Brimbella Pty Limited v Mosman Municipal Council

The proceedings arise out of the approval by Assessor Brown of two development applications to build two separate residential flat buildings at 253-261 Carrington Road, Coogee ("the site"). The Council had refused each application. The grounds of appeal against Assessor Brown's decision are confined to four issues as considered hereunder.

Ground 1 - Construction of the planning instruments

The original appeal to this Court was instituted when the prevailing local environmental plan was the Randwick Local Environmental Plan No 71 Coogee Precinct ("LEP 71"). The Randwick Local Environmental Plan No 102 ("LEP 102") was also relevant but no issue arises concerning such LEP on this appeal. After conclusion of the evidence but before judgment was delivered by the assessor, the Randwick Local Environmental Plan 1998 ("LEP 1998") was gazetted on 26 June 1998. Accordingly the assessor recalled the parties for further submissions before delivering his judgment on 17 July 1998.

Clause 7 of LEP 1998 contains the following transitional provisions:-

(1) Any development application lodged but not finally determined prior to the appointed day will continue to be assessed and determined under the provisions of the environmental planning instruments that were in force immediately before the commencement of this plan

(2) However, when determining an application to which this clause applies, the Council must have regard to the provisions of this plan as if it had been exhibited under the Act but had not been made."

In considering the matters before him, Assessor Brown was mindful of his statutory obligation to "have regard to" the provisions of LEP 1998. This fact is obvious from his judgment wherein he considered the very issue of the weight which should be given to LEP 1998. The Appellant does not challenge the fact that the assessor gave due consideration to the two LEP's but says that he erred in their application. This was evident, it is submitted, in relation to his determination of the requirement concerning floor space ratio ("FSR"). Pursuant to LEP 71, Clause 34(3) made provisions for a density control as follows:-

"(3) A person shall not carry out development for the purposes of a residential flat building or building containing services apartments on land within Zone No. 2(cl) unless-

(a) each studio dwelling, small dwelling, medium dwelling or large dwelling within the building will have a minimum site area of not less than 45, 75, 105 or 145 m2, respectively..."

By virtue of this provision, a planning control existed in relation to the density of development. However, it was not a provision which dealt directly with FSR. Such control was provided for the first time by LEP 1998. Clause 32 provides in respect of residential flat buildings a maximum ration of 0.9:1.

Assessor Brown had before him the evidence of Mr Pagan, an expert town planner on behalf of the Council. According to his evidence the proposed developments would not satisfy the FSR of LEP 1998. In his opinion, LEP 1998 should be afforded additional weight than the provisions of LEP 71. Assessor Brown also had the benefit of expert evidence from Mr Hirst, consultant town planner for the Respondent. He gave evidence to the effect that the FSR was acceptable under LEP 71.

"While the zoning designation has changed between LEP 71 and the draft plan, the purpose objectives and permissible uses have not changed to any large extent. The most significant variation being the change in FSR.

Even though LEP 1998 has gazetted, the primary planning control is still LEP 71, the LEP 1998 being only a matter to be considered.

In my view, the differences between the two plans are not of that significance that would suggest that the draft plan should be preferred over LEP 71, even in relation to the FSR controls. To take this position would give greater weight to LEP 1998 than LEP 71, which is contrary to the savings provisions in Clause 7 at LEP 998."

The Appellant says that Clause 7 requires regard to be had to the provisions of both instruments when making the determination, not just one or the other. In this case there was a difference, between the two LEP's, at least in relation to FSR. The difference is not a mere adjustment. Instead a different approach was adopted in LEP 1998 compared to the pre-existing regulation.

Pursuant to Clause 7 the assessor was obliged to apply the provisions of LEP 71, but to "have regard to" the provisions of LEP 1998. He did just this. However, he did not regard the change introduced in relation to FSR as sufficient justification to warrant any departure from the application of LEP 71. His analysis reflected an exercise of his statutory duty. I do not consider that any error of law has been demonstrated.

The second ground of appeal is substantially an extension of the first ground of appeal. The Appellant submits that Mr Pagan's evidence revealed that the proposed developments were in breach of a maximum floor space ratio as specified in Clause 32(1) of LEP 1998 by as much as 33% and 39% respectively. It had been submitted to Assessor Brown that such gross departure from the requirements of LEP 1998 warranted the Court applying the standard laid down by LEP 1998 especially since there was no floor space ration control in LEP 71.

The reasons discussed above, the assessor was correct in his adoption of the requirements of LEP 71, irrespective of the fact that there may have been a substantial discrepancy between the requirements of that LEP compared to the requirements of LEP 1998. Assessor Brown applied the relevant law and "had regard to" the FSR requirements: the latter consideration did not require him to apply those standards and to reject the standards of LEP 71. Had he done so, he would have breached his obligation to consider the development applications in accordance with the provisions "of the environmental planning instruments that were in force immediately before the commencement" of LEP 1998.

As an additional ground, the Appellant asserts that, if the assessor did have regard to the requirement of Clause 32(1) of LEP 1998 he did so on a basis of a misconception that "the most significant variation" between LEP 1998 and LEP 71 was the "change in FSR". The Appellant points to the fact that LEP 71 had no such provision and that he could not have had a "proper genuine and realistic consideration" of that provisions in view of his understanding of the differences between the two instruments.

When one reads the context in which the assessor's attacked statement appears, it is apparent that he was aware that there was a change. The report of Mr Hirst which was tendered states in respect of this issue:-

"The land is zoned Residential 2(cl) under Randwick LEP 71. Residential flat buildings are a permissible use within the zone, subject to height limits, landscaped area limits and density limits. The landscape and density limits are expressed as minimum site areas for various types of dwelling."

The density provisions referred to are contained in Clause 34(3) of LEP 71 as set above.

"Mr Hirst, relies on the savings provision of LEP 1998 and concludes that it is important to look at the substance of the application rather than the numerical variance, and in this regard the current FSR is acceptable."

In order for Assessor Brown to have made the observation that the "most significant variation" was the change in FSR, he must have had a clear understanding of the manner in which density controls were applied under LEP 71 compared to the application of FSR under LEP 1998. His observation was a reflection on this very issue. The percentage differences, quoted above of 33% and 39% which were discussed in the evidence and submissions before him no doubt contributed to his observation. The use of the term "change in FSR" in these circumstances does not lead to the conclusion that Assessor Brown did not have a proper comprehension of the differences between the two instruments: on the contrary, the fact that he recognised the significant change establishes that he was aware of and understood the consequences of the changes. No error of law has been demonstrated.

Clause 8(3) of LEP 71 provides that a "consent authority shall not grant consent to the carrying out of development on land to which this plan applies unless it is of the opinion that the carrying out of the development is consistent with the aims and objectives of this plan and of the zone...". The aims and objectives of the plan in relation to residential development, as stated in Clause 5(5) include the following subparagraph:-

"(f) to retain the scale and character of streetscapes which exhibit uniformity and are of special interest."

The Appellant claims that Assessor Brown adopted a description by an expert heritage architect Mr Tropman, that the streetscape was of "general interest" rather than of "special interest". In doing so, the Appellant claims that the assessor concentrated on issues relating to heritage rather than taking into consideration other relevant, but non-heritage, aspects.

An examination of the judgment reveals that the assessor considered the impact on the streetscape. He accepted the evidence of Mr Hirst that the streetscape was not necessarily distinctive or unique, but it was different to the streetscape further up Carrington Road and to other streets and areas of residential flat buildings. The assessor also referred to the evidence of residents' concerning the importance of the streetscape. He referred to the existing vegetation but concluded that it had little or no botanic significance. He gave the aspect of vegetation only "little weight" in his determination of the value of the streetscape. He referred to the evidence of Mr Brooks, a heritage architect concerning the heritage value of certain of the residences, and of Mr Tropman. Having considered their evidence the assessor referred to the uniformity of setback and the lack of "overall uniformity". Having analysed the evidence he then considered the streetscape generally and addressed the issue of the meaning of the term "special interest". He then conclude that the area one of "general interest" only.

Based upon his analysis of the evidence, it is impossible to find any substantiation of the Appellant's submission that the assessor only addressed issues of a heritage nature when arriving at his decision. The express references to not only the heritage but also vegetation, setback, lack of uniformity in buildings support his findings that he was indeed addressing the whole of the "streetscape".

The Appellant contends that the assessor erred in law in that he failed, contrary to Section 90(1)(e) and Section 90(1)(h) of the Environmental Planning and Assessment Act 1979 to consider the question of internal privacy which will be afforded by the two separate residential flat buildings, and the question of solar access. It is claimed that the two unit blocks, when constructed parallel to each other will have little or no privacy in the living areas and balconies of the units on the northern side of the southern building which faces directly into the similar living areas and balconies of units on the southern side of the northern building.

When the development applications were first received by Council, it sought public comment and in response received twenty-five separate issues of objections. One objection, identified as No 13 in Assessor Brown's judgment, included the following:-

"13. The proposal would cause a loss of privacy to adjoining properties at 263 Carrington Road, Nos 1 and 2 Stark Street and would provide a poor standard of internal privacy."

Subsequently, when the matter came before the Court, Council formulated its list of issues which did not, in terms, specifically address the question of internal privacy. Nevertheless, this was referred to in the evidence. Mr Pagan, in his expert report, addressed the issue, observing that the balconies and windows between the two blocks would be approximately ten metres apart and that on one side the balconies and windows would be nearly one level higher. There was no adverse comment from Mr Pagan, an expert for the Council, to the effect that internal privacy was either an issue or was otherwise unacceptable. There was no expert evidence called on behalf of the developer on this issue since it had not emerged as a matter of real concern.

The assessor has visited the site, and has examined the plans. Following such assessment he concluded that the proposal was consistent "with the aims and objectives of the plan and the Residential 2(cl) zone". Further, he found that the proposal was consistent with the aims of the plan and the objectives of the equivalent Residential 2(c) zone of LEP 1998. Taking these matters into consideration, the Court concludes that there is no error of law demonstrated.

An error of law is not established by attacking statements which taken in isolation, give rise to questioning. In Brimbella Pty Limited v Mosman Municipal Council (1985) 79 LGERA 367 the New South Wales Court of Appeal cautioned against a narrow examination of words used by an assessor (see Kirby P at p 368). Such principle has been adopted by this Court: see Coles v Woollahra Municipal Council (1986) 59 LGRA 133 at 138; Randwick City Council v Crawley (1986) 60 LGRA 277 at 283; Flevaris & Anor v Hurstville City Council (unreported, NSWLEC, 10079/98, Lloyd J, 7 August 1998). I do not consider that the assessor lacked any understanding of the correct facts or law. There has been no error or mistake. This Court will intervene in respect of an assessor's decision only when the Court is satisfied that the matters complained of result in a miscarriage of law. This standard has not been established in these proceedings.

(2) The Appellant pay the Respondent's costs of this appeal.

(3) The exhibits be returned except Exhibits C, D and 2.

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