Byron Shire Council v Ardill Payne & Partners

Relevant Provisions of the Byron LEP

1. The relevant provisions of clause 4.6 of the Byron LEP are: 4.6 Exceptions to development standards (1) The objectives of this clause are as follows - (a) to provide an appropriate degree of flexibility in applying certain development standards to particular development, (b) to achieve better outcomes for and from development by allowing flexibility in particular circumstances. (2) Development consent may, subject to this clause, be granted for development even though the development would contravene a development standard imposed by this or any other environmental planning instrument. However, this clause does not apply to a development standard that is expressly excluded from the operation of this clause. (3) Development consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating - (a) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and (b) that there are sufficient environmental planning grounds to justify contravening the development standard. (4) Development consent must not be granted for development that contravenes a development standard unless - (a) the consent authority is satisfied that - (i) the applicant's written request has adequately addressed the matters required to be demonstrated by subclause (3), and (ii) the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, and (b) the concurrence of the Secretary has been obtained. …
2. The height control provides: 4.3 Height of buildings (1) The objectives of this clause are as follows - (a) to achieve building design that does not exceed a specified maximum height from its existing ground level to finished roof or parapet, (b) to ensure the height of buildings complements the streetscape and character of the area in which the buildings are located, (c) to minimise visual impact, disruption of views, loss of privacy and loss of solar access to existing development. (2) The height of a building on any land is not to exceed the maximum height shown for the land on the Height of Buildings Map.
3. The Floor Space Control provides: 4.4 Floor space ratio (1) The objectives of this clause are as follows - (a) to ensure that new buildings are appropriate in relation to the character, amenity and environment of the locality, (b) to enable a diversity of housing types by encouraging low scale medium density housing in suitable locations, (c) to provide floor space in the business and industrial zones adequate for the foreseeable future, (d) to regulate density of development and generation of vehicular and pedestrian traffic, (e) to set out maximum floor space ratios for dual occupancy in certain areas. (2) The maximum floor space ratio for a building on any land is not to exceed the floor space ratio shown for the land on the Floor Space Ratio Map. (2A) Despite subclause (2), the maximum floor space ratio for dual occupancies on land in Zone R2 Low Density Residential is 0.5:1.

Relevant principles in s 56A Appeals

1. It is inappropriate to examine the language used in the decision narrowly or to peruse the decision of a Commissioner with a view to finding error: Arrage v Inner West Council [2019] NSWLEC 85 at [63]. As was stated in Brimbella Pty Limited v Mosman Municipal Council (1985) 79 LGERA 367 at 368: …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.
2. A decision must be examined by giving it a fair and careful reading. If upon such an examination it can be determined that a particular issue has been dealt with, albeit that cryptic language is used, no error of law is disclosed: Martin & Spork Pty Limited v South Sydney City Council (1999) 103 LGERA 213 at 217.
3. The error of law asserted may only have the effect of reversing the decision of the Commissioner in circumstances where it had a material effect on his or her decision. The error must be one upon which the decision depends, that is, one that, if wrong, vitiates the decision: Guideline Drafting & Design v Marrickville Municipal Council (1988) 64 LGRA 275 at 280.
4. Even a perverse or unreasonable finding of fact will not constitute an error of law: Randwick City Council v Manousaki (1988) 66 LGRA 330 at 333.
5. Proceedings before Commissioners are adversarial in nature and a Commissioner is bound to give reasons on the thought processes undertaken in making the decision and must determine the principal contested issues joined between the parties: Segal v Waverley Council (2005) 64 NSWLR 177 at [44].

Ground 1 - Did the Commissioner form the necessary opinion required by cl 4.6(4)(a)(ii) with respect to objective 4.3(1)(a) of the Byron LEP?

Council's Submissions

1. The Council contends that the Commissioner formed the opinion that the Objective did no more than restate the requirement for compliance with the height standard and by making that finding put the Objective aside and did not consider it. It is submitted that by making that finding there are two consequential legal errors disclosed by the Commissioner's Reasons: 1. Firstly, she failed to satisfy herself that the development was in the public interest because it was consistent with the objectives of the height standard (as she, in effect ignored the Objective) as required by cl 4.6(4)(a)(ii); and 2. Secondly, by finding that the Objective was not to be considered, she could not have satisfied herself, as was required by cl 4.6(4)(a)(i) that the Height Objection adequately addressed the requirement to justify that compliance with the standard was unreasonable or unnecessary as the Height Objection relied on consistency with the objectives of the height control as the justification for the non-compliance.
2. Each of these submits consequences turn on whether the Commissioner did in fact erroneously find that the Objective was to be disregarded and if she did so whether such a disregard was an error of law.
3. The Council asserts that paragraph [150] of the Commissioner's Reasons is the only part of her judgment dealing with the Objective and that [151] evidences her disposal of the Objective with her consideration being limited to [150]. The relevant paragraphs cited provide: 150 In terms of the objectives of the height standard, cl 4.6 would have no work to do in allowing height exceedences (sic) if the first objective meant the specified maximum height always had to be met. 151 Accepting, therefore, that breaches can be considered providing cl 4.6 requirements are met, the written request addresses the remaining two objectives of the standard.
4. The Council submitted that in order to properly satisfy herself as to consistency with the Objective she was required to undertake: …a consideration of the features of the building design in respect of the maximum height (Council Submissions at [5.6]).
5. In the alternative it submitted at [5.8]-[5.9] of its submissions that even if the Objective did mean that the building was required to comply with the height standard the Commissioner was still required to be satisfied that the development proposed was consistent with the Objective by considering the nature and the extent of the inconsistency with the maximum height standard associated with the building design.
6. The Council also submits that the Commissioner did not consider how the written request dealt with the Objective, rather approached the matter by disregarding the application of the Objective, thereby also erring in the satisfaction required by cl 4.6(4)(a)(i). The Council accepted that the Commissioner's Reasons do refer to building design as is called up by the Objective but submitted that her references were not in the context of dealing with the Objective but rely upon building design to consider the balance of the objectives of the height standard.
7. In oral address Senior Counsel for the Council accepted that where an objective of a development standard is inapplicable or merely requires compliance with the development standard (and no more) it would not be an error for a consent authority not to determine consistency with such an objective. It was accepted that if the Objective of the height standard did no more than require compliance with that standard the Commissioner was not in error in the manner in which she dealt with that objective and cl 4.6(4)(a) and (b).
8. The Council, sought to distinguish the Objective from a mere requirement for compliance by contrasting the operative provision of the height control in cl 4.3(2) and by way of example the FSR standard provision in 4.4(2A) from the Objective. It was said that if mere compliance was what the Objective intended it would have said so in plain words and not imported the concept of building design.
9. The Council accepted that a fine-toothed comb approach was inappropriate but also stressed that the reasons should be given their own meaning and could not be construed in a manner that, in effect, required a redrafting of the Commissioner's words to give them meaningful effect.
10. Senior Counsel for the Council also agreed with the submission made by Senior Counsel for Ardill Payne that the Commissioner's Reasons, to the extent they rely on the Height Objection, permitted a consideration of the terms of that objection, as part of her reasoning, in the determination of this s 56A Appeal.

Ardill Payne's Submissions

1. Ardill Payne submitted that the approach taken by the Council was a fine toothed comb approach and that the whole of the judgment needed to be read to provide the context and meaning to the paragraphs upon which the Council relied. When the Commissioner's Reasons were read as a whole the following conclusions were to be drawn: 1. The Commissioner correctly formulated the relevant test for the determination of the Height Objection at [139]-[144] including by appropriate reference to the decision in Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118 (Initial); 2. The Commissioner expressly (and correctly) identified and incorporated into her reasons Ardill Payne's Height Objection and that the Commissioner's Reasons should be read as adopting, where referred to, the relevant parts of the Objection.
2. It was submitted that the Commissioner did form the requisite opinion required by cl 4.6(4)(a)(i) and(ii) in that either: 1. she satisfied herself that the Objective of the height standard (even if the Council's construction of what was required to demonstrate consistency with the Objective was adopted) was met; or 2. that on a proper construction of the Objective there was no requirement for the Commissioner to make any finding in relation to consistency with that objective as it merely required compliance with the height standard and was therefore irrelevant to require consistency when relying on cl 4.6 to vary the standard.
3. In support of the first of these submissions Ardill Payne took the Court to the Commissioner's Reasons and the Height Objection referred to in those Reasons to demonstrate that the Commissioner did not disregard the extent of the height non-compliance but did consider building design in particular as it related to that context. Particular reliance was placed upon the following statements in the Commissioner's Reasons to support this submission: The height breaches are associated with rooftop uses which are amenity features of a proposed tourist hotel, described as a 'boutique' hotel of only 24 rooms. These uses are to be, reasonably in my view, accessed by a lift and served by amenities. The rooftop uses include a bar. However, the bar can only be patronised by hotel guests and diners of the ground floor restaurant, and the use of which will be managed and monitored in a 3 year trial, by conditions of consent, and by a Plan of Management: [154]. It was agreed that the portions of the development in breach of the height will be largely imperceptible from Marvell Street, being located adjoining the existing building at 6 Marvell Street which has elements over the third storey to a similar height. Most of the development is below the maximum height limit and well setback from Marvell Street, the adjoining lane and lower scale development to the west. The Council accepted that the lift overrun would breach the height even if these facilities were deleted and the development was otherwise compliant with the height limit. Such a breach in isolation was indicated as likely to be acceptable to the Council: [158]. Part of the justification provided in the cl 4.6 request, and in my view one of the strongest environmental planning ground stated for the height breaches (other than the height of the adjoining building at 6 Marvell Street), is that facilities that would reasonably be expected in a boutique hotel (such as a pool and bar) would generally be provided at ground floor level but have been relocated to the roof in order to provide public amenity at the ground level. This comprises a tree-lined through site link for pedestrians and cyclists activated by the adjoining ground floor restaurant and hotel foyer and containing cycle racks. The through site link will not only provide public amenity but is a feature encouraged by the Town Centre Master Plan and will, in my view, offer a substantially improved pedestrian and cycle link than the current use of the existing adjoining laneways, particularly associated with the youth hostel and language school in Marvell Lane. That this design outcome can be achieved with only height breaches in a largely screened location, and with generous setbacks resulting in no adverse amenity impacts to adjoining neighbours (in terms of loss of privacy or overshadowing), is a positive environmental planning ground. I also do not accept that the design of the development or use of the rooftop area in the manner proposed will add anything but positive elements in the streetscape and locality: [160]-[162]. In contrast, the architectural design and appearance of the proposed building were not issues in contention, with the building described by the applicant as of high quality design accommodating a boutique hotel. Such a building could only be considered to complement (sic) the streetscape and the character of the area, in particular the desired future character of the locality. The Town Centre Master Plan shows how the area could reasonably be redeveloped over time in response to the current controls, and the height of the proposed development would be appropriate in this context. The height will also allow public use of the ground floor area enhancing the streetscape and area. It is, in my view, as important to have a quality design as a numerically compliant one. Whilst it could be that both are achievable on the site, there was no evidence of this. There was however, evidence of the applicant responding to the Master Plan and to the height of an adjoining building, in a more appropriate way than that adjoining building has responded to its context. As indicated, the height breaches will not be visible from the street nor to any significant degree from public vantage points in the vicinity. The site is also in the vicinity of other buildings which, even if not technically 4 storeys, have elements or features above a habitable third storey. I was also not satisfied, on the evidence, that these elements are architectural roof features or are acceptable for that reason. Even if what is proposed constitutes a fourth storey, it is only a partial storey, and there are no storey controls required to be complied with. Further, each application is required to be considered on its merits. In this instance given the circumstances, including the building's design, site context, nature of uses and public benefits offered, there are sufficient environmental planning grounds provided to support the breaches sought. I also accept the applicant's argument that an environmental planning ground is the requirement to design in response not only to existing and likely future development, but having regard to the topography of a flood affected site: [169]-[174].
4. It was submitted that these parts of the Commissioner's Reasons disclose that the Commissioner undertook the task the Council asserts was required to be undertaken in order to be relevantly satisfied as to consistency with what it contended was the inquiry required to assess satisfaction with the Objective.
5. It was further submitted that the Commissioner, by adopting the reasoning in the Height Objection, was adopting the analysis of building design referred to in the relevant parts of that Objection, namely that the building was designed such that even with the height exceedance the building was not likely to be perceived as exceeding the height control. In this regard, particular reference was made to the Commissioner's Reasons at [36]-[37].
6. Alternatively, it was submitted that the Commissioner was not required to be satisfied of consistency with the Objective as all it required was compliance with the height standard. It submitted that the reference to the notion of building design was not a phrase that transformed the Objective to an analysis of building design as contended for by the Council but rather merely identified the tool that was to be deployed to ensure compliance. It was submitted that the Council's construction of the Objective was not open on the clear words of the Objective.

Findings on Ground 1

1. I accept the reasons in the submission of Ardill Payne that the Commissioner did make the relevant findings with respect to the Objective as required by cl 4.6(4)(a)(i) and (ii).
2. The Commissioner's Reasons, considered as a whole, indicate that she performed these functions in the manner contended by Ardill Payne. I consider it to be inappropriate to focus solely in the one paragraph in the Commissioner's Reasons to understand the entirety of her reasoning. Whilst the Commissioner's Reasons are in some respects not sequential and/or with some looseness of expression, the reasons when read as a whole, without an eye for error, discloses the reasoning and the findings of satisfaction required.
3. Of particular significance to this finding is that the Commissioner expressly found that the Height Objection met the requirements of cl 4.6(3) at [141]. When the Height Objection is considered in its terms it clearly states at [10.1] [Appeal Book page 839] that: The first Objective 1(a) is, in part, a restatement of the height control. As the development exceeds the height control - which gives rise to this written request- it cannot be said that the building "does not exceed [the] specified maximum height". However, the "building design" is one that respects and responds to the height control. In addition to the matters noted below, the building has been designed so that its perception is that it does not exceed the height limit.
4. This statement in the Height Objection is considering the very manner of consistency that the Council contends is required to satisfy the requirements of cl 4.6(4)(a)(i). The Commissioner does not qualify her support for the statements made in the Height Objection, it would, therefore, be inappropriate to read the Commissioner's Reasons as if she adopted only part of the Height Objection justification. If that was what was intended it would be expected that references would have been made to her rejection of that part of the Height Objection. I find that this consideration of the Commissioner's Reasons is reinforced by the reference at [36] that restates in terms the substance of the reference at [10.1] of the Height Objection.
5. Therefore, I find that the Commissioner did not err in accepting that the Height Objection satisfactorily addressed the requirements of cl 4.6(3). In forming such satisfaction I find that the Commissioner did not ignore a consideration of consistency with the Objective of the height standard, but considered the Height Objection in its terms, which included a consideration of the Objective.
6. Further, whilst the Commissioner's Reasons could have been better expressed, it is apparent that she considered building design in the context of the height standard. Of particular significance to this finding is the Commissioner's acceptance at [158] that the building was designed such that the non-compliance with the height standard would be largely imperceptible and her findings at [161]-[162] that: 161 That this design outcome can be achieved with only height breaches in a largely screened location, and with generous setbacks resulting in no adverse amenity impacts to adjoining neighbours (in terms of loss of privacy or overshadowing), is a positive environmental planning ground. 162 I also do not accept that the design of the development or use of the rooftop area in the manner proposed will add anything but positive elements in the streetscape and locality.
7. These findings indicate a consideration of the building design as it relates to the non-compliances. This justification of consistency is entirely consistent with the reasons put forward in the Height Objection.
8. Further, I do not accept the Council's Submission that the references to building design in the Commissioner's Reasons must relate to consistency with the remaining objectives to the height standard. Whilst the objectives of the height standard in cl 4.3(b) and (c) of the Byron LEP may call into consideration elements of building design in achieving those objectives the phrase is not incorporated into those objectives. Further, to the extent that building design may assist in considering consistency with those objectives it is limited to the subject matter with which those objectives relate, namely: streetscape and character of the area; visual impact; views; privacy and solar access. As identified by Ardill Payne, the Commissioner's Reasons deal with building design in a manner that goes well beyond those considerations, and relates specifically to the non-compliance with the height standard.
9. Even if I am incorrect and the Commissioner did not satisfy herself as to consistency with the Objective I would not find that the Commissioner had erred at law.
10. I accept the submissions of Ardill Payne that a proper construction of the Objective indicates that the Objective merely requires compliance with the development standard. The words of the Objective are clear, whilst it contains additional language relating to the tools for achieving compliance and the means to determine compliance it does not require an assessment of building design as it relates to any area of non-compliance. To read the Objective in this way requires a redrafting of its clear terms. Whilst the language is more fulsome than it could have been the effect is the same as if the Council merely said: to achieve [a] building design that does not exceed a specified maximum height from its existing ground level to finished roof or parapet. Accordingly, even if the Commissioner committed the error asserted by the Council I do not consider the failure to form a satisfaction of consistency with the Objective of the height standard to be an error.
11. On both bases put by Ardill Payne, for the reasons outlined above, I dismiss Ground 1.

Ground 2 - Did the Commissioner form the necessary opinions as required by cl 4.6(3)(a) and (b)?

1. This ground relates to both the Height Objection and the FSR Objection. The Council contends that the Commissioner's Reasons at [143] conflate the requirement for the Objections to be unreasonable or unnecessary with the requirement for there to be sufficient environmental grounds. The relevant part of the Commissioner's Reasons provides: 143 I therefore agree that compliance with the height and FSR standards is unnecessary in this instance as there are sufficient environmental planning grounds to warrant the breaches sought. (emphasis added)
2. This ground turns on the use of the word "as" in that paragraph. It is said by the Council that in order to have been satisfied (as required by cl 4.6(4)(a)(i)) that the written Objections adequately addressed the matters required by cl 4.3 the Commissioner would have had to use the word "and" instead of "as".

Council's Submissions

1. The Council submits that paragraph [143] applies equally to each of the Height Objection and the FSR Objection. Therefore, if I accept the Council on Ground 2 the error is disclosed in the consideration of both Objections. Conversely, if I do not accept the Council's position on this ground both Objections were appropriately determined.
2. The Council accepts that in some circumstances there will be an overlap of considerations necessary for justification as an unreasonable or unnecessary ground and sufficient environmental planning grounds. It accepted that in this case as the Objections relied upon satisfaction with the standards of the control as demonstrating unreasonableness or unnecessary compliance, the factors that the objectives called up for consideration could also be environmental planning grounds. This overlap, however, it is submitted still required the Commissioner to be satisfied that each of the factors nominated in cl 4.6(3) have been satisfactorily addressed and this requirement cannot be met without considering each of the two factors nominated in that clause independently (even where the subject matter overlaps).
3. By the use of the word "as" in [143] it is said that the Commissioner: impermissibly rolled together two matters required to be demonstrated by cl 4.6(3)(a) and (b). For that reason, legal error affected the formation of the opinion required by cl 4.6(4)(a)(i): Council's Submissions at [5.13].

Ardill Payne's Submissions

1. Ardill Payne submits that the Commissioner's Reasons when read as a whole do not disclose error and that [143] of the Commissioner's Reasons needs to be read in the context of the surrounding paragraphs. It is said that an appropriate context is derived from reading [141]-[143] which provides: 141 Clause 4.6 written requests for both the height and FSR breaches were submitted and amended to reflect the amended application. The requests address the objectives of the standards and of the zone and provide environmental planning grounds to support the breaches sought. 142 For the reasons that follow, I am satisfied that the requests meet the requirements of cl 4.6 and justify the variations to the standards sought and the degree of flexibility to vary the standards provided by cl 4.6(1)(a) is appropriate to apply in the circumstances, providing a better outcome for and from the development. 143 I therefore agree that compliance with the height and FSR standards is unnecessary in this instance as there are sufficient environmental planning grounds to warrant the breaches sought.
2. This context, it is said, identifies that the Commissioner understood that the factors of unreasonable or unnecessary and environmental planning grounds were different but overlapping and the reading of the "as" as being something other than "and" was to apply a fine-tooth comb approach and unreasonably confined meaning to the Commissioner's Reasons.
3. It was further contended that the Council was requiring the Commissioner to undertake an overly "box-ticking" process that was not warranted either by the terms of cl 4.6 or the authorities in Initial or MH Rebel Neutral Bay Pty Limited v North Sydney Council [2019] NSWCA 130. Provided all elements that are required to enliven jurisdiction are addressed in the Commissioner's Reasons there can be no criticism of form or format: Ardill Payne Submissions at [4.3].

Findings on Ground 2

1. For the reasons identified by Ardill Payne I do not consider that the Commissioner has impermissibly conflated the two requirements such that she failed to form the relevant satisfaction required by cl 4.6(4)(a)(1).
2. I consider that the attention required to be placed upon a single word in a single paragraph of the Commissioner's Reasons that comprised some 214 paragraphs to be an impermissible fine tooth comb approach, reading the reasons with a view to error.
3. Again, the loose language adopted by the Commissioner in her reasons is unfortunate but in circumstances where the Commissioner in the immediately preceding paragraph identified the correct formulation of words (i.e. she uses "and" between each concept) it would be a strained reading of the next following paragraph (where she is indicating satisfaction that the written objections provide justification for the variations) to apply a different formulation of the relevant test. Further, in the opening words of [143] the Commissioner expresses agreement with the summary she outlined in [142], again, it would be inexplicably inconsistent for the Commissioner to be expressing agreement with something other than what she had just formulated in [142]. Whilst I accept that the Commissioner did use the word "as" in that paragraph, I do not consider that the interpretation undertaken by Ardill Payne and adopted by me requires an impermissible rewriting of the Commissioner's Reasons, rather the approach taken is consistent with the observations of Kirby P in Brimbella referred to at [10] above.
4. For those reasons, together with those raised by Ardill Payne, I find that the Commissioner did not err in the arriving at the satisfaction required by cl 4.6(4)(a)(1) of the Byron LEP and therefore dismiss Ground 2.

Costs

1. Neither party submitted that this was a case in which the usual order as to costs would not apply. I find that costs should follow the event and that the Council, being unsuccessful in this appeal should pay Ardill Payne's costs of the appeal.

Conclusion and Orders

1. For the foregoing reasons I find that the Commissioner did not err in law for the reasons identified in the Amended Summons. Accordingly, the Court orders that: 1. The Amended Summons dated 24 October 2019 is dismissed; 2. The Appellant pay the Respondent's costs of these proceedings; 3. The exhibits are returned.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 December 2019