parking facilities are integrated with the architectural expression of the dwelling as in integrated element. ● To minimise hard paved surfaces occupied by driveways and parking facilities, and maximise opportunities for deep soil planting and permeable surfaces for stormwater infiltration. ● To ensure the location and design of parking and access facilities do not pose undue safety risks on building occupants and pedestrians. ● To ensure the location and design of parking and access facilities do not adversely impact on the amenity of neighbouring properties.

Ground 2: Denial of procedural fairness on s79C(3A)(b) of the EPA Act

1. Ground 2 was that the Commissioner denied the appellants procedural fairness by not addressing the appellants' submission based on s79C(3A)(b). This ground was dependent on the Court finding that the Commissioner did not consider s79C(3A)(b).
2. For the reasons I have given in relation to ground 1, the appellants have not established that the Commissioner did not consider s79C(3A)(b) and the parties' evidence and arguments on the questions raised by that provision. Ground 2 must also fail for the same reason.

Ground 3: No evidence for finding that cl 6.7(ii) of RDCP had been consistently applied

1. Ground 3 was that: The Acting Commissioner erred in law in finding that the minimum length standard in cl 6.7(ii) of the RDCP had been consistently applied, when in fact there was no evidence before him that that minimum length prescribed by the RDCP (5.4m) had ever been applied to any development consent, or that cl 6.7 of RDCP had been applied to any development consent at all.
2. This no evidence ground challenged the finding of the Commissioner in [21] of the judgment where he said that he gave "determining weight to the RDCP 2013 provisions, on the basis that they have been consistently applied and they represent the changing desired future character of the area".
3. The appellants argued that "[t]here was in fact no evidence at all before the Commissioner that the 5.4m minimum length standard in cl 6.7 of the RDCP had been consistently applied. The evidence was that Council had been assessing DA's by reference to either the minimum small car requirements of the Australian Standard, or 5m, whichever is the lesser: [20] Judgment. The minimum standard length for small car in the Australian Standard was also 5m on the evidence before the Commissioner: [12] Judgment. There was no evidence of even one standard car space that had been approved at the minimum length specified in the RDCP of 5.4m."
4. The appellants submitted that "[t]o decide the proceedings on the basis of a finding for which there is no evidence, as the Commissioner has done, is an error of law", citing Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 367: Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390; [2010] HCA 32 at [91], Rawson Finances Pty Ltd v Commissioner of Taxation [2013] FCAFC 26 at [83] - [84].
5. The Council responded that there was evidence for the Commissioner's finding and that was quoted in the immediately preceding paragraph of the judgment. The Council assessment report on the appellants' development application had stated that "it is considered that the controls relating to hardstand spaces within the RDCP 2013 have been consistently applied to development applications": [20] of the judgment. The language used by the Commissioner in [21] of the judgment (that the provisions of RDCP "have been consistently applied") echoes the quoted language from the Council assessment report (that the controls within RDCP "have been consistently applied").

Ground 4: Irrationality in finding that car space less than 5m was an unreasonable expectation

1. Ground 4 was that: The Acting Commissioner erred in law at [20] - [21] of the decision by reasoning that the Council's Mayoral Minute of 2007 (Mayoral Minute 70/2007) required him to find that a car space length of less than 5m was an unreasonable expectation for the subject site.
2. The appellants contended that ground 4 is related to ground 3 and "challenges an example of illogical and irrational reasoning contrary to Minister of Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18. The illogical and irrational reasoning was that based on the (non-existent) evidence that the minimum standard length of 5.4m in the RDCP had been consistently applied, it was an unreasonable expectation for a property owner to have a standard car space of less than 5m (at [21] Judgment). The reference to a Mayoral Minute of 2007 stipulating that DA's were to be assessed to a 5m minimum length does not supply the logical deficiency in the Commissioner's reasoning as the Mayoral Minute does not establish consistent application at the 5.4m minimum standard in the RDCP, but to the contrary it flags Council's persistent and ad hoc departure from the 5.4m minimum".
3. The Council submitted that the appellants have not cleared the very high hurdle of proving irrationality or illogicality: see Minister of Immigration and Citizenship v Li.
4. I do not accept the appellant's ground 4. The appellants' argument is based on a misreading of what the Commissioner said in [21] of the judgment. For convenience, I repeat paragraphs 20 and 21 of the Commissioner's judgment: 20. In acknowledging these crossings/hardstands, the RDCP was adopted in 2013 and the Council assessment report in Ex 2 states: "Further to the consistent advice provided by Council since 2008, it is considered that the controls relating to hardstand spaces within the RDCP 2013 have been consistently applied to development applications. Council has recognised the particular site constraints that commonly exist within the LGA for hardstand spaces for semi-detached dwellings. As shown in the referral from Council's Development Engineer, on the 24th July 2007 Council passed Mayoral Minute No 70/2007 whereby all current and future development applications shall be assessed with regard to the minimum small car requirements of the Australian Standards or 5 metres in length, whichever is the lesser." 21. Accordingly, I give little weight to the Applicant's referral to other non -complying, not approved hardstands and instead give determining weight to the RDCP 2013 provisions, on the basis that they have been consistently applied and they represent the changing desired future character of the area. Consequently, considering the minimum length hardstand it is then apparent that in some circumstances it may be an unreasonable expectation for a property owner that a hardstand area with a length less that 5m would be acceptable. Whilst the experts agreed that a 5m long hardstand could be appropriate in the circumstances, the proposal is deficient and the Applicant has been unable to consider alternatives.

Ground 5: Failure to consider cl 2.3 of RDCP

1. Ground 5 was that: The Acting Commissioner erred in law and failed to have regard to a mandatory relevant consideration contrary to s79C(1)(a)(iii) but not having regard to cl 2.3 (Part A2) of the RDCP, which cl requires the controls in the RDCP to be applied flexibly in circumstances where existing site constraints render compliance difficult to achieve, and requires the variation of the numerical control (5.4m) to be assessed against the degree or numerical extent of the variation from the control.
2. Clause 2.3 of Part A of RDCP provides, in part: Proposals are expected to comply with the numerical controls in this DCP. Any proposed variation from the controls may be considered only where the applicant successfully demonstrates that an alternative solution could result in a more desirable planning and urban design outcome. This ensures that the DCP guidance has sufficient flexibility to recognise that every property has different characteristics based on their unique combination of site conditions, size, aspect and locations. The context and site analysis will be critical in demonstrating the need for any variations to the numerical controls. Any proposals seeking to vary the numerical controls will be assessed against the following criteria: (i) Consistency with the general objectives of the LEP, and the general objectives and specific control objectives of this DCP. (ii) The degree or numerical extent of variation from the control. (iii) The presence of any existing site constraints rendering strict compliance difficult to achieve, such as: - Site topography - Site orientation - Allotment configuration - Allotment dimensions - Existing building structures to be retained (iv) Potential impacts on the structural stability, visual amenity, solar access, privacy and views of the adjoining properties as a result of the variation. (v) Potential impacts on the public domain in terms of streetscape character, views and vistas and pedestrian amenity. (vi) Whether strict compliance with the controls will or will not permit construction of a building with reasonable dimensions, internal amenity, open space provision and architectural character.
3. The appellants submitted that cl 2.3 of Part A of RDCP required flexible application of the control in cl 6.7 of RDCP and required consideration of whether the circumstances of the site rendered strict compliance difficult to achieve (ie the limited available space in front of the appellants' dwelling house) and the degree of numerical variation (4.72m compared to 5.4m).

Ground 6: Denial of procedural fairness on cl 2.3 of RDCP

1. Ground 6 was that "[t]he Acting Commissioner erred in law and denied the Applicants procedural fairness by not addressing the Applicants' submissions based on cl 2.3 of the RDCP".
2. Ground 6 was consequential on the appellants' argument in ground 5 that the Commissioner failed to have regard to cl 2.3 of RDCP. For the reasons I have given in relation to ground 5, the appellants have not established that the Commissioner failed to have regard to cl 2.3 of RDCP. Ground 6 therefore also fails.

Ground 7: Misconstruction of zone objective

1. Ground 7 was that: The Acting Commissioner erred in law at pars [24] and [25] of the decision and misconstrued the zone objective of the R2 Low Density Residential Zone being "to recognise the desirable elements of the existing streetscape and built form or, in precincts undergoing transition, that contribute to the desired future character of the area", by construing this objective as requiring the proposed car space in itself to be a desirable element of the streetscape, rather than requiring the consent authority to consider the existing streetscape and built form.
2. The appellants categorised ground 7 as a statutory misconstruction ground, the misconstrued provision being that the objective of the R2 Low Density Residential Zone required the Commissioner to "recognise the desirable elements of the existing streetscape and built form or, in precincts undergoing transition, that contribute to the desired future character of the area".
3. The appellants contended that the Commissioner did not construe this objective as a reference to the existing built form, but as a direction to consider whether the car space to be built would itself be a desirable element in the streetscape: see [25] of the judgment.
4. The Council responded that the Commissioner recognised that he was required, by cl 2.3(2) of RLEP, to have regard to the objectives of the zone. He said so in [24] of the judgment and set out the third objective of the R2 Low Density Residential Zone. Consideration of that objective required identifying the desirable elements of the existing streetscape and built form or that contribute to the desired future character of the area.
5. The Council submitted that, in [25] of the judgment, the Commissioner made factual findings about the existing, noncompliant hardstand in the adjoining semidetached dwelling and the off-street parking in other detached dwellings, which implicitly he found not to be desirable elements in the existing streetscapes; the proposal was for another noncompliant hardstand that would introduce additional safety issues and have negative impacts on the streetscape and amenity of the residents; and therefore, it would also not be a desirable element in the streetscape. This involved consideration of the zone objective. There was no misconstruction of the zone objective by finding that the existing hardstand and off-street car parking and the proposed hardstand are not desirable elements of the streetscape.

Ground 8: No evidence for finding on noticeable marking for small car parking only

1. Ground 8 was that: The Acting Commissioner erred in law in par [25] by finding that the proposed car space would be "noticeably marked for small car parking only" and would for that reason not be a desirable element of the streetscape, when there was no evidence before him that the car space would be so noticeably marked or that this was a proposed condition of consent.
2. The appellants argued that there was no evidence for the Commissioner's finding that the proposed car space would be "noticeably marked for small car parking only". To make a factual finding for which there is no evidentiary basis is to make an error of law. The appellants contended that no such signage requirement for small car use only was suggested by either party or proposed in the conditions of consent. The appellants argued that this finding that there would be noticeable marking for small car usage only affected the Commissioner's finding that the proposed hardstand would not be a desirable element in the streetscape.
3. The Council submitted that this ground fails for two reasons. First, the Commissioner was making an assumption and not a finding of fact, as his language "presumably to be noticeably marked" makes clear. Second, there was evidence for the Commissioner's assumption: ● at transcript 28.33 - 49 the expert accept that trade vehicles and visitors could protrude (if they were not small vehicles); ● at transcript 25.21 Mr Brennan accepts that you should park a car in that space that fits in that space; ● in his Statement of Evidence (at Folio 362) Mr Brennan states that "the hardstand car parking space house only a small motor vehicle"; ● At judgment [14] the Commissioner summarises Mr Brennan's evidence saying that a small space will be clearly designated.
4. I find this ground fails. First, the appellants have misread what the Commissioner said. The Commissioner was not saying that the noticeable marking of the space would not be a desirable element in the streetscape; it was the proposal for a noncompliant hardstand car space that would not be a desirable element in the streetscape. The reference to the hardstand "presumably [being] noticeably marked for small car parking only" was an aside. Second, in saying this, the Commissioner was making an assumption, not a finding of fact. Third, the assumption was reasonable on the evidence. The appellants' whole case was that the undersized hardstand car space would not lead to the adverse effects on on-street parking, pedestrian safety and precedent argued by the Council and its expert because the appellants would buy a small car that would fit within the undersized car space and would accept the conditions restricting on-site parking to only a small car (as the Commissioner noted in [28] of the judgment). The appellants' expert, Mr Brennan, so contended in his evidence.

Ground 9: No evidence for finding that existing hardstands were not approved

1. Ground 9 was that: The Acting Commissioner erred in law by finding at [19] of the decision that many of the hardstand car spaces which were relied on by the Applicants in the locality and adjoining premises had never in fact been approved by the Respondent, when there was no evidence before him to support a finding in those terms.
2. The Commissioner's finding in [19] was that many of the existing hardstands in the surrounding area "have never been approved by Council or they were approved before RDCP 2013 came into effect."
3. The appellants submitted that if the Commissioner's finding in [19] was intended to be a reference to the 4.6m car space at 43A Greville Street (the semidetached dwelling attached to the appellants' dwelling at 43 Greville Street) being approved at 4.7m, then it goes too far. That car space was undoubtedly "approved" by the Council, as were all the other car spaces surrounding 43 Greville Street, and any minor noncompliances with their approval (such as 0.1m over 4.6m in this case) does not render them "unapproved".
4. The Council responded that there clearly was evidence for the Commissioner's finding: (1) The parties went on a view of the site and surrounds (see judgment [19]); (2) The parties consented to the Commissioner taking what he saw and heard into account (see Transcript 1.41); (3) The Court observed a number of unapproved or noncompliant parking spaces (see Transcript 33.34 - 42); (4) Exhibit 7 (Court Book Folio 312) was a Matrix of Hardstand Consents setting out hardstands that had been approved, not approved and/or approved prior to RDCP 2013.
5. I agree with the Council's submission. There was evidence for the finding. I reject ground 9.

Ground 10: Denial of procedural fairness by not considering appellants' submission on another decision

1. Ground 10 was that: The Acting Commissioner erred in law and denied the Applicants procedural fairness by not considering their submission (citing Strata Plan 18915 v Waverley Council [2013] NSWLEC 1121) that the minimum length standard in the recently made RDCP needed to be moderated by the existing built form in the locality to which the RDCP was being applied (that existing built form containing many car spaces below either 5.4 or 5m in length).
2. The appellants argued that they had submitted in the hearing before the Commissioner that the minimum length requirement in the new RDCP needed to be moderated by reference to the existing built form and relied on the extempore decision of Commissioner Dixon in Strata Plan 18915 v Waverley Council [2013] NSWLEC 1121. That submission was contained in paragraph 6 of the appellants' written submissions handed to the Commissioner, which stated: The Applicants' case is that even if larger and longer vehicles were to use the hardstand car space, there is no pedestrian safety risk created thereby as persons can easily negotiate any projection at this point (including by deviating onto the concrete expanse of the driveway using the generous frontal verge at this point), that the flexible and practical application of the RDCP and the Australian Standard is required consistently with s79C(3A) and the objectives of the RDCP, and that appropriate consideration needs to be given to the fact that there are many small car spaces in adjoining and proximate properties in the surrounding locality. The Applicants submit that the approach taken by the Court in Deguara v Waverley Council; Coop v Waverley Council [2012] NSWLEC 1305 is applicable here, as is the acknowledgment in Strata Plan 18915 v Waverley Council [2013] NSWLEC 1121 that the provisions of a council DCP need to be applied in the context of the existing built form in the locality.
3. The appellants contended that the submission based on this case was not addressed by the Commissioner. The failure to address this submission denied the appellants procedural fairness: Segal v Waverley Council (2005) 64 NSWLR 177; [2005] NSWCA 310 at [43], [44] and [99].
4. The Council responded in at least three ways. First, there was no duty on the Commissioner to consider every submission made, only submissions on the principal contested issues that were joined between the parties. The reference in the appellants' written submissions to the decision of another Commissioner was not a submission on a principal contested issue that needed to be addressed.

Ground 11: No evidence for finding that undersized car spaces not approved

1. Ground 11 was that: The Acting Commissioner erred in law by finding that "Randwick Council has not elected to approve of any undersized car spaces" subject to conditions, under the RDCP, when there was no evidence before him to support that finding.
2. This impugned finding was in [29] of the Commissioner's judgment: 29. Whilst I accept that there is an expectation that residents will comply with all conditions of consent, I am not satisfied that this is a reasonable condition to impose in the subject circumstances. Under the current planning controls, including the RDCP 2013, Randwick Council has not elected to approve of any undersized hardstand spaces, in a manner proposed by the Applicant (i.e. conditioning the use of an undersized hardstand or requiring s88E convenant to restrict parking to a small vehicle).
3. The appellants submitted that this "surprising finding" was not supported by any evidence. The evidence was, to the contrary, that the Council had continued to approve hardstands by reference to the 5m minimum in the 2007 Mayoral Minute. There was evidence that the 4.8m car space at 41 Greville Street was approved in 2011 (this was said to be approved at 5m by Council, still a significant deviation from the RDCP's 5.4m minimum standard).
4. The Council responded that there was evidence to support the finding, including the Matrix of Hardstand Consents that did not record any approval of any undersized hardstands after the coming into force of RDCP in 2013 and the Council assessment report on the appellants' development application stating that "the controls relating to hardstand spaces within the RDCP 2013 have been consistently applied to development applications".
5. I agree with the Council's submission. There was evidence for the Commissioner's finding. The appellants have misread the Council assessment report (extracted in [20] of the judgment). It did not say that the Council had continued, after the coming into force of RDCP, to approve hardstands by reference to the 5m minimum in the Mayoral Minute. The appellants' argument on ground 11 is thereby undermined.
6. I reject ground 11.

Ground 12: Irrationality of finding that condition limiting car space to small cars is unreasonable

1. Ground 12 was that: The Acting Commissioner erred in law and reasoned and decided in a legally unreasonable manner by finding (contrary to the reasoning and decision in the decided cases of Defterios v Wollahra Municipal Council [2007] NSWLEC 434 and Deguara v Waverley Council [2012] NSWLEC 1305) that a condition expressly limiting the use of the car space to small vehicles or vehicles below a specified length as strict compliance with minimum length controls in the RDCP was unachievable due to site constraints, was not a reasonable condition to impose on this proposal, on the basis that: i. those cases related to other local government areas, ii. Randwick Council had not elected to approve any undersized car spaces in a manner proposed by the Applicant (that is, subject to a condition), and/or iii. determining weight was required to be given to the RDCP.
2. The Commissioner dealt with the appellants' argument that a condition limiting the use of the proposed car space to small cars at [28] to [33] of the judgment.
3. The appellants submitted that "[t]o dismiss this type of condition found acceptable in the Defterios and Deguara cases on the basis that they were dealing with development in a different LGA and in deference to Council's submission that its new RDCP should be applied (in effect) as a pristine new set of standards imposing a strict 5.4m minimum in circumstances where the existing built form contained numerous small spaces of around 4.72m and Council's own policy is to depart from the 5.4m standard (the Mayoral Minute) is to adopt a process of reasoning that is irrational and legally unreasonable. It elevates the form of local government bureaucracy and administration (by giving crucial significance to different LGA in which those cases were decided) over planning substance and endorses Council's managerialist objective of having the RDCP minimum length standard applied (contrary to the Act, the words of the RDCP itself, and Council's own policy) as a pristine document to be strictly applied without any variation."
4. In their submissions in reply, the appellants contended that "[t]he irrational aspects of the reasoning that are impugned in this ground are those set out at Judgment [29] and [33]. Prior cases accepting the reasonableness of such conditional approval were dismissed by reason of the fact that they were in relation to other LGAs, the finding based on no evidence that the Respondent had not elected to approve any undersize car space subject to such a condition and the current planning controls, and the need to strictly apply the RDCP cl 6.7 standard and give it to determinative weight. The absurdity of relying on the latter limb of the reasoning is that the Commissioner in fact construes cl 6.7 is having transmogrified into the 5m stipulation in the 2007 Mayoral Minute. How can that DCP control have been given determinative weight when it was set aside in favour of the Mayoral Minute?"

Ground 13: No evidence for finding off-street parking not possible

1. Ground 13 was that: The Acting Commissioner erred in law in finding that the proposal was within the "Note" to cl 3.6 (Part B7) of the RDCP which provided that in some cases it may not be possible to provide off-street car parking, on the basis of no evidence and contrary to the evidence before him which was of numerous off-street car spaces serving adjoining properties (next door) and in the immediate locality".
2. The impugned finding was in [33] of the judgment where the Commissioner concluded his reasons by saying: On this basis and the above reasons, I consider this proposal falls into the category stated in cl 3.6 of the RDCP, which notes that "in some cases, it may not be possible to provide off-street car parking" and accordingly I consider this application should be refused."
3. The appellants submitted that the finding that off-street parking on this site is not possible is legally unreasonable and absurd. "The adjoining "other half" of the semidetached dwelling at 43A - 43 Greville Street is a site of a 4.6m car space. There are numerous small car spaces on this street and in the vicinity. It is quite simply absurd to conclude that on this site it is not possible to provide off-street parking, yet this is exactly what the Commissioner found".
4. In their submissions in reply, the appellants further submitted that "[w]hen the whole of cl 3.6, Part B is considered, it is apparent that the phrase is also taken out of context as the DCP at this point is referring principally to heritage areas which may constrain the ability to establish such car parking … Clause 3.6 is addressing car park location and design generally, and not car park size, which is addressed by the specific provision in cl 6.7. As a matter of conventional principles of construction, cl 6.7 governs the matter of hardstand car park length in the DCP. The note at the end of cl 3.6 is therefore taken out of context and when applied to the context before the Commissioner, results in a finding that … is just not supported by the evidence".
5. The Council submitted that, although ground 13 was framed as an error for a decision made with no evidence, or contrary to evidence, that ground was abandoned by the submissions made by the appellants. The submissions pressed the ground as being legally unreasonable or absurd.

Ground 14: Considering irrelevant matter of precedent

1. Ground 14 was that: The Acting Commissioner erred in law finding that the proposal should not be approved as it set an unacceptable precedent for unspecified "other developments in the area", this being an error or law because: (i) there is no doctrine of planning precedent as a matter of law, (ii) each development application must be considered on its merits, (iii) in so reasoning the Acting Commissioner had regard to an irrelevant consideration being hypothetical future development applications other than that which was before the Court, and (iv) in so reasoning the Acting Commissioner impermissibly gave determinative weight to the Respondent's view that the RDCP should be strictly and inflexibly applied, contrary to both the existing character and built form of the area, and to s79C(3A) of the EP&A Act.
2. The impugned finding was in [30] of the judgment where the Commissioner stated: In the circumstances the Court accepts the Council's submissions that it is not in the public interest to set such a precedent in this locality. The approval of other similar developments under different planning controls was not a basis for approval of this application as it sets an unacceptable precedent for other developments in the area.
3. The appellants submitted that Segal v Waverley Council (at [56]-[64]) establishes that a planning decision by a commissioner is administrative and has no precedential effect on future development application determinations. It follows, the appellants submitted, that the Commissioner's finding in [30] was contrary to law, as it incorrectly assumed that the Commissioner's decision would have a precedential affect and also invoked the notion that the RDCP must be inflexibly applied, contrary to s79C(3A)(b) of the EPA Act.
4. The Council submitted that the appellants' submission in relation to Segal v Waverley Council goes too far. That decision identifies the scope of a commissioner's duty to give reasons for not following the decision of another commissioner. Here, ground 14 has nothing to do with the adequacy or otherwise of the Commissioner's reasons.
5. The Council submitted that precedent may be taken into consideration. In Goldin v Minister for Transport (2002) 121 LGERA 101; [2002] NSWLEC 75, Lloyd J held that the commissioner in that case "did not err in law in taking into consideration the fact that approval of the application would be a precedent. That was not an irrelevant consideration" (at [34]).

Ground 15: Considering irrelevant matter of requiring positive public interest outcome

1. Ground 15 was that: The Acting Commissioner erred in law finding it par [23] of the decision that the proposal should be refused as it did not provide on balance a "positive public interest outcome", when no finding of a positive interest outcome was required by any applicable planning control, or by s79C of the EP&A Act, and where the asserted need to establish a "positive public interest outcome" as a prerequisite for consent was not an issue in the proceedings.
2. The appellants submitted that although s79C(1)(e) of the EPA Act requires consideration of the public interest, there is no requirement in the EPA Act or RLEP that, before a development application can be approved, a development must have a positive public interest outcome or benefit. The Commissioner reasoned to the contrary. It was irrelevant consideration.
3. The Council submitted that it had, in contention 4(b) of the statement of facts and contentions before the Commissioner, identified the loss of one on-street parking space as a concern to the Council. It was also a live issue in the proceedings: ● the applicant cross examined on the issue (Transcript 29.37-30.22); ● The applicant closed on it (Transcript 30.15-26 in written submissions [37]); ● The experts conferred and expressed opinions upon it in the Joint Report (Court Book Tab 7 Folio 247).
4. The Commissioner was interested to assess the competing private and public interest considerations associated with the creation of a private, off-street car parking space and the loss of a public, on-street car parking space. The appellants did not object to that course.
5. The Council also submitted that whether or not there was a positive public interest outcome was a matter falling within the mandatory relevant consideration of the public interest in s79C(1)(e) of the EPA Act, and therefore was not irrelevant.
6. I find the appellants have not established that the Commissioner erred in law by making the finding at [23] that the loss of an existing on-street car parking space, that was available for the general public, would not be a positive public interest outcome. This was simply a finding of fact. The Commissioner did not hold, as a legal test, that to be approved a development must have a positive public interest outcome. The Commissioner did not misdirect himself as to the law or take into account any irrelevant matter.

Ground 16: Irrational finding of loss of public interest benefit

1. Ground 16 was that: The Acting Commissioner erred in law and reasoned and decided the case in a legally unreasonable manner by finding that the loss of a single on-street car space due to the revision of a driveway for a proposed car space was an "unreasonable loss of public interest benefit", this finding being illogical and irrational given the evidence that either that, or a proximate on-street car space along Greville St, would inevitably be used by the Applicants as there was no off-street parking on the subject property".
2. This ground concerned the same finding of the Commissioner in [23] of the judgment.
3. The appellant submitted that the finding was illogical and legally unreasonable as, on the evidence, there would be a one for one replacement of an off-street car space (occupied by the appellants) with an on-site car space with no net detriment to on-street car parking availability.
4. The Council submitted that the appellants do not get over the high hurdle of the illogicality and irrationality ground. The Council submitted that, on the evidence, "it was clearly available to the Commissioner to conclude that public access to a parking space would be diminished. The logic is simple. If the Applicant does not have a hardstand car space and so parks on the street, when the car is not there, the space is available to the public. However, if the Applicant has an off-street hardstand, the driveway takes out a public parking space whether the Applicant is using the hardstand or not".
5. I find that appellants have not established that the Commissioner's finding is so illogical or irrational as to be an error of law. As the Council submitted, there is a logic to the Commissioner's finding. The finding clearly was open on the evidence. I reject ground 16.

Ground 17: Denial of procedural fairness by not considering appellants' submission on pedestrian safety

1. Ground 17 was that: The Acting Commissioner denied the Applicants procedural fairness in his finding at [26] of the decision that the proposal would compromise pedestrian safety by failing to consider the Applicants' submission and evidence of Mr Peter Brennan, the Applicants' town planner, that the Respondent itself designs, and constructs numerous on street car spaces throughout its local government area which necessarily result in vehicles overhanging footpaths, and which do not raise or evidence pedestrian safety concern.
2. The Commissioner's finding in [26] of the judgment was that: The RDCP controls in CL3.6 requires consideration of the overall streetscape, continuity of footpaths and the need for safe pedestrian movement together with ensuring that pedestrian and cycling safety is maintained or improved. Based on Mr Higgins' opinion on which I rely, I consider the pedestrian safety will be compromised rather than maintained or improved and this contributes to the proposal's refusal.
3. The appellants noted that the reasoning of the Commissioner relied on an acceptance on the Council's traffic engineer, Mr Higgins, over that of the appellant's planner, Mr Brennan. The concern related to footpath overhang in relation to the alleged safety issues associated with the small car space.
4. The Commissioner had earlier summarised Mr Higgins' evidence in [22]: Considering the merits, I rely on Mr Higgins engineering evidence that there is a strong likelihood of the on-site parking encroaching onto the footpath area, which would reduce the road and footpath safety. I think this would be an undesirable outcome in this street where there appears to be significant competition for on-street parking and footpath use to access the school and most likely the future preschool. This is notwithstanding references to other traffic consultant's information that was discussed.
5. The Commissioner later relied on Mr Higgins' evidence in [32]: In the subject context, with enabling school and future pre-school, I consider a cautious approach to parking is reasonable and therefore I am satisfied to rely on Mr Higgins' engineering opinion which is consistent with car parking objectives to ensure that car parking doesn't pose an undue safety risk to pedestrians.

Ground 18: Inadequate reasons on pedestrian safety risk

1. Ground 18 was that: The Acting Commissioner erred in law by failing to give adequate reasons (whether at par [32] or elsewhere in the decision) for adopting as a correct analysis Mr Higgins' expert opinion that there was a pedestrian safety risk posed by the proposal, and for rejecting Mr Brennan's expert opinion that there was none, in that the Acting Commissioner expressed a preference for Mr Higgins' opinion over Mr Brennan's but did not subject the competing opinions on the existence or otherwise of any pedestrian safety risk to any rational analysis in the context of this issue as framed by the parties.
2. This ground related to the same findings in [22], [26] and [32] of the judgment that were challenged in ground 17. The appellants submitted that the Commissioner did not give reasons as to why he preferred the evidence of the Council's engineer, Mr Higgins, over that of the appellants' town planner, Mr Brennan, on the issue of pedestrian safety.
3. The appellants rejected the Council's submissions, summarised above in relation to ground 17, that the reason the Commissioner preferred Mr Higgins' evidence on pedestrian safety issues was that he was an engineer. The appellants submitted that the Commissioner did not expressly say this, or that Mr Higgins was the only qualified expert, being an engineer, to express an opinion on matters of pedestrian safety, or that Mr Brennan, as a planner, was not qualified to express an expert opinion on matters of pedestrian safety.
4. The appellants denied that the appellants' barrister had remained mute on whether Mr Brennan should be preferred over Mr Higgins on pedestrian safety. The Council's solicitor had not submitted to the Commissioner that Mr Brennan was not qualified to give evidence on pedestrian safety and hence there was no call for the appellants' barrister to say anything about that matter. The Council's solicitor also had not submitted to the Commissioner that Mr Brennan's evidence on pedestrian safety should be disregarded. As a result, the Commissioner was left in the position where he was required to deal with the competing expert views. The Commissioner, however, did not do so in his reasons for judgment. The Commissioner failed to subject the competing expert evidence to rational analysis: Boral Cement Pty Ltd v SCHAG Pty Ltd [2013] NSWLEC 203 at [63]. The appellants submitted, therefore, that the Commissioner's reasons were inadequate.

Conclusion and orders

1. The appellants have not established any of the eighteen grounds of appeal. The appeal should be dismissed.
2. The usual order for costs in a s56A appeal from the decision of a commissioner is that they follow the event: see s98 of the Civil Procedure Act 2005 and r 42.1 and sch 1 of the Uniform Civil Procedure Rules 2005. There are no circumstances in this case justifying departure from the usual order. Accordingly, the appellants should be ordered to pay the Council's costs of the appeal.
3. The orders of the Court are: 1. The appeal is dismissed. 2. The appellants are to pay the respondent's costs of the appeal.

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