Carstens v Pittwater Council

The Commissioner departed from the rules of procedural fairness during and following a view of the site. I propose to first consider the three principal grounds of appeal identified by Mr Tomasetti and then to consider the remaining grounds upon which the applicant relies.

The Commissioner took into account irrelevant considerations, namely certain draft development control plans and a policy document.

The applicant submits that the Commissioner erred in holding that the following were relevant documents and in according them any weight:

· Draft Pittwater Development Control Plan No LP24; · Draft Pittwater Development Control Plan - Conservation of Biodiversity in Pittwater; · Draft Pittwater Management - Koalas and Other Threatened Fauna in Pittwater; · A Statement of Objectives by Pittwater Council - Environmental Values Statement - Urban Development.

The Commissioner considered the relevance of the abovementioned documents in the following passage: As a circumstance of the case the following draft development control plans may be given some weight in the determination of this matter. However, Mr Tomasetti representative of the applicant urged the Court that these draft plans are irrelevant as they are not specifically referred to in s 79C of the Environmental Planning and Assessment Act 1979. The Court does not subscribe to this view and has had regard for the decision in Concrite Pty Limited v South Sydney City Council (Appeal No 10515 of 1997 Sheahan J 18 December 1998) and has considered these documents as a circumstance of the case. It is interesting to note that the draft plans and Values Statement were not referred to in the s 149 Certificate dated 3 June 1999 for the land. Thus the weight to be given to these documents must be limited.

In his consideration of the merits of the proposed development the Commissioner accepted the opinions of expert witnesses, whose opinions were in turn based upon the content of the abovementioned documents. After concluding that the development application should fail, the Commissioner said: In coming to this conclusion I have given little weight to the draft DCP's. These drafts are not specifically referred to in s 79C of the Act and at best may be given weight as a circumstances of the case. I consider that these draft DCP'S have little certainty of imminence. However the thrust of these plans is to pay heightened regard for the natural environment and to strike a balance between the man-made and the natural environment. Thus the draft DCP's would not conflict with the conclusion I have reached.

The decision in Concrite Pty Ltd v South Sydney City Council , to which the Commissioner referred, is a judgment of Sheahan J (18 December 1998, unreported). One of the issues in that case was the relevance of a draft Masterplan, which had neither statutory force nor the status of a draft development control plan. Sheahan J said (at 27): 91. The Masterplan clearly relates to planning issues that have been developed in accordance with the objectives of the EPAA regarding public participation and co-ordinated use and development of land.

92. The weight which should be attributed to that Masterplan is a legitimate subject of debate, but, as a matter of law, the Court should not be expected to determine this application as if the Masterplan did not exist.

Sheahan J also said (at 35): 119. However, the consistent attitude of this Court, when dealing with documents such as the one involved in this case, has not been to adopt a firm principle that the Court cannot lawfully consider them as a circumstance of the case, but rather to consider that the proper question is how much weight should be attributed to them, on the particular facts of each case.

Concrite concerned, inter alia , the application of s 90(1)(q) of the Environmental Planning & Assessment Act 1979 ("the EP&A Act") which provided that a consent authority, in determining a development application, must take into consideration the circumstances of the case. That requirement was omitted from the Act in 1998. The matters for consideration are now set out in s 79C(1), which is as follows: 79C Evaluation

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, 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,

In Mr Tomasetti's submission, none of the draft development control plans ("DCPs") nor the Values Statement were in force or had been adopted by the Council, neither are they to be taken into consideration: s 79C(1) of the EP&A Act specifies the instruments and draft instruments to be taken into consideration and which do not include those described. Mr Tomasetti submits that the Act, properly construed, is a complete code and that the consideration by the consent authority (in this case the Commissioner) of a draft DCP or other document of a kind not referred to in s 79C(1) is ultra vires . He referred to Howard Hargrave Pty Ltd v Penrith Municipal Council (1958) 3 LGRA 260 and to Ian Turner Partners (NSW) Pty Ltd v Lane Cove Municipal Council (1985) 57 LGRA 224. Mr Tomasetti submits that the reference in subsection 79C(1)(e) to the public interest is not a justification for permitting the Court to consider any document the Council wishes. Finally on this issue, Mr Tomasetti submits that the consideration of an irrelevant matter, namely the draft DCPs, and the attributing of any weight thereto is an error of law (relying upon Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24).

In the submission of Mr B J Preston, appearing for the respondent, the applicant can only succeed on this ground if the documents are irrelevant; that is to say, if they are documents which the Commissioner was bound to ignore ( Peko-Wallsend at 40). The Commissioner would be bound to ignore the documents if the Act expressly or by necessary implication states that those matters are extraneous to the power to determine the development application. Section 79C(1) does not expressly state that the documents considered by the Commissioner should not be considered. Neither does the section by necessary implication require a conclusion that the documents considered by the Commissioner are irrelevant, having regard to the subject matter, scope and purpose of the Act. In this respect Mr Preston relies upon the objects of the Act (s 5); the fact that development applications and supporting documents may include a discussion of matters in addition to those in s 79C(1); submissions from both the public and public authorities may include a discussion of matters in addition to those in s 79C(1); the Council may require additional information about a proposed development that is essential to a proper consideration thereof (clause 48, Environmental Planning & Assessment Regulation ); the matters in s 79C(1) are generic and open ended categories the type and content of which must vary depending on the circumstances of the case and the policy considerations of the decision-maker; and the fact that one of the matters in s 79C is the public interest, which suggests a desirability to take into account the latest and best informed expert opinion as to what should and what should not be permissible development on the subject land, irrespective of whether such material has reached the status of being formally exhibited or made. In Mr Preston's submission, the Court would not conclude that the legislature intended that the Commissioner was bound to ignore a document in question which contained information and material relevant to his consideration.

Mr Preston also relies upon s 39(4) of the Court Act, which requires the Court in making its decision in respect of an appeal to have regard to " the circumstances of the case ". Finally on this issue, Mr Preston submits that the Court would conclude from the White Paper and from the contemporaneous guideline to s 79C issued by the Department of Urban Affairs & Planning that the Commissioner had a discretion to take into account the documents which he did. In this respect Mr Preston relies upon s 34 of the Interpretation Act 1987.

In considering these submissions it is to be noted that the draft DCPs and other policies adopted by a consent authority were relevant matters for consideration under the repealed s 90 of the EP&A Act. Paragraph (q) of s 90(1) required the consent authority, in determining a development application, to take into consideration " the circumstances of the case ". Paragraph (q) was relied upon in Concrite , for example, as the provision which enables the draft Masterplan in that case to be taken into consideration. There is now no equivalent to paragraph (q) in s 79C(1).

The judgment of Sugarman J in Howard Hargrave Pty Ltd v Penrith City Council (1958) 3 LGRA 260, upon which Mr Tomasetti relies, concerned applications for the subdivision of land. Section 333 of the Local Government Act 1919 set out a list of the matters which the Council must take into consideration on any application for approval of a subdivision of land. The Council sought to oppose the applications upon several grounds of public interest. Public interest was not one of the matters listed in s 333. Sugerman J said (at 262): In my opinion these grounds were not available to the Council, and are not available to the Court, as grounds for refusing the applications. Section 333 is, in my opinion, exhaustive of the considerations which may be taken into account, subject only to the possibility that in particular cases further considerations may be available under some other provision of the Act or the ordinances therein relevant; ...

Sugerman J also said (at 263): It is much more likely that s 333 was intended as an exhaustive enumeration of the matters for consideration, to be added to from time to time by amendment, as in fact it has been added to, as occasions should require.

In Ian Turner Partners v Lane Cove Municipal Council , also relied upon by Mr Tomasetti, one of the questions was whether an assessor of the Court (as Commissioners were then called) had erred in referring to a draft local environmental plan and a draft development control plan. Cripps J said (at 228-229): Miss Blackman submits that a proper construction of s 90 of the Environmental Planning & Assessment Act 1979, requires a conclusion that draft environmental planning instruments that have not been placed on exhibition pursuant to s 66 should not be considered in a planning appeal. Similarly, she submits that only a development control plan in force under s 72 may be considered. Section 90 lists considerations which must be taken into account if they are of relevance to the development, the subject of the application. Section 90(1)(a) requires, inter alia, the council to take into consideration any draft planning instrument which has been placed on exhibition pursuant to s 66 and any draft development control plan in force under s 72. It is submitted that a draft development control plan or a draft planning instrument (that has not been exhibited) may not be considered by the council or the court.

The council submits that such matters were open to be considered by the council and hence the court, pursuant to the provisions of s 90(1)(q) or (r), ie "the circumstances of the case" or "the public interest". The council also submits that whether or not such material is available for use by the council, it becomes available for use by the court by reason of ss 38 and 39 of the Land & Environment Court Act 1979. Although, for reasons I will shortly outline, it is unnecessary for me to express a concluded view on Miss Blackman's submission, I am prepared to express a view that if it was not open to the council to consider the draft planning instrument and the draft development control plan, it would not be open to the court to receive that material in evidence in a planning appeal. In my opinion, there is some substance in the submission that s 90 properly construed does not admit of consideration by reason of pars (q) and (r) a draft local environmental plan at a stage of preparation too early to qualify as a "draft planning instrument" or a development control plan in force as is referred to in s 90(1)(a). However, acceptance of that submission would not mean that the council or the court could not take into account the planning principles and circumstances associated with or involved in the preparation of the draft plans: see Silverton v North Sydney Municipal Council ((1981) Senior Assessor Bignold, as he then was, unreported).

In my opinion, however, although the draft plans were before the court, the assessor's ultimate decision was not dependent upon his acceptance of those documents in evidence.

In Smith v Wyong Shire Council (1970) 19 LGRA 61 Else-Mitchell J distinguished Howard Hargrave in its application to s 313 of the 1919 Local Government Act . That section set out the matters which the Council must take into consideration in respect of any application for approval of the erection of a building. Else-Mitchell J held that s 313 did not state exhaustively the matters to which regard may be had in considering a building application. His Honour held that the general power of council to control and regulate the erection of buildings (particularly in s 305) would appear to justify the imposition of conditions travelling beyond the confines of the subjects specified in s 313.

Section 313 of the 1919 Local Government Act was substantially amended in 1979. In Warringah Shire Council v KVM Investments Pty Ltd (1981) 45 LGRA 425, Reynolds JA said (at 433): In building applications the power to impose conditions derives from s 314 of the Local Government Act . There can be no doubt that where the statute requires the court to give consideration to particular matters it can impose conditions in respect of those matters, but I do not think that is the limit of those powers. The grant of power in s 314 is in terms unrestricted in scope and, with respect, I agree with the decision of Else-Mitchell J in Smith v Wyong Shire Council ..."

In the same case Hutley JA said (at 437): Admittedly, the list of matters in s 313 is very exhaustive; there is authority that the repealed section did not contain an exhaustive list of matters to which consideration should be given: Smith v Wyong Shire Council (1970) 19 LGRA 61. There would seem no reason why this decision should not apply to the new section.

In BP Australia Ltd v Campbelltown City Council (1994) 83 LGERA 274 Mahoney JA (with whom Meagher and Powell JJA agreed) said, in relation to the exercise of a discretion to grant or withhold development consent(at 278-279): It is, in my opinion, well settled that, within appropriate limits and in the appropriate way, a general plan or policy may be taken into account as one of the factors to be considered in the exercise of such a discretion: see, in another context, Magill v Santina Pty Ltd [1983] 1 NSWLR 517; and the article P Bayne, "The exercise of discretion according to policy guidelines" (1993) 67 ALJ 214. For the relevance of a policy and similar considerations in difference contexts; see generally, Drake v Minister for Immigration & Ethnic Affairs (1979) 46 FLR 409; NCA (Brisbane) Pty Ltd v Simpson (1986) 13 FCR 207' Building Owners and Managers Association of Australia Ltd v Sydney City Council (1984) 53 LGRA 54.

In the abovementioned case, Mahoney JA makes no express reference to the s 90 heads of consideration. It seems that in the passage cited above his Honour was referring to general principles governing the exercise of discretion by a statutory decision-maker. In the result, his Honour held that it was open to the trial judge hearing an appeal under s 97 of the EP&A Act to refuse on the ground of public interest to depart from a policy which had been consistently applied by the council over many years and which the proposed development infringed.

In considering whether the matters listed in s 79C(1) state exhaustively the matters to be considered in determining a development application, I am entitled to have regard to the purpose or objects of the EP&A Act as set out in s 5. Section 33 of the Interpretation Act provides in the interpretation of a provision of an Act, a construction that would promote the purpose or object underlying the Act shall be preferred to a construction that would not promote that purpose or object. This is not dissimilar to the approach of Else-Mitchell J to the construction of s 313 of the 1919 Local Government Act , in which his Honour had regard to other provisions of that Act and to the context in which the relevant section appeared. The objects of the EP&A Act are widely stated, as follows: 5 Objects

(a) to encourage: (i) the proper management, development and conservation of natural and artificial resources, including agricultural land, natural areas, forests, minerals, water, cities, towns and villages for the purpose of promoting the social and economic welfare of the community and a better environment,

(ii) the promotion and co-ordination of the orderly and economic use and development of land,

(iii) the protection, provision and co-ordination of communication and utility services,

(v) the provision and co-ordination of community services and facilities, and

(vi) the protection of the environment, including the protection and conservation of native animals and plants, including threatened species, populations and ecological communities, and their habitats, and

(vii) ecologically sustainable development, and (b) to promote the sharing of the responsibility for environmental planning between the different levels of government in the State, and

(c) to provide increased opportunity for public involvement and participation in environmental planning and assessment. 21. The objects of the EP&A Act serve, in my opinion, to distinguish the present case from Howard Hargrave . That case was concerned with an application for subdivision under the 1919 Local Government Act . That Act did not have a provision which set out clearly stated objects.

These objects, in my opinion, can only be given full effect by not adopting a narrow construction of s 79C(1). A narrow construction would exclude from consideration the objects of the Act. For example, one of the objects of the Act is to encourage ecologically sustainable development (s 5(a)(vii)). If s 79C(1) were to be regarded as an exclusive list of relevant considerations it would result in the exclusion from consideration of an important objective of the Act. I am thus inclined to the view that s 79C(1) does not exclude the kind of considerations to which Mahoney JA referred in BP Australia Ltd v Campbelltown City Council . That is to say, I am inclined to the view that s 79C(1) sets out the matters that must be taken into consideration, but does not exclude from consideration other matters not included in those listed and which may be of relevance to the particular development application and which furthers the objects of the Act. The view of Cripps J in Ian Turner Partners is clearly obiter and I do not regard myself as bound by it.

I am confirmed in this view by the Second Reading Speech on the Bill for the Act by the relevant minister (s 34(1)(2) Interpretation Act 1987). I set out the relevant part of the Speech in the Legislative Council by the Honourable J W Shaw MLC (Attorney-General and Minister for Industrial Relations) on behalf of the relevant minister. (The Second Reading Speech in the Legislative Assembly by the Honourable C Knowles, the Minister for Urban Affairs & Planning and Minister for Housing, uses precisely the same language.) Within this context is the streamlining and rationalisation of the criteria embodied in the current section 90 of the Act and applied in assessing development applications. The proposed section 79C contains a reduced and general list of considerations.

The 'public interest' test is applied in the assessment of applications.

This test is consistent with the aims and objectives of the Act. The 'public interest' test will provide necessary flexibility for a consent authority to consider matters that may not be covered in the new list of considerations.

In fact, it is consistent and complements the Heads of Consideration listed in Section 89 of the Local Government Act 1993.

I refer, in particular, to the references in the passage quoted above to " a reduced and general list of considerations "; to " the public interest test " which is said to be " consistent with the aims and objectives of the Act "; and that any such test " will provide necessary flexibility for a consent authority to consider matters that may not be covered in the new list of considerations ".

I thus conclude that the matters for consideration listed in s 79C(1) are not the only matters to which a consent authority may have regard. The listed matters are those which a consent authority must consider. The consent authority may also take into consideration other matters not included in those which are listed. Those other matters include, in the public interest, any matter which relates to the objects of the Act set out in s 5. This does not mean that the decision-maker may take anything into consideration. The relevant considerations are confined so far as the subject-matter, scope and purpose of the Act and any environmental planning instruments allow. The draft DCPs and the Values Statement in the present case are relevant as documents which relate to the matters described in sub-paras (i), (ii), (vi) and possibly (vii) of para (a) of those objects. In taking those matters into consideration the Commissioner made no error of law.

Once it is determined that a matter is a relevant consideration it is then a question for the decision-maker to determine what weight should be given to it. In BP Australia Ltd v Campbelltown City Council Mahoney JA said (at 279): Thus, within proper limits, it is for the authority to determine what weight should be given to each of the relevant considerations in the process of weighing them. If quite disproportionate weight is given to one consideration, discretion may miscarry and the decision made may be set aside. But subject to such cases, it is open to the authority to decide what weight should be given to each of the considerations. ...

In the present case it could not be said, in my opinion, that the weight given to the documents in question was so disproportionate that the discretion miscarried.

The Commissioner wrongly determined that he had no jurisdiction to consider the application because of an erroneous finding by him of a jurisdictional fact that the Pittwater spotted gum ecological community is present on the land.

The Commissioner noted that the New South Wales Scientific Committee established by the Threatened Species Conservation Act 1995 had made a final determination to list the Pittwater spotted gum ecological community as an endangered ecological community under Part 3 of Schedule 1 to that Act. One of the issues which the Commissioner had to decide was whether the vegetation on the land is part of the Pittwater spotted gum ecological community. The Commissioner was satisfied that the Pittwater spotted gum ecological community is present on the land. That was a finding on a question of fact. Mr Tomasetti submits, however, that it was a jurisdictional fact and that the Commissioner was in error in finding that the Pittwater spotted gum ecological community is present on the land.

The importance of the Commissioner's finding is because of the effect of s 78A(8) of the EP&A Act, which relevantly provides: A development application must be accompanied by:

(b) if the application is in respect of development on land that is, or is part of, critical habitat or is likely to significantly affect threatened species, populations or ecological communities, or their habitats - a species impact statement prepared in accordance with Division 2 of Part 6 of the Threatened Species Conservation Act 1995.

Threatened species, populations or ecological communities, include endangered communities specified in Schedule 1 to the Threatened Species Conservation Act . The development application in this case was not accompanied by a species impact statement referred to in s 78A(8) above.

Section 5A of the EP&A Act lists eight factors that must be taken into account in deciding whether, for the purpose of s 78A ( inter alia ), there is likely to be a significant effect on threatened species, populations or ecological communities. The Commissioner said that he was of the opinion, after applying the eight part test under s 5A, that there would be a likelihood of a significant effect as a result of the proposed development on threatened species, populations or ecological communities or their habitats. Since a species impact statement had not been carried out the development application must fail.

Mr Tomasetti referred to the evidence which was before the Commissioner which was said to support his submission that the land does not support the Pittwater spotted gum ecological community. This evidence is contained in a number of exhibits, including the statements of expert witnesses and in extensive transcript references which Mr Tomasetti has identified.

Apart from the detailed evidence which Mr Tomasetti has identified, it seems that his principal submission is based on the findings of the New South Wales Scientific Committee that the plant community is characterised by an assemblage of nominated species; that the community occurs on shale derived soils on the lower slopes of the Narrabeen group - Newport formation on the Barrenjoey Peninsula and the western Pittwater foreshores; and its distribution is shown on an identified map by Benson and Howell 1994. The site of the proposed development, however, is said to be located on Hawkesbury sandstone in a hilltop area at Bayview it contains only some of the nominated species and is not in an area shown on the map as containing the community. According to the submission, the endangered plant community cannot by definition occur on the site.

Mr Preston, however, has drawn my attention to expert evidence in the transcript to the effect that the map in question plainly states that many small occurrences of formations occur which have been too small to map at the scale at which the map is drawn; that the community could exist even if it is not on the map; that 30 of the 44 nominated species which characterise the community are found on the site; that considering the past fire regime it is likely that there would be an additional four of the nominated species in the seed bank on the site; and that there is evidence that the site is an ecotone between the Pittwater spotted gum ecological community and the Sydney sandstone gully forest, in which the two communities intermesh.

It seems to have been accepted by the expert witnesses, or some of them, that whether it can be said that one is in the presence of the Pittwater spotted gum ecological community is a matter of judgment. The opposing expert witnesses came to different conclusions on the question. The Commissioner, after weighing all the evidence, which included a view of the site, concluded that the community existed on the site. There was expert evidence that the nature of the soil is not, apparently, the only criteria which govern whether the community is present. The Commissioner had before him evidence of the likely existence on the site of 34 of the 44 nominated species which characterise the community. The Commissioner had before him expert evidence to the effect that the site may be an ecotone, being an area in which two kinds of plant communities overlap or intermesh. It was clearly open to the Commissioner, on a consideration of the whole of the evidence on the question, to come to the view that the community existed on the site. The Commissioner, having heard the expert witnesses and viewed the site, was in a much better position than me to determine this issue.

I am able to resolve this issue without determining the separate question of whether s 78(8) raises a jurisdictional fact. Assuming, without deciding, that the question of whether the Commissioner's finding (that the community is present on the land) is a jurisdictional fact, there was evidence before the Commissioner upon which he could so find. Having carefully read the evidence on this question to which I was directed, I would not be prepared to disturb such finding. Again (even if the question be jurisdictional and I could review the Commissioner's findings of fact), I am mindful that on an appeal from a Commissioner with specialist expertise who has had the benefit of seeing and hearing the expert witnesses and viewing the site, a court of appeal which has jurisdiction to review findings of fact should generally exercise caution in substituting its own opinion for the Commissioner's finding ( Spurling v Development Underwriting (Vic) Pty Ltd (1972) 30 LGRA 19 at 32, Montana Hotels Pty Ltd v Fasson Pty Ltd (1985) 62 LGRA 33 at 37). For completeness, I should add that it could not be said that the Commissioner's finding in this case was unreasonable in the Wednesbury sense([1948] 1 KB 230 at 233-234).

I am thus not satisfied that ground 2 is established.

The Commissioner departed from the rules of procedural fairness during and following a view of the site.

Mr Tomasetti submits that the Commissioner denied the applicant natural justice in giving weight to the fact that he was apparently told by someone during a view of the site that the presence thereon of clay-like material was indicative of shale-derived soils. The Commissioner did not identify who it was that told him on the site that the presence of clay-like material was indicative of shale-derived soils. That was an opinion which could only be expressed by an appropriately qualified person. The applicant had been denied the opportunity of cross-examining such person and of calling evidence on the point. In Mr Tomasetti's submission the Commissioner did not advise the parties that he would rely upon the discovery of a clay-like substance whilst on the view of the site as evidence of the existence thereon of shale-derived soils. No opportunity was given, it is said, for the applicant to be heard on the significance or weight of this alleged discovery.

Evidence was given before me by the applicant's solicitor, Mr J B Hancock. He said: 2. I was present at the site view with Commissioner Watts.

3. I was walking up from the proposed tennis court area on the lower North East side of ' site ' with Mrs Carstens when I saw Mr Skelton one of the consultants who gave evidence for the respondent beckon Commissioner Watts over to where he was standing.

4. Mr Skelton scuffed at the soil with his boot. He scooped up in his hand some soil. He shaped and rolled it in his hand and said to the Commissioner " This is clay it is indicative of shale derived soils ".

5. Mr Tomasetti then said " Commissioner I object to this. To Council giving evidence in this way ."

After the view the following exchange took place at the hearing: COMMISSIONER: Is there anything else that you wish to put on record in regard to the site inspection?

HEMMINGS: The presence of the clay, I just note the presence of the clay.

TOMASETTI: We saw something that looked like clay but I don't know what it was and I don't know what it means.

HEMMINGS: Well I'm happy to have the record note that there was something that had the appearance of clay that was taken out of the ground -

COMMISSIONER: Rolled into a strip which seemed to have some adhesive qualities like clay.

TOMASETTI: I can't object to that, that was what we saw.

COMMISSIONER: Yes, well that's right. I'm only asking what was seen. And I think that was in the vicinity of the septic tank shown on the survey.

TOMASETTI: It was a bit below it, I think, wasn't it?

HEMMINGS: It was just below the stone path, I think it was. So a bit further down the site.

COMMISSIONER: Oh a bit further down. So in the vicinity of tree 42?

COMMISSIONER: So we'll put "C lay-like substance seen in the vicinity of T42" . Anything else?

There was no further mention in submissions of the discovery on the site of clay or of a clay-like substance.

In his decision the Commissioner said: I am satisfied that the Pittwater Spotted Gum Ecological Community, (PSEGEC), is present on the land. The discovery of a clay-like substance near Tree No T42, whilst on the site inspection, is evidence of shale-derived soils, and an important prerequisite of the community being present on the land. The Scientific Committee has indicated that the PSGEC occurs on shale-derived soils with high rainfall on lower hill-slopes on the Narrabeen Group - Newpport Formation, on the Barrenjoey Peninsula and western Pittwater foreshores. Mr Skelton was of the opinion that the vegetation on the land contains thirty of the forty four species that characterise the assemblage that is knows as PSGEC. He was also of the opinion that further four species are likely to be found after fire. This would bring the species inventory to thirty four of the forty found in the PSGEC. Prof Martin agreed that this species inventory would indeed be likely to be found on the land. To confirm the presence of the PSGEC, Prof Martin felt it necessary for there to be present on the land, shale-derived soils. He did not see any evidence of these soil types on his site inspection. Mr Robertson did not rule out the presence of PSGEC being present on the land and agreed it could occur outside mapped areas and on the southern foreshores of Pittwater. Although the land is not on the lower hill-slopes it is near a gully (to the east of the land) and that may explain the presence of clay-like material, that is indicative, I was told on the site inspection, of shale-derived soils. I accept the evidence of Messrs Skelton, and Stubis that preconditions exist for the PSGEC to be present on the land.

Mr Tomasetti submits that the Commissioner may not gather additional evidence for the determination of a proceeding unless the information is disclosed and parties are given an opportunity to be heard and, where appropriate, an opportunity of adducing evidence on the matter. (He referred in this context to Hodge v Williams (1947) 47 SR(NSW) and Torrington Investments Pty Ltd v Shire of Bulla (1981) 57 LGRA 181.) Neither, in Mr Tomasetti's submission, does s 38 of the Court Act displace the requirement that the Court must observe the rules of natural justice and the affording of procedural fairness to the parties. That includes, in his submission, allowing the applicant to test the evidence by cross-examination.

Mr Preston submits that the Commissioner was entitled to take into account the presence of clay-like material found on the view as an indication of the existence of shale-derived soils. He was entitled to do so by reason of s 38(2) of the Court Act and it was in conformity with the rules of evidence if such rules applied (s 54 Evidence Act 1995). Mr Preston also submits that there was no denial of procedural fairness as both parties were represented during the view and heard the conversation described by Mr Hancock; and the Commissioner gave both parties an opportunity to put on record anything relating to the view.

In considering these submissions I am mindful that the rules of evidence do not apply to the proceedings which were heard by the Commissioner. Section 38(1) and (2) of the Court Act provides: 38 Procedure (1) Proceedings in Class 1, 2 or 3 of the Court's jurisdiction shall be conducted with as little formality and technicality, and with as much expedition, as the requirements of this Act and of every other relevant enactment and as the proper consideration of the matters before the Court permit.

(2) In proceedings in Class, 1, 2 or 3 of the Court's jurisdiction, the Court is not bound by the rules of evidence but may inform itself on any matter in such manner and as the proper consideration of the matters before the Court permit. 45. The provisions of s 38 do not, however, displace the requirement that the Court must observe the principles of natural justice. The principles of natural justice are a fundamental common law entitlement which cannot be removed or displaced except by legislation which clearly and unambiguously so provides; and such principles apply to administrative tribunals or other statutory decision-makers ( Idonz Pty Ltd v National Capital Development Commission (1986) 60 LGRA 328, Lisafa Holdings Pty Ltd v Commissioner of Police (1988) 15 NSWLR 1, Ozmanian v Minister for Immigration (1996) 137 ALR 103). Moreover, as Deane J observed in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 366, the obligations of a statutory decision-maker to act in accordance with the requirements of natural justice is part of the common law obligation to act judicially. Deane J also said (at 366): These days, it is customary and convenient in this country to avoid references to " acting judicially " or " natural justice " and to speak of the " requirements of procedural fairness ".

Breach of a duty to act judicially constitutes an error of law which will vitiate the decision ( Bond at 367, per Deane J).

The duty to act judicially extends to a view. In Hodge v Williams (1947) 47 SR(NSW) 489, Davidson J said (at 492, 493): Sometimes there may be a very fine line between what is proper and improper in the conduct of a view by a jury or by a Judge when exercising the function of deciding issues of fact. Impressions formed in such circumstances may be of potent value. Inspection is a substitution of the eye for the ear in the reception of evidence. Therefore, where practicable , the courts have always allowed a view where it may assist the tribunal in arriving at a decision ...

Nevertheless, it is not permissible for the Judge or jury, in the absence of the parties, to gather by extraneous evidence or experiments of their own, anything in the nature of additional evidence, and apply it in the determination of the issues, unless the facts so obtained are ventilated and submitted to the comment of the parties or their counsel. ...

Moreover, as Evatt J has said with regard to a tribunal that was not bound by rules of evidence - " Neither it is. But that does not mean that all rules of evidence may be ignored as of no account. After all, they represent the attempt made through many generations to evolve a method of inquiry best calculated to prevent error and elicit truth, and no tribunal can, without grave danger or injustice, set them on one side and resort to methods of inquiry which necessarily advantage one party and necessarily disadvantage the other party ": ...

In Unsted v Unsted (1947) 47 SR(NSW) 495, Davidson J again made some observations of the use to be made of a view (at 498): Whilst a view is frequently a valuable adjunct to a hearing to enable the truth to be elicited, there are well-recognised limits within which such a procedures must be kept. ... It is not permissible, however, for the Judge to gather anything in the nature of extraneous evidence and apply it in the determination of the issues unless the facts are openly ventilated and exposed to the criticism of the parties: Way v Way (1928) 28 SR 345 at 347; 45 WN 101; 14 Australian Digest 481; Kessowji Issar v The Great Peninsula Railway Co (1907) 28 SR 345; 45 WN 101; 14 Australian Digest 481.

The question in the present case is whether the Commissioner failed to act judicially during and following the view and whether he failed to follow the principles described in Hodge v Williams and in Unsted v Unsted . Following the discovery of the clay or clay-like material on the site it was, in my opinion, the duty of the Commissioner to give to the parties the opportunity of dealing with that new evidence. It seems to me that the Commissioner gave the parties that opportunity. This appears from the transcript which I have set out in paragraph 39 above. The Commissioner said that he saw clay on the site. The presence or absence of clay-derived soils was said to be indicative of the presence or absence of the Pittwater spotted gum ecological community. The presence or absence of clay-derived soils and hence the presence or absence of the Pittwater spotted gum ecological community was, therefore, an issue. The Commissioner properly, in my opinion, stated to the parties at the hearing that he saw clay or a clay-like substance on the site. The parties were then afforded an opportunity to deal with that observation. It does not seem to me that there was any denial of procedural fairness. Neither does it seem to me that the Commissioner failed to ventilate and submit to the comment of the parties the observation that was made at the view.

Mr Tomasetti submits that natural justice required that the applicant should have been allowed to test this evidence by some form of cross-examination. He relies for this submission on R v Australian Broadcasting Tribunal ; ex parte Hardiman (1980) 144 CLR 13 at 34-35, Lindemans Wines Pty Ltd v Woodward (1981) 46 LGRA 14 and Randwick Municipal Council v Woodward (1983) 50 LGRA 55.

I accept the principle for which Mr Tomasetti contends. I do not accept, however, that he was denied the opportunity to test the evidence by cross-examination. Mr Skelton, who drew the Commissioner's attention on the site to the presence of the clay or clay-like material was an expert witness called by the respondent. Following the view and upon the resumption of the hearing, the Commissioner identified the substance found as noted in the transcript reference above. It was then open to Mr Tomasetti to seek the recall of Mr Skelton for the purpose of cross-examining him on the matter. It was also open to Mr Tomasetti to call any expert evidence himself in the light of the discovery of the material on the site. It seems to me that there was no denial of procedural fairness to the applicant.

Thus, whilst the rules of procedural fairness apply both to the conduct of the view and to the hearing, there was no breach of those rules in this case.

The three grounds of appeal described above were the principal grounds advanced by Mr Tomasetti before me. Nevertheless, as noted in paragraph 2 above, Mr Tomasetti expressly stated that he did not abandon any of the remaining grounds of appeal raised by the applicant. It is accordingly necessary for me to consider each of them.

The Commissioner denied the applicant natural justice in referring to and relying upon a circular published by the New South Wales National Parks & Wildlife Service.

The circular in question is " Circular No 2 Threatened Species Assessment under the Environmental Planning & Assessment Act 1979" published by the National Parks & Wildlife Service. It was not tendered during the hearing. It was, however, referred to and relied upon by the Commissioner in his decision. Therefore, it is submitted, the Commissioner denied the applicant natural justice. Had the Commissioner advised the parties of his intention to refer to the circular then submissions could have been made as to its relevance and the weight to be placed upon it.

The reference to the circular appears in the Commissioner's decision in his discussion of the Threatened Species Conservation Act 1995. After referring to the Act the Commissioner states: As explained in the Information Circular No 21 12 NPWS Information Circular No 2 Threatened Species Assessment under the Environmental Planning and Assessment Act 1979: The '8 Part Test' of Significance, November 1996 (and still current) p i 2: "The [TSC] Act places specific responsibilities on applicant, proponents, consent and determining authorities and the NSW National Parks and Wildlife Service, [NPWS], in the fields of environmental planning, development control recovery planning and threat abatement planning." If the consent or determining authority decides that the proposal is likely to have a significant effect on threatened species, populations or ecological communities, or their habitats then1 13 The ' 8 Part Test' of Significance , November 1996 p 23 3 : (a) "if Part 4 of the Environmental Planning and Assessment Act 1979 applies, the development application, pursuant to s 77(3)(d1) of the EP&A Act, must be accompanied by a [Species Impact Statement] SIS prepared in accordance with Division 2 of Part 6 of the TSC Act;

(c) the proposed development or activity may be modified such that a significant effect is unlikely. This will involve searching for alternatives and/or suitable amelioration. The '8 part test' must be applied to any modified proposal therefore ensuring that the effect will in fact be insignificant." And

"In addition to the preparation of a SIS, the concurrence of the Director-General of National Parks and Wildlife of consultation with the Minister for the Environment is required pursuant to ss 77A, 77B 112B or 112C of the EP&A Act, before the consent or determining authority can make a decision to grant the proposal."

In my opinion, a fair reading of the references to the circular by the Commissioner show that the particular references are no more than statements in summary form of the requirements of the Threatened Species Conservation Act . That is to say, the material to which the Commissioner had regard and upon which he is said to have relied are not statements of opinion or policy which colour or otherwise appear to influence the decision. They are, as I have said, merely statements in the circular which summarise the requirements of the Act. The Commissioner could just as readily have summarised those provisions for himself, but instead found a convenient summary in the circular. I thus conclude that even if there was a breach of the rules of procedural fairness, it was not a material breach having regard to the nature and content of the circular to which the Commissioner referred.

The Commissioner erred in holding that once having established that the Pittwater spotted gum ecological community is present on the site only one of the eight tests set forth in section 5A of the EP&A Act need be satisfied before it is necessary for a species impact statement to be carried out.

Section 5A of the EP&A Act provides: 5A Significant effect on threatened species, populations or ecological communities, or their habitats

For the purposes of this Act and, in particular, in the administration of sections 78A, 79C(1) and (2), the following factors must be taken into account in deciding whether there is likely to be a significant effect on threatened species, populations or ecological communities, or their habitats: (a) in the case of a threatened species, whether the life cycle of the species is likely to be disrupted such that a viable local population of the species is likely to be placed at risk of extinction,

(b) in the case of an endangered population, whether the life cycle of the species that constitutes the endangered population is likely to be disrupted such that the viability of the population is likely to be significantly compromised,

(c) in relation to the regional distribution of the habitat of a threatened species, population or ecological community, whether a significant area of known habitat is to be modified or removed,

(d) whether an area of known habitat is likely to become isolated from currently interconnecting or proximate areas of habitat for a threatened species, population or ecological community,

(f) whether a threatened species, population or ecological community, or their habitats, are adequately represented in conservation reserves (or other similar protected areas) in the region,

(g) whether the development or activity proposed is of a class of development or activity that is recognised as a threatening process,

(h) whether any threatened species, population or ecological community is at the limit of its known distribution.

In his decision the Commissioner said: Once having determined that the PSGEC is present it is necessary to apply the 8 part test of s 5A of the Act. Only one of the tests need be satisfied before it is necessary for a Species Impact Statement to be carried out. Having regard to the evidence I am of the opinion that under s 5A(c) of the Act, a likely significant effect on the ecological community would occur if the development in its present form were carried out. This is because a significant number of trees and their canopy, within that known habitat of the PSGEC, would need to be removed.

I am of the opinion, after applying the 8 part test under the Act, that there would be a likelihood of significant effect as a result of the proposed development on the threatened species, populations or ecological communities or their habitats a Species Impact Statement would be required. This has not been carried out and as a result the application must fail.

Mr Tomasetti submits that as a matter of construction there is no reason to conclude that once having established the presence of the Pittwater spotted gum ecological community as being present on the site then only one of the eight factors set out in s 5A need be satisfied before it is necessary for a species impact statement to be carried out. The Commissioner proceeded under the mistaken view that if only one of the eight factors was satisfied then it was necessary to prepare a species impact statement. This was, in Mr Tomasetti's submission, an error of law. Moreover, the error was material because it led the Commissioner to conclude that without a species impact statement he had no jurisdiction to determine the development application.

Mr Preston submits that on a proper reading of the decision, the Commissioner did not ask himself the wrong question. The Commissioner was, in his submission, well aware that he ought to consider each of the matters in the 8 part test, so far as they might be relevant, and he did so. Mr Preston further submits that it is open to the decision-maker to conclude that an affirmative answer should be given to the overall question in s 5A and s 78A(8)(b) of the EP&A Act. It is not necessary, in Mr Preston's submission, for there to be an affirmative answer to each of the eight factors before concluding that an affirmative answer should be given to the overall question. Having regard to all eight factors would be an impossibility. For example, no critical habitat has been declared in New South Wales, so that an affirmative answer to paragraph (e) of s 5A is at present impossible. In the present case, paragraphs (a), (b) and (g) of s 5A do not concern an ecological community, so that again no affirmative answer could be given to those factors.

I agree with Mr Preston's submissions, which I find compelling. The Commissioner's decision disclosed that he was aware that he had to apply each of the eight tests set out in s 5A, so far as they might be relevant. It is clear that some of those tests were not relevant. In applying the relevant tests the Commissioner found an affirmative answer to paragraph (c) and that this was sufficient in this case to give rise for the need for a species impact statement. There is no error of law in this approach.

Mr Tomasetti submits that on a proper construction of s 5A, the consent authority may conclude that a species impact statement is required where none of the eight factors are satisfied. Conversely, he submits that the consent authority may conclude that a species impact statement is not required where one or more of the eight factors are satisfied. I do not necessarily disagree with this submission. The critical question is that which is posed by s 78A(8)(b): is the development on land that is, or is part of, critical habitat or is likely to significantly affect threatened species, populations or ecological communities, or their habitat? The Commissioner found in this case that in applying one of the eight tests set out in s 5A there was an affirmative answer to the question posed by s 78A(8)(b). There is no error of law if an affirmative answer is given to the question raised by s 78A(8)(b) on the application of one of the tests set out in s 5A. It follows that this ground of appeal also fails.

The Commissioner erred in holding that after applying the 8 part test under the Act, there would be a likelihood of significant effect as a result of the proposed development on the threatened species, populations or ecological communities a species impact statement was required and that in the absence of such a statement the development application must fail

In my opinion, the Commissioner's finding that the development was likely to significantly affect the ecological community was a finding of fact which was reasonably open to him. No question of law is raised by this ground.

The Commissioner erred in holding that there would be a likelihood of significant effect on the ecological community if the development in its present form were carried out because a significant number of trees and their canopy, within known habitat of the Pittwater spotted gum ecological community, would need to be removed.

Mr Tomasetti submits that for the reasons advanced in support of ground (2) this is a finding of a jurisdictional fact which cannot be sustained; that the Commissioner misunderstood the 8 part test under s 5A of the EP&A Act and thus his finding thereunder miscarried; and even if there had been no misunderstanding of the 8 part test the Commissioner failed to give adequate reasons as to why there would be the likelihood of significant effect upon the Pittwater spotted gum ecological community.

For the reasons given in relation to ground (2) I do not agree with Mr Tomasetti's first submission. The finding of the Commissioner of the effect of the proposed development on a significant number of trees and their canopy was a finding of fact. Even if it be a jurisdictional fact it is one which, again for the reasons given in relation to ground (2), I am not prepared to disturb. As I have noted in relation to ground (2), it seems to be undisputed that 30 of the 44 species which characterise the assemblage known as the Pittwater spotted gum ecological community is present on the land and that a further four species which characterise that community are likely to be found after fire. That is to say, 34 of the 44 species which characterise the community are probably present on the land. In the light of these facts I would, if entitled to revisit the facts afresh, have come to the same conclusion as the Commissioner: namely, that the community existed on the land and the development would be likely to significantly affect that community.

For the reasons I have given in relation to ground (4) above, I reject Mr Tomasetti's second submission under this ground.

Mr Tomasetti's third submission in relation to this ground is an assertion that the Commissioner failed to give adequate reasons. It is settled that the giving of proper reasons for decision is an incident of the judicial process ( Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd (1983) 3NSWLR 378 at 386, per Mahoney JA, Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 279, per McHugh JA). Judicial officers thus have a duty to give proper reasons and a failure to do so constitutes an error of law ( Pettit v Dunkley (1971) 1 NSWLR 376, Tatmar Pastoral Co at 385). In Soulemezis , McHugh JA discussed the basis of the duty (at 279): The giving of reasons for a judicial decision serves at least three purposes. First, it enables the parties to see the extent to which their arguments have been understood and accepted as well as the basis of the judge's decision. As Lord MacMillan has pointed out, the main object of a reasoned judgment " is not only to do but to seem to do justice ": The Writing of Judgments (1948) 26 Can Bar Rev at 491. Thus the articulation of reasons provides the foundation for the acceptability of the decision by the parties and by the public. Secondly, the giving of reasons furthers judicial accountability. As Professor Shapiro has recently said ( In Defence of Judicial Candor (1987) 100 Harv. L Rev 731 at 737): " A requirement that judges give reasons for their decisions - grounds of decision that can be debated, attacked, and defended - serves a vital function in constraining the judiciary's exercise of power." Thirdly, under the common law system of adjudication, courts not only resolve disputes - they formulate rules for application in future cases: Taggart " Should Canadian Judges Be Legally Required to Give Reasoned Decisions in Civil Cases " (1983) 33 University of Toronto Law Journal 1 at 3-4. Hence the giving of reasons enables practitioners, legislators and members of the public to ascertain the basis upon which like cases will probably be decided in the future.

In North Sydney Council v Ligon 302 Pty Ltd (1995) 87 LGERA 433, Kirby ACJ discussed the duty to give reasons in the context of hearing and determining a development appeal (at 442): The only way by which this Court, and the parties, can discern whether a consideration crucial to the case was taken into account is by looking to the reasons of the judge who is subject to appeal to this Court. Whilst those reasons should not be examined in an overly critical or pernickety way, the facility of appeal is provided by Parliament to ensure that a manifestly lawful decision is made. This Court has held many times that it is an incident of judicial duty to give reasons which extend to expressing findings upon issues which are critical to the point in contention in the case: ...

I have reservations in extending the current immunity against the obligation to give reasoned decisions, enjoyed by pure administrators, to a judicial officer of a superior court. CF Public Service Board (NSW) v Osmond (1986) 156 CLR 656 at 666. Whilst it is true that the judge is substituted for the consent authority and is making, in effect, an administrative decision, it is a decision inescapably made by a judge. As an incident of the judicial office, the judge is expected by the community to give reasons which sufficiently demonstrate the lawfulness of what he or she has done. Housing Commission of New South Wales v Tatmar Pastoral Co Ltd [1983] 3 NSWLR 378 (CA) at 385; 53 LGRA 325 at 332; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 (CA) at 270. Whilst it is true that the duty of the judge will vary according to the way a case has been conducted and the reasoning followed, where a point is vital and where its resolution is crucial to the contest between the parties, it will ordinarily be expected that the judge will expose his or her reasons for the decision on the issue: see Soulemezis (at 270).

In Ligon the Court of Appeal was concerned with the determination of a development appeal by a judge of this Court. In the present case the appeal was heard and determined by a lay commissioner. In that event it is appropriate to apply the approach stated by Kirby P in Brimbella Pty Ltd v Mosman Municipal Council (1985) 79 LGERA 367 at 368: Secondly, 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 the 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.

In applying the abovementioned principles I approached the question in this case by seeing if the Commissioner gave adequate reasons for coming to the conclusion that there would be the likelihood that the development would significantly affect the Pittwater spotted gum ecological community on the land, in a way which exposes the basis upon which such decision was reached, but not in an overly critical or pernickety way and not examining the words too narrowly nor as if they were written by a lawyer.

It seems to me that on a fair reading of the Commissioner's decision the reasons for coming to the conclusion which he did are adequately stated. The fundamental reason is stated as follows: This is because a significant number of trees and their canopy, within that known habitat of the PSGEC, would need to be removed.

Later in the decision the Commissioner specifically identifies the particular trees which would have to be removed in order to allow the development to proceed. He concludes by stating: I accept the evidence of the Council witnesses that there would be a loss of a minimum of 50% of the vegetative canopy on the land and the application should fail.

In the light of these statements I do not accept Mr Tomasetti's submission that the Commissioner failed to give adequate reasons as to why there would be the likelihood of a significant effect upon the Pittwater spotted gum ecological community. This ground of appeal also fails.

The Commissioner erred in holding that under the EP&A Act the principles of ecologically sustainable development must be a factor in the assessment of the impact on the environment of a combined development application and construction certificate.

The Commissioner's decision contains the following statements: The Act requires that the principles of ecologically sustainable development (ESD) must be a factor in an assessment of the impact on the environment of a combined Development Application and Construction Certificate. ...

To achieve the objects of the Act and in particular ESD principles, a balance needs to be struck between the man-made development and the need to retain the natural vegetation.

Mr Tomasetti submits that the Commissioner erred in holding that the Act required that the principles of ecologically sustainable development ("ESD") must be a factor in the assessment of the impact; it is not a factor which is set out in s 79C(1), neither is the phrase defined in the Act.

Mr Preston submits that having regard to (a) the express object in s 5(a)(ii) of the EP&A Act of encouraging ESD; (b) the fact that one of the central issues in determining the development application concerned the likely effect on a threatened ecological community; (c) the desirability of an administrative decision-maker exercising discretionary statutory powers in a way which promotes the objects of the Act; (d) the fact that the principles of ESD are relevant to many of the s 79C(1) generic categories of matters; (e) the fact that the principles of ESD have been accepted internationally, nationally and within New South Wales as relevant to environmental decision-making; and (f) the absence of any provision in s 79C(1) or elsewhere which states that ESD is an extraneous consideration, the Court should not conclude that ESD is an irrelevant consideration. Mr Preston refers to a number of cases in the Court and elsewhere in which ESD principles have been applied.

I have previously discussed under ground (1) above the relationship between the objects of the EP&A Act described in s 5 and the matters to be taken into consideration in determining a development application set out in s 79C(1). In the light of that discussion and for the reasons which I have there stated, I concluded that s 79C(1) sets out the matters that must be taken into consideration, but that subsection does not exclude from consideration matters not listed and which may be of relevance to the particular development application and which further the objects of the Act. That is to say, it is not an irrelevant consideration for the decision-maker to take into account a matter relating to the objects of the Act. One of those objects is to encourage ecologically sustainable development (s 5(a)(vii)). Moreover, one of the considerations expressly mentioned in s 79C(1) is " (e) the public interest ". In my opinion it is in the public interest, in determining a development application, to give effect to the objects of the Act. For these reasons I do not accept the submission that the Commissioner erred in holding that the principles of ESD must be a factor in the consideration of a combined development application and construction certificate.

The Commissioner failed to have regard to the evidence of Dr Martin that two trees were dangerous and needed to be immediately removed; or in the alternative, failed to give any reasons for rejecting that evidence when concluding that there would be impact on the streetscape by the loss of one of those trees if the dwelling were to be approved.

The applicant had called evidence from Dr P M Martin who said that two particular trees were unsound and should be removed now. In his decision the Commissioner noted that the proposed dwelling would require the removal of one of the trees identified by Dr Martin as being unsound, the canopy of which contributes to the treed ridge line when viewed from the north east and from Pittwater. The Commissioner also said that from the road there would be the impact of a two storey dwelling house in place of the present single storey dwelling house and the loss of the identified tree. The Commissioner continued by stating that from Pittwater the gap in the treed skyline would be visible if the identified tree were to be removed. In Mr Tomasetti's submission the Commissioner failed to give any adequate reason for having regard to the impact of the loss of the two trees identified by Dr Martin when the evidence was that those trees require removal in any event.

In my opinion the submission requires the adoption of an overly critical and pernickety examination of the Commissioner's reasons, an approach which was deprecated by Kirby ACJ in North Sydney Council v Ligon (at 442), to which I have referred in paragraph 67 above. It also requires a narrow examination of the words used, particularly in their overall context, which was equally deprecated by the same judge in Brimbella v Mosman Municipal Council (at 368) and which I have noted in paragraph 68 above. The passages in the Commissioner's decision to which Mr Tomasetti has referred must be read in their overall context. The Commissioner noted that the erection of the proposed dwelling would require the removal of a number of other trees as well as those identified by Dr Martin as being unsound. The Commissioner noted that other aspects of the proposed development, namely the tennis court, the terrace and the swimming pool would also require the removal of a number of significant native trees and shrubs. The Commissioner accepted evidence that there would be a loss of a minimum of 50% of the vegetative canopy on the land. The Commissioner said elsewhere in his decision: I consider that the extent of clearing as a result of direct and indirect impacts of the development would be excessive. In this regard I have inspected the site and noted the extent of vegetation likely to be removed.

I am thus left with the impression that the inevitable loss of the two trees identified by Dr Martin, when considered in the overall context of the removal of at least 50% of the vegetative canopy on the land, would not make a material difference to the overall impact of the development.

The Commissioner was not required to give reasons in respect of every piece of the evidence. In Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd (1983) 3 NSWLR 378, Mahoney JA after referring to the duty to state reasons, said (at 385-386): However, such a duty does not exist in respect of every matter, of fact or of law, which was or might be raised in the proceedings. It is not the duty of the judge to decide every matter which is raised in argument. ... Nor is it necessary for a judge who is exercising a discretionary judgment to detail each factor which he has found to be relevant or irrelevant, or to itemise, for example, in the assessment of damages for tort, each of the factual matters to which he has had regard: see O'Hara v Evans (Court of Appeal, 27 September 1976, unreported); Colacicco v Colacicco (Court of Appeal, 15 March 1997, unreported). ... Nor is a judge required to make an explicit finding on each disputed piece of evidence. It will be sufficient, if the inference as to what is found is appropriately clear: see Selvanayagam v University of West Indies [1983] 1 WLR 585 at 587, 588; [1983] 1 AllER 824 at 826.

But, subject to matters such as these, the basis of the decision of a trial judge or of an intermediate court of appeal should be made apparent. This does not mean that the reasons given need be elaborate: an elaborate argument may not require an elaborate answer. Reasons need be given only so far as is necessary to indicate to the parties why the decision was made and to allow them to exercise such rights as may be available to them in respect of it.

In Soulemzis v Dudley (Holdings) Pty Ltd , Mahoney JA also said (at 271): In my opinion, the law does not require that a judge make an express finding in respect of every fact leading to, or relevant to, his final conclusion of fact; nor is it necessary that he reason, and be seen to reason, from one fact to the next along the chain of reasoning to that conclusion.

In applying these principles to the present case, the basis for the Commissioner's decision is reasonably clear. It is that he was of the opinion that a loss of 50% of the canopy of vegetation on the land if the development took place was an unacceptable impact. His conclusion is expressed as follows: I accept the evidence of the Council witnesses that there would be a loss of a minimum of 50% of the vegetative canopy on the land and the application should fail.

That is to say, the Commissioner decided that the application should fail because of the loss of 50% of the canopy of vegetation on the land. That is why the decision was made. This does not call for an express finding on the evidence given by Dr Martin. In my opinion the Commissioner gave sufficient reasons for his decision and this ground of appeal fails.

The Commissioner failed to give reasons for refusing to approve the development in part, namely the demolition of the existing house and the erection of the dwelling house and pool but excluding the tennis court, having led the applicant to the view that was in fact an alternative in the circumstances of the case.

The applicant apparently invited the Commissioner, if he was not persuaded to grant consent for the whole development, to excise the tennis court from any consent. It seems that on the first day of the hearing, the respondent's counsel conceded that if the appeal was simply for a development consent for the dwelling, the respondent would not oppose the application. Mr Tomasetti submits that the Commissioner erred in failing to give reasons for not accepting the applicant's submission that development consent could be granted to only part of the development.

Mr Preston submits that as with the previous ground no error of law was committed by the Commissioner in failing to refer to the question of a consent without the tennis court; the Commissioner was entitled to determine the development application before him; and the applicant did not formally amend the development application to remove the tennis court from the development for which consent was sought.

The development application as described by the Commissioner was for the demolition of an existing dwelling house and the erection of a new dwelling house, associated external terraces, a swimming pool, a tennis court and site landscaping work. The Commissioner notes that during the hearing the plans were amended to reduce the environmental impact of the development. I assume that the amended plans did not delete the tennis court.

The Commissioner's task was to determine the development application which was before him. There was no obligation on him to amend it or make other changes to it. It may be that the deletion of the tennis court may have had other consequences, such as changes to the landscaping works. If the deletion of the tennis court meant that there had to be some redesign of some other element of the development then there is nothing improper or unlawful in simply refusing the development consent for the proposal as presented. The criticism, however, is not that the Commissioner failed to simply delete the tennis court, but that he failed to give reasons for not doing so. With some hesitation, I am inclined to the view that the Commissioner was under no obligation to give reasons for not doing so. As I have said, his task was to determine the development application which was before him. If the applicant had tendered amended plans showing the development without the tennis court then the Commissioner would probably have been in a position to determine such amended application. But that did not occur. The Commissioner was only, in my opinion, required to give reasons for refusing the application as presented. Accordingly this ground of appeal also fails.

The Commissioner erred in law in that whilst asserting little reliance and weight upon the draft DCPs and the values statement (referred to under ground (1) above), he in fact relied upon them and gave them significant weight and applied them in assessing the development application.

No error of law is involved if there was a misattribution of weight to a relevant consideration. There are numerous statements to this effect in the authorities. In Ladhams v State Planning Authority (1982) 52 LGRA 32, Wells J held (at 35) that if the Planning Appeal Board (of South Australia) gives too much weight to some matter, that may be a mistake of planning principle but not a mistake of law. In Coles v Woollahra Municipal Council (1986) 59 LGRA 133, Stein J, in considering a submission that the decision of an assessor (as Commissioners were then called) was against the weight of the evidence or that the weight to be attached to portions of the evidence had been misapplied, held (at 140) that if some misattribution of weight had occurred it is not such as to amount to an error of law. In Randwick Municipal Council v Manousaki (1988) 66 LGRA 330, Clarke JA (with whom Hope and McHugh JJA agreed) said (at 334, 335): 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: Mahoney v Industrial Registrar of New South Wales (1986) 8 NSWLR 1 at 4 per Samuels JA. ...

There was no statutory or other obligation upon the assessor to deal with each of the matters listed in s 90(1) of the Planning Act. 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.

I also repeat, in this context, what was said by Mahoney JA in BP Australia Ltd v Campbelltown City Council (1994) 83 LGERA 274 at 277: But, within proper limits, it is for the authority to determine what weight should be given to each of the relevant considerations in the process of weighing them. If quite disproportionate weight is given to one consideration, discretion may miscarry and the decision may be set aside. But subject to such cases, it is open to the authority to decide what weight should be given to each of the considerations .

This ground of appeal does not raise any question of law.

None of the grounds of appeal have been established. It is therefore appropriate that I make the following orders: (1) Appeal dismissed.

(2) The applicant pay the respondent's costs of the appeal.

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.