Bonim Stanmore Pty Ltd v Marrickville Council

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; The Australian Gas Light Company v The Valuer-General (1940) 40 SR (NSW) 126; Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139; Bonim Stanmore Pty Ltd v Marrickville Council [2006] NSWLEC 771; Brimbella Pty Ltd v Mosman Municipal Council (1985) 79 LGERA 367; Bruce v Cole (1998) 45 NSWLR 163; Carstens v Pittwater Council (1999) 111 LGERA 1; CASES CITED: Design Power Associates Pty Ltd v Willoughby City Council (2005) 148 LGERA 233; Fodor Investments Pty Ltd v Hornsby Shire Council [2005] NSWLEC 71; Inghams Enterprises Pty Ltd v Kira Holdings Pty Ltd (1996) 90 LGERA 68; Masterbuilt Pty Ltd v Hornsby Shire Council [2005] NSWLEC 212; McPhee v S Bennett Ltd (1935) 52 WN (NSW) 8; Randall Pty Ltd v Willoughby City Council (2005) 144 LGERA 119; Randwick Municipal Council v Manousaki (1988) 66 LGRA 330; Roads and Traffic Authority v Hurstville City Council (2001) 112 LGERA 223; Terrace Tower Holdings Pty Ltd v Sutherland Shire Council (2003) 129 LGERA 195

APPLICANT: Mr I J Hemmings SOLICITORS: Landerer and Company LEGAL REPRESENTATIVES: RESPONDENT: Mr A Galasso SC SOLICITORS: Marrickville Council

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

JUDGMENT 1 HIS HONOUR: On 13 December 2006, Commissioner Hoffman dismissed an appeal against the respondent council's deemed refusal of a development application for the demolition of a vacant building and the erection of a supermarket on Stanmore Road, Stanmore: Bonim Stanmore Pty Ltd v Marrickville Council [2006] NSWLEC 771. The land enjoyed the benefit of existing use rights and the appeal to the Commissioner was with respect to a proposal which was otherwise prohibited. As the application was lodged before changes to the provisions relating to existing use were made by the Environmental Planning and Assessment Amendment (Existing Uses) Regulation 2006, those changes did not affect this development application: cl 286D(2)(a) Environmental Planning and Assessment Regulation 2000. 2 The applicant now appeals against the Commissioner's decision to a Judge of this Court under s 56A of the Land and Environment Court Act 1979 (Court Act). Such an appeal is limited to a "question of law".

COMMISSIONER'S JUDGMENT 3 After describing the site, the development proposal, the locality, the statutory controls, the issues and the evidence, the Commissioner expressed his conclusions and reasoning briefly at [62] to [66] of his judgment as follows: 62. In coming to a conclusion on this matter, I bear in mind that the proposal is far in excess of that size and creates a new traffic generator on a main road that carries about 24,000 vehicles per day. Unlike the club, the supermarket would generate traffic in peak periods not out of peak. It would cause, through additional turning movements, a reduction in the efficiency of the main road that in the future must carry ever more traffic.

63. In considering the various retail and commercial and institutional uses scattered between Holt Street, Merton Street and the local shopping centre on the south of Stanmore Railway Station, I could not come to the conclusion that it is a higher order centre of a dispersed nature as submitted by the applicant.

64. It is obvious from the government documents that good planning would require locations for new supermarkets within existing centres or designated new centres, or on the edges of such centres such that consolidation of the centre might occur.

65. The subject proposal is neither of the first two scenarios, and to achieve consolidation of South Stanmore as a centre would require rezoning of several city blocks to a zone for General Business. That is obviously not the intention of the Marrickville Local Environmental Plan.

66. I have concluded that Issues 2 and 6 are crucial and determinative and that the proposal must be refused. The " government documents " referred to at [64] of the judgment were the documents which lay behind draft State Environmental Planning Policy 66 (draft SEPP 66). GROUNDS OF APPEAL 4 There are six grounds of appeal as follows:
67. The Commissioner erred by giving determining weight to the provisions of draft State Environmental Planning Policy 66 (Integration of Land Use and Transport).
68. The Commissioner erred by giving weight to the relevant provisions of Part 5 of the Environmental Planning and Assessment Regulation 2000, which were amended by the Environmental Planning and Assessment (Existing Uses) Regulation 2006.
69. The Commissioner erred in ascribing weight to the object of the Residential 2 (A) zone in Marrickville Local Environmental Plan 2001.
70. The Commissioner erred in ascribing weight to the fact that the proposal would have a gross floor area of more than 100 metre squared and thus could not be given consent under Clause 38 (2) of Marrickville Local Environmental Plan 2001.
71. The Commissioner erred in law by finding (at [27]) that the oral evidence of Mr Pindar was that on a matter of public interest it is wrong to put a traffic generator such as the proposal on a main road due to the need to keep such thoroughfares free-flowing and as safe as possible, especially with future growth of traffic in mind when there was no such oral evidence.
72. The Commissioner erred in law (at [62]) in finding that the proposed development would cause, through additional turning movements, a reduction in the efficiency of the main road that in the future must carry ever more traffic when there was no evidence that the road in the future would carry ever more traffic. 5 The applicant grouped these grounds of appeal into two broad categories. First, grounds one to four where it was said that the Commissioner erred in law by taking into consideration irrelevant matters. Secondly, grounds five and six (both dealing with traffic matters) where it was said that the Commissioner erred in law by making findings of fact that were not available to him.

6 It is appropriate to apply the approach of Kirby P in Brimbella Pty Ltd v Mosman Municipal Council (1985) 79 LGERA 367 (CA) at 368: …I believe that it is undesirable in an appeal from a lay tribunal, where the appeal court is confined to a question of law, that it should examine too narrowly the words used in the decision, at least unless these words are central to the decision involved…

Here, the parliament has specifically envisaged a tribunal which included lay assessors. It would be quite wrong, in my opinion, for this Court to examine their decisions as if they were written by a lawyer. I am not, by these comments, suggesting double standards; simply that the Court should take into proper account the composition of the tribunal, as it has been created by the parliament. 7 This approach was adopted by Lloyd J on an appeal from a Commissioner in Carstens v Pittwater Council (1999) 111 LGERA 1 at [68] and [76], where his Honour deprecated an overly critical and pernickety examination of a Commissioner's reasons on an appeal on a question of law to a judge. A QUESTION OF LAW 8 The council submitted that several of the grounds of appeal do not involve a question of law and are therefore outside s 56A of the Court Act. 9 In The Australian Gas Light Company v The Valuer-General (1940) 40 SR (NSW) 126 at 137 - 138 Jordan CJ said (omitting citations): In cases in which an appellate tribunal has jurisdiction to determine only questions of law , the following rules appear to be established by the authorities: (1) The question what is the meaning of an ordinary English word or phrase as used in the Statute is one of fact not of law. This question is to be resolved by the relevant tribunal itself, by considering the word in its context with the assistance of dictionaries and other books, and not by expert evidence; although evidence is receivable as to the meaning of technical terms; and the meaning of a technical legal term is a question of law. (2) The question whether a particular set of facts comes within the description of such a word or phrase is one of fact. (3) A finding of fact by a tribunal of fact cannot be disturbed if the facts inferred by the tribunal, upon which the finding is based, are capable of supporting its finding, and there is evidence capable of supporting its inferences. (4) Such a finding can be disturbed only (a) if there is no evidence to support its inferences, or (b) if the facts inferred by it and supported by evidence are incapable of justifying the finding of fact based upon those inferences , or (c) if it has misdirected itself in law. Thus, if the facts inferred by the tribunal from the evidence before it are necessarily within the description of a word or phrase in a statute or necessarily outside that description, a contrary decision is wrong in law. If, however, the facts so inferred are capable of being regarded as either within or without the description, according to the relative significance attached to them, a decision either way by a tribunal of fact cannot be disturbed by a superior Court which can determine only questions of law. (emphasis added) 10 In McPhee v S Bennett Ltd (1935) 52 WN (NSW) 8 at 9 Jordan CJ (Davidson and Stephen JJ concurring) held: The question whether there is any evidence of a particular fact is also a question of law : Sittingbourne Urban District Council v Lipton Ltd [1931] 1 KB 539 at 544 and Mersey Docks and Harbour Board v West Derby Assessment Committee [1932] 1 KB 40 at 110, 111. But if there is evidence of the fact, the question whether that evidence ought to be accepted in whole or in part, or ought to be accepted as sufficient to establish the fact, is itself a question of fact and not a question of law, unless, of course, there is some law which provides that the particular evidence, when given, is to be taken to establish the fact. If a tribunal which has exclusive jurisdiction to determine facts decides that it does not accept the evidence tendered as establishing a particular fact, its decision, apart from the exceptional case which I have just mentioned, is conclusive. In that case the party upon whom the burden of proving the fact lies must fail. There is no rule of law that such a tribunal must believe the evidence, because it is all one way. It can accept all, or some, or none of it. (emphasis added). 11 Those cases were cited in Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 (CA) at 155 - 157 by Glass JA (with whom Samuels JA agreed). Glass JA said at 155G: To say of a finding that it is perverse, that it is contrary to the overwhelming weight of the evidence, that it is against the evidence and the weight of the evidence, that it ignores the probative force of the evidence which is all one way or that no reasonable person could have made it, is to say the same thing in different ways. Upon proof that the finding of a jury is vitiated in this way, it will be set aside because it is wrong in fact. Since the Act does not allow this Court to correct errors of fact, any argument that the finding of a Workers' Compensation Commission judge is vitiated in the same way discloses no error of law and will not constitute a valid ground of appeal. It is also pointless to submit that the reasoning by which the court arrived at a finding of fact was demonstrably unsound as this would not amount to an error of law… (emphasis added) 12 In Azzopardi Kirby P, although in disagreement in other respects in relation to what constitutes a question of law, seems not to have been in disagreement with the majority when he said at 151: The finding of what have been called the primary facts of a case does not, in itself, expose the trial judge to review on a point of law, unless it can be shown that there is no evidence of a primary fact and that, this being crucial to his decision, the judge's fact finding has involved an error of law. (emphasis added) 13 In Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355 - 356 Mason CJ (with whom Brennan J agreed) said: The question whether there is any evidence of a particular fact is a question of law : McPhee v S Bennett Ltd (46) ; Australian Gas Light Co v Valuer-General (47). Likewise, the question whether a particular inference can be drawn from facts found or agreed is a question of law: Australian Gas Light (47); Hope v Bathurst City Council (48). This is because, before the inference is drawn, there is the preliminary question whether the evidence reasonably admits of different conclusions: Federal Commissioner of Taxation v Broken Hill South Ltd (49). So, in the context of judicial review, it has been accepted that the making of findings and the drawing of inferences in the absence of evidence is an error of law: Sinclair v Maryborough Mining Warden (50).

But it is said that [t]here is no error of law simply in making a wrong finding of fact : Waterford v The Commonwealth (51), per Brennan J. Similarly, Menzies J observed in Reg v District Court ; Ex parte White (52): Even if the reasoning whereby the Court reached its conclusion of fact were demonstrably unsound, this would not amount to an error of law on the face of the record. To establish some faulty (e.g illogical) inference of fact would not disclose an error of law. Thus, at common law, according to the Australian authorities, want of logic is not synonymous with error of law. So long as there is some basis for an inference - in other words, the particular inference is reasonably open - even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place. (emphasis added)

14 In Bruce v Cole (1998) 45 NSWLR 163 (CA) at 187 - 188 Spigelman CJ (Mason P agreeing) said: (1) There is no error of law in making a wrong finding of fact: see, eg, Waterford v Commonwealth (1987) 163 CLR 54 at 77; Australian Broadcasting Tribunal v Bond (at 356); (2) An inference of fact must be open to be drawn: Australian Broadcasting Tribunal v Bond (at 356), per Mason CJ; see also Minister for Immigration and Ethnic Affairs v Teo (at 199); S v Crimes Compensation Tribunal [1998] 1 VR 83 especially at 90-91. (3) The making of findings and the drawing of inferences without any evidence to support them is an error of law : see, eg, Sinclair v Mining Warden at Maryborough (1975) 132 CLR 473 at 481, 483; Australian Broadcasting Tribunal v Bond (at 355-356). (4) Acting without probative evidence is the equivalent of no evidence. This point requires some elaboration. (emphasis added) His Honour elaborated by reference to, inter alia, Azzopardi and The Australian Gas Light Co . 15 In Carstens v Pittwater Council (1999) 111 LGERA 1 at [85] Lloyd J said: "No error of law is involved if there was a misattribution of weight to a relevant consideration". The authorities which his Honour cited included Randwick Municipal Council v Manousaki (1988) 66 LGRA 330 at 334, 335 where Clarke JA (with whom Hope and McHugh JJA agreed) said: It is also clear that questions of the weight, or relative significance, to be accorded to particular facts falls for consideration once it has been determined that different conclusions are reasonably open and are themselves questions of fact…

There was no statutory or other obligation upon the assessor to deal with each of the matters listed in s 90(1) of the Environmental Planning and Assessment Act 1979 (NSW). He was invested with the power of determining which of the factors mentioned in that subsection were relevant to the appeal being heard by him and he was also entitled to accord to those which he found relevant such weight as he concluded was appropriate.

16 In determining a development application "the weight to be given to a planning instrument does not involve a question of law, so long as legally irrelevant factors are not taken into account": Terrace Tower Holdings Pty Ltd v Sutherland Shire Council (2003) 129 LGERA 195 at [57] per Mason P (Spigelman CJ and Ipp JA agreeing). GROUND 1 17 The first ground of appeal is: the Commissioner erred by giving determining weight to the provisions of draft SEPP 66 (Integration of Land Use and Transport). 18 The applicant's submissions focussed on the Commissioner's judgment at [38] and [64] to [66]: 38. Due to the existing use rights of the subject site, the normal planning regime is held by case law to not apply. The appeal needs to be determined by considerations under s 79C of the Environmental Planning and Assessment Act 1979 , and as the evidence showed, the principle considerations arose under draft SEPP 66 -The Right Place for Business and Services.

64. It is obvious from the government documents that good planning would require locations for new supermarkets within existing centres or designated new centres, or on the edges of such centres such that consolidation of the centre might occur.

65. The subject proposal is neither of the first two scenarios, and to achieve consolidation of South Stanmore as a centre would require rezoning of several city blocks to a zone for General Business. That is obviously not the intention of the Marrickville Local Environmental Plan.
66. I have concluded that Issues 2 and 6 are crucial and determinative and that the proposal must be refused. 19 Issue 2 referred to at [66] of the judgment is relevant to appeal ground 1, and was identified in the Commissioner's judgment at [19] as follows: 2. Inappropriate use

The proposal is of a type, scale and intensity that is inappropriate having regard to:

(a) the actual surrounding land uses; (b) the likely future character of the locality; (c) the zoning of the site and surrounding land under the Marrickville Local Environmental Plan 2001; (d) the objectives, provisions and planning principles of draft State Environmental Planning Policy No. 66 (in particular, The Right Place for Business and Services Planning Policy); (e) the objective of cl 7(i) of the Marrickville Local Environmental Plan 2001 to maximise business and employment opportunities in the council's existing commercial centres. 20 The applicant submitted that the Commissioner's reliance on good planning principles in refusing the application, derogated from existing use rights in Pt 4 Div 10 of the Environmental Planning and Assessment Act 1979 (EPA Act) and that this was an error of law. This notion of "derogation" is borrowed from s 108(3) of the EPA Act which provides: (3) An environmental planning instrument may, in accordance with this Act, contain provisions extending, expanding or supplementing the incorporated provisions, but any provisions (other than incorporated provisions) in such an instrument that, but for this subsection, would derogate or have the effect of derogating from the incorporated provisions have no force or effect while the incorporated provisions remain in force.

21 Section 108(3) itself is inapplicable, if for no other reason, because draft SEPP 66 is not an environmental planning instrument: it is only a draft. The distinction between an environmental planning instrument and a draft environmental planning instrument is recognised, for example, in s 79C(a)(i) and (ii) of the EPA Act. The applicant submitted, on the premise that the Commissioner had given primacy to draft SEPP 66 principles, that if those principles had been contained in an environmental planning instrument (as distinct from a draft) they would "derogate" from the incorporated provisions and therefore would have no force or effect under s 108(3). Thus, (on the said premise) the applicant's submission is purportedly consistent with the position if s 108(3) applied. The submission was not assisted by the fact that it did not identify precisely what provision or provisions of the incorporated provisions would be the subject of derogation if draft SEPP 66 was an environmental instrument and not a draft.

22 The applicant argued that there is a competition between existing use rights under Pt 4 Div 10 of the EPA Act, on the one hand, and the principles applicable where development consent is sought for the change of an existing (prohibited) use to another prohibited use, on the other hand. In that competition, the applicant argued, existing use rights have to be given primacy: Inghams Enterprises Pty Ltd v Kira Holdings Pty Ltd (1996) 90 LGERA 68.

23 The applicant's submission, as I understand it, is tantamount to saying that good planning principles must not lead to the rejection of a development application where the land enjoys the benefit of existing use rights.

24 I do not accept the submission. The legislature has mandated that in determining a development application, a consent authority is to take into consideration the matters in s 79C of the EPA Act. Those matters include an environmental planning instrument, a draft environmental planning instrument, the likely impacts of the development, the suitability of the site for the development and the public interest. Section 79C(1) provides: 79C Evaluation

(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: (a) the provisions of: (i) any environmental planning instrument, and (ii) any draft environmental planning instrument that is or has been placed on public exhibition and details of which have been notified to the consent authority (unless the Director-General has notified the consent authority that the making of the draft instrument has been deferred indefinitely or has not been approved), and (iii) any development control plan, and (iiia) any planning agreement that has been entered into under section 93F, or any draft planning agreement that a developer has offered to enter into under section 93F, and (iv) the regulations (to the extent that they prescribe matters for the purposes of this paragraph), that apply to the land to which the development application relates, (b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality, (c) the suitability of the site for the development, (d) any submissions made in accordance with this Act or the regulations, (e) the public interest. 25 The only relevant qualification to s 79C is that which is found in s 108(3), namely, that the provisions of an environmental planning instrument that would derogate or have the effect of derogating from the incorporated provisions have no force or effect. That qualification is of no relevance to the applicant's present submission.

26 In my opinion, the Commissioner was entitled to take into account good planning principles: Terrace Tower Holdings Pty Ltd v Sutherland Shire Council (2003) 129 LGERA 195 at 209. Indeed, this authority was cited by the applicant in its submissions to the Commissioner on this issue. Planning principles such as zone objectives may be relevant in the consideration of a development application relying upon existing use rights: Masterbuilt Pty Ltd v Hornsby Shire Council [2005] NSWLEC 212 at [12] - [17] (Pain J) citing Fodor Investments Pty Ltd v Hornsby Shire Council [2005] NSWLEC 71 (Senior Commissioner Roseth).

27 Contrary to the applicant's submission, I do not accept that Inghams Enterprises Pty Ltd v Kira Holdings Pty Ltd (1996) 90 LGERA 68 is authority that existing use rights have primacy over good planning principles. In that case, Kira Holdings appealed to the Land and Environment Court against the local council's refusal of development consent for a residential subdivision adjacent to a large scale poultry industry which was an existing use. The existing development was fundamentally incompatible with the proposed residential development. Bignold J upheld the appeal and granted development consent. The Court of Appeal decided that he had erred in law in failing to consider factors arising under the then equivalent of the current s 79C of the EPA Act. It was held that one of his Honour's errors of law was that he gave primacy to the interests of the proposed development (at 75 - 76). The Court of Appeal did not say that primacy had to be given to existing use rights. Cole JA noted that Bignold J had neglected to give proper weight to ss 106 and 107 of the EPA Act. Section 107(1) (except where expressly provided in the EPA Act) provides that nothing in the EPA Act or an environmental planning instrument prevents the "continuance" of an existing use. It says nothing about a development application to change an existing use to another prohibited use. In my view, Inghams is irrelevant. 28 Further, it is doubtful whether the s 56A appeal jurisdiction can properly be invoked on this ground given the way the applicant conducted its case at the hearing. The applicant's submissions specifically addressed the provisions of SEPP 66, as did its planner, Mr Darroch. The nature of such proceedings is that Commissioners decide the issues that are put before them. It seems inappropriate to claim as an error of law that the Commissioner took into consideration a matter which was specifically submitted by the applicant to be required to be taken into account. In Design Power Associates Pty Ltd v Willoughby City Council (2005) 148 LGERA 233 at [36] Lloyd J quoted from Randall Pty Ltd v Willoughby City Council (2005) 144 LGERA 119 at [19] where Basten JA (Giles and Santow JJA concurring) said: …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. 29 For these reasons, I do not accept the applicant's submission.

30 The applicant made an alternative submission as follows. The Commissioner at [65] of his judgment appeared to suggest that the only way the development could proceed would be by a rezoning under the Marrickville Local Environmental Plan 2001. That is, the Commissioner appeared to suggest that the current zoning derogates (because of his application of the derived principles from draft SEPP 66). Consequently, the application of the draft SEPP 66 public interest principles have the effect that the Marrickville Local Environmental Plan derogated or had the effect of derogating from the incorporated provisions and therefore had no force or effect under s 108(3) of the EPA Act.

31 I do not accept the alternative submission. All that the Commissioner did at [64] and [65] of his judgment was to note that the proposed supermarket would be located on the edge of South Stanmore, that good planning would require that consolidation of that centre should occur which would require rezoning of several city blocks, and that was not the intention of the Marrickville Local Environmental Plan. I see no basis for the engagement of s 108(3).

GROUNDS 2, 3 AND 4 32 Appeal grounds 2, 3 and 4 are as follows: 2. The Commissioner erred by giving weight to the relevant provisions of Part 5 of the Environmental Planning And Assessment Regulation 2000, which were amended by the Environmental Planning And Assessment (Existing Uses) Regulation 2006. 3. The Commissioner erred in ascribing weight to the object of the Residential 2 (a) zone in Marrickville Local Environmental Plan 2001. 4. The Commissioner erred in ascribing weight to the fact that the proposal would have a gross floor area of more than 100 metre squared and thus could not be given consent under clause 38 (2) of Marrickville Local Environmental Plan 2001. 33 Appeal ground 2 is said to be based on [47] of the Commissioner's judgment. Appeal ground 3 is said to be based on [59] and [60] of the Commissioner's judgment. Appeal ground 4 is said to be based on [61] and [62] of the Commissioner's judgment. 34 In my view, when these paragraphs (other than [62]) are read in context it is clear that they are not part of the Commissioner's reasoning but are a recitation of evidence given by witnesses in the case. The judgment relevantly stated: 46 Mr Erken points out on Wednesday 29 March 2006 the NSW Government gazetted the Environmental Planning and Assessment Amendment (Existing Uses) Regulation 2006 , which changes existing use rights regarding the ongoing development and use of land. The Environmental Planning & Assessment Amendment (Existing Uses) Regulation 2006 amends the Environmental Planning and Assessment Act so that: · An existing use can no longer be changed to another prohibited use (unless the zoning is changed to permit that use) · An existing use can be changed to a use that is permissible 47 The amending Regulation contained savings and transitional provisions which provide that the amendment does not apply to applications for development in respect of an existing use that were made before the commencement of the Regulation. While the savings and transitional provisions ensure that the amending Regulation does not impact on the subject development application, the intent of the Regulation is of interest in the assessment of this development application. … 58 Mr Erken disagrees with the assertion that the Holt Street/Stanmore Road spine is an existing retail/commercial centre and said it is inappropriate to provide a reasonably large supermarket in a low density residential zone.

59 The objectives of the Residential `A' zone as described in MLEP 2001 are: (a) To identify areas suitable for predominantly single dwellings residential development, and (b) To provide opportunities for non-residential development which is of a type and scale that is compatible with the surrounding land, and (c) To enable site with an area greater than 1,500 sq m to be developed for multi unit housing. 60 Given the above-described objectives of the zone, Mr Erken questions the suitability of the site for the proposed development. While objective (b) envisages opportunities for non-residential development in the zone, this opportunity is qualified by the need for such uses to be of a type and scale that is compatible with the surrounding land. 61 Mr Erken points out that Clause 38 of MLEP 2001 relates to the use of existing commercial buildings in residential zones. Clause 38(2) of MLEP 2001 prescribes: (2) Despite any other provision of this plan, consent may be granted to the use of a building to which this clause applies for business or retail purposes provided the consent authority is satisfied that the gross floor area that will be used for those purposes does not exceed 100 sq m. 62 In coming to a conclusion on this matter, I bear in mind that the proposal is far in excess of that size and creates a new traffic generator on a main road that carries about 24,000 vehicles per day. Unlike the club, the supermarket would generate traffic in peak periods not out of peak. It would cause, through additional turning movements, a reduction in the efficiency of the main road that in the future must carry ever more traffic. 35 Thus, [47] is a recitation of the evidence of Mr Erken which starts at [46]; and [59] and [60] recite the evidence of Mr Erken which commences at [58]. That evidence was concerned with the policy behind legislative change, zone objectives and good planning principles which are relevant considerations: Terrace Tower Holdings Pty Ltd v Sutherland Shire Council (2003) 129 LGERA 195 at 209, Masterbuilt Pty Ltd v Hornsby Shire Council [2005] NSWLEC 212 at [12] - [17]. In any case, assuming that the Commissioner gave weight to that evidence, in accordance with the principles in the cases discussed earlier, questions of weight (with which appeal grounds 2 and 3 are concerned) do not involve questions of law and therefore do not fall within the appeal jurisdiction in s 56A of the Court Act. 36 As regards appeal ground 4, the judgment recites further evidence of Mr Erken at [61]. The Commissioner's reasoning commences at [62]. In stating there that he bore in mind that the proposal was far in excess of the size to which he had just referred at [61], I consider he was merely using a convenient way of indicating its size. The Commissioner's conclusion was not based on a breach, per se, of cl 38(2) of the Marrickville Local Environmental Plan 2001. It would only be upon this basis that an error of law might exist, by reference to s 108(3) of the EPA Act. The provisions of cl 38 as affecting the locality informed the Commissioner's decision as to whether the proposed development is acceptable in general planning terms. Mere reference to a provision operating otherwise in the area is not an error of law.

37 For these reasons, I reject appeal grounds 2, 3 and 4.

GROUNDS 5 AND 6 38 Appeal grounds 5 and 6 are as follows: 5. The Commissioner erred in law by finding (at [27]) that the oral evidence of Mr Pindar was that on a matter of public interest it is wrong to put a traffic generator such as the proposal on a main road due to the need to keep such thoroughfares free-flowing and as safe as possible, especially with future growth of traffic in mind when there was no such oral evidence. 6. The Commissioner erred in law (at [62]) in finding that the proposed development would cause, through additional turning movements, a reduction in the efficiency of the main road that in the future must carry ever more traffic when there was no evidence that the road in the future would carry ever more traffic. 39 The Commissioner at [66] of his judgment indicated that Issue 6 was one of two issues that were "crucial and determinative" of the development application. Issue 6 was in the following terms: Traffic impacts The proposed arrangements for vehicular ingress and egress (both patrons and delivery vehicles) are unsatisfactory having regard to: (a) the location of the site and the volume of existing ( and likely future ) traffic using Stanmore Rd; (b) the volume of traffic associated with the development. (emphasis added) 40 The applicant emphasised the words in parentheses "and likely future" in issue 6(a). At [27] of the judgment, the Commissioner summarised the oral evidence of Mr Pindar, a joint traffic expert appointed by the Court. One of the matters which the Commissioner attributed to Mr Pindar in oral evidence was the following: on a matter of public interest it is wrong to put a traffic generator such as the proposal on a main road due to the need to keep such thoroughfares free flowing and as safe as possible, especially with future growth of traffic in mind. 41 At [62] of the judgment, the Commissioner stated: In coming to a conclusion on this matter, I bear in mind that the proposal is far in excess of that size and creates a new traffic generator on a main road that carries about 24,000 vehicles per day. Unlike the club, the supermarket would generate traffic in peak periods not out of peak. It would cause, through additional turning movements, a reduction in the efficiency of the main road that in the future must carry ever more traffic. 42 During oral evidence, the Commissioner enquired of Mr Pindar: Q: …will the frequency of the lights being red increase the traffic back-up? I didn't see that dealt with anywhere in the report?

A: It was, Commissioner, in the sense that the applicant, partly at my request, examined the performance of this intersection under what I guess you might describe as worse case assumptions, which is with a fairly high generation rate. I'd also asked them to look at the possibility of growth on this road, and its been established that there is no growth. So the further modelling work that was undertaken demonstrates in fact that this intersection will operate, I think, at level of service B which is quite good. (emphasis added) 43 The one sentence that I have emboldened was the only oral evidence of Mr Pindar which touched on the future growth of traffic. It came to be given by a side-wind - as part of an answer to a question from the Commissioner. It was common ground that there was no other evidence as to the future growth of traffic. Thus, the Commissioner wrongly attributed to Mr Pindar at [27] of the judgment the words "especially with future growth of traffic in mind". This appears to be the only basis identified in the judgment for the Commissioner's conclusion at [62] that the main road in the future "must carry ever more traffic". This formed part of Issue 6 albeit it was there relegated to parentheses ("and likely future" traffic). Issue 6 was one of two issues which the Commissioner concluded were "crucial and determinative" in refusing the proposal. 44 The Commissioner was not bound to accept the evidence of an expert on a particular point or at all. Indeed, the Commissioner was not bound by the rules of evidence and could inform himself on any matter in such manner as he thought appropriate and as a proper consideration of the matter permitted: s 38(2) Court Act. However, in finding that Stanmore Road "must carry ever more traffic" the Commissioner appears to have relied solely on evidence that he attributed to an expert, yet the expert had given contrary evidence, and there was no other evidence identified to support the conclusion. The authorities discussed earlier establish that the question whether there is any evidence of a particular fact is a question of law. Here, not only was there no evidence that the road must carry "ever more traffic", there was a snippet of expert evidence to the contrary. Consequently, in my opinion, there was an error of law.

45 The error of law must vitiate the operative determination before it will ground the appeal: Roads and Traffic Authority v Hurstville City Council (2001) 112 LGERA 223 at [25]. The respondent submitted that any increase of traffic on Stanmore Road was not at the heart of the Commissioner's decision. True it is, as the respondent pointed out, that the error related to words ("and likely future" traffic) which were relegated to parentheses in Issue 6. The possibility cannot be excluded that if the matter were remitted to the Commissioner, he would arrive at the same result even absent reference to the road in the future carrying ever more traffic. However, the Commissioner made an express finding that the road must carry ever more traffic in the future, this was part of Issue 6, and he held that Issue 6 was "crucial and determinative". In these circumstances, and given the economy of language with which the Commissioner expressed himself, I am driven to the conclusion that the error vitiated the operative determination.

46 The appeal must be allowed and the matter remitted to the Commissioner for a determination in accordance with this decision. It will be a matter for the discretion of the Commissioner whether he permits or seeks further evidence on the issue of the volume of likely future traffic using Stanmore Road.

1. Appeal upheld.
2. Remit the matter to Commissioner Hoffman for determination in accordance with the decision of the Court.
3. Costs of the appeal are reserved.
4. List the matter for directions before the Registrar on 1 June 2007.

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