Castle Constructions Pty Ltd v North Sydney Council

Currey v Sutherland Shire Council (1998) 100 LGERA 365; Great Wall Property Group Pty Ltd v North Sydney Council [2005] NSWLEC 574; King v Great Lakes Shire Council (1986) 58 LGRA 366; CASES CITED: Parramatta City Council v Hale (1982) 47 LGRA 319; Purcell v Electricity Commission of NSW (1985) 60 ALR 652; RTA v Damjanovic [2006] NSWCA 166; Weal v Bathurst City Council (2000) 111 LGERA 181 ; Zhang v Canterbury City Council (2001) 51 NSWLR 589

APPLICANT Mr T F Robertson SC SOLICITORS Aitken McLachlan Thorpe LEGAL REPRESENTATIVES: RESPONDENT Mr M G Craig QC with Ms H P Irish (barrister) SOLICITORS Mallesons Stephen Jacques

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

11010 of 2005 Castle Constructions Pty Limited v North Sydney Council

JUDGMENT 1 Talbot J: By letter dated 31 August 2005 the respondent council notified the applicants' architect that development application No. 269/05 seeking development consent for the demolition of existing buildings and the erection of a 31 storey commercial/residential building at 136-140 Walker Street, North Sydney had been determined by refusal of consent. The applicant appealed to this Court. On 12 January 2006 the Senior Commissioner dismissed the appeal and confirmed that the development application be determined by refusal. The applicant has appealed against the decision of the Senior Commissioner pursuant to s 56A of the Land and Environment Court Act 1979. The amended notice of motion dated 3 May 2006 identifies 14 grounds of appeal in respect of which it is alleged the Senior Commissioner erred in law. 2 Following notification of the development application 75 objections were attracted. 3 The council identified 5 reasons for refusal when determining the development application whereas the statement of issues relied upon at the hearing before the Senior Commissioner contained seven issues of which 4 were pressed as follows: · The proposal will isolate the site to its north, No. 142 Walker Street; · The proposal's height, scale and massing is excessive; · The proposal breaches the BHP ("Building Height Plane"); and · The setbacks are inadequate.

The Judgment Below 4 After providing a general description of the locality of the site and its proximity and relationship to existing and proposed developments in the immediate area the Senior Commissioner outlined the proposal and its history followed by an identification of the relevant planning controls as follows: · North Sydney Local Environmental Plan 2001 ("the LEP") · North Sydney Development Control Plan 2002 ("the DCP") · State Environmental Planning Policy 65 - Design Quality of Residential Flat Development ("SEPP 65") · Residential Flat Design Code ("RFDC") · State Environmental Planning Policy 1 - Development Standards ("SEPP 1") 5 Specific reference is made to the evidence of eleven resident objectors who gave their evidence during a site visit. Two planning experts gave evidence before the Commissioner, namely Mr Geoff Mossemenear, Executive Assessment Planner on behalf of the council, and Terence Byrnes, a consulting architect and planner on behalf of the applicant. 6 After hearing evidence in relation to the prospect of amalgamation of the subject site with No. 142 Walker Street the Commissioner concluded that the failure to amalgamate the subject site with its northern neighbour will not lead to an inferior result and that the isolation of No. 142 by the proposal is not a reason for its refusal. 7 The Commissioner found that the building heights and massing controls found in cl 28D of the LEP (set out in full in this judgment at [21]) and the building height plane in cl 30 (see [22] of the Commissioner's judgment) are all controls that must be given serious consideration and varied only when variation is justified. He rejected the proposition that the maximum height of RL 195 set by cl 28D has primacy over other controls. 8 Notwithstanding his doubts that an objection pursuant to SEPP 1 was possible in respect of the control of overshadowing the Commissioner concluded that the impact could not be considered minor or moderate, even taking account of the fact that the shadow falls on bedrooms rather than living areas. 9 In relation to the building design and public benefits controlled by cl 28D(5) the Commissioner makes the following observation at [25]:

It is out of scale with almost everything around it, including the Century Plaza building, which itself is out of scale with its surroundings. It dominates the street and destroys any remnant of character left in Walker Street. Its impact, in terms of scale, form and massing within the context of the locality, landform and neighbouring development, and in particular lower scale development adjoining the North Sydney Centre, is unacceptable. 10 Although Mr Mossemenear on behalf of the council did not suggest that the proposal should be entirely within the BHP the Commissioner expressed the opinion that the objection prepared by Mr Byrnes on behalf of the applicant was not well-founded as it was inconsistent with several of the objectives of the BHP in that it fails to achieve compatibility with adjoining residential zones and it fails to minimise adverse effects in adjoining residential zones. He accepted the evidence of Mr Mossemenear that the proposal should have a maximum RL of 103m notwithstanding that there are other tall buildings nearby such as the Centennial Plaza Building. 11 Commissioner Roseth accepted the front setback from Walker Street as appropriate and, subject to limiting the height to RL 103, that the setback to the Western boundary of 6.5m was adequate. The proposed setback from the southern and northern boundaries was rejected. 12 The Senior Commissioner expressed his final conclusion that: [39] With the exception of the overall height requirement of RL 195, this proposal breaches almost all of the council's numerical planning controls with respect to scale, height and bulk. It breaches most of the qualitative controls aimed at producing a harmonious relationship between streets and buildings. It has a devastating effect on solar access to the bedrooms in the Century Plaza building and on views from a minority of dwellings in 79-81 Berry Street. [40] While no density control applies to the site, I note that the proposed building contains more than 3,000m2 of office space and over 100 apartments on a site that is double the size of a medium suburban parcel. These simple statistics should give an indication of the extent to which it is overdevelopment. [41] Throughout the hearing I found Mr Mossemenear's evidence highly persuasive. He did not rely on the council's numerical controls rigidly, but tempered their application taking into account the practicalities of the site and the fact that there are some large buildings already in the vicinity. [42] For the above reasons the appeal is dismissed. Inconsistency between LEP 2001 Div 4 North Sydney Centre and Div 5 Mixed Use zone in particular cl 30 BHP 13 The subject land is situated within the Mixed Use zone under the LEP. It is also within the North Sydney Centre. The LEP specifically makes provisions in relation to the control of development within the North Sydney Centre and Division 5 deals with controls to be applied in the Mixed Use zone. The applicant agrees that the subject land is within the North Sydney Centre and within the Mixed Use zone and relevantly that it is adjacent to the Residential C zone. The relevance of the proximity to the Residential C zone will become apparent when the provisions of the LEP are fully explained and properly understood. 14 Clause 14 of the LEP requires the consent authority to take into account the aims and objectives stated in the plan and states that consent must not be granted to development which is inconsistent with the specific aims of the plan, the objectives of the zone or the objectives of the controls. 15 The respondent relies on the general aim of the plan to achieve development that is appropriate to its context and enhances the amenity of the North Sydney community and environment. There are also specific aims that refer to the promotion of the character of the neighbourhood and development which is compatible with neighbouring development in terms of bulk, scale and appearance. 16 The objectives of the Mixed Use zone set out in the zoning table are as follows: (a) encourage a diverse range of living, employment, recreational and social opportunities, which do not adversely affect the amenity of residential areas, and (b) create interesting and vibrant neighbourhood centres with safe, high quality urban environments with residential amenity, and (c) maintain existing commercial space and allow for residential development in mixed use buildings with non-residential uses at the lower levels and residential above, and (d) promote affordable housing. 17 Clause 28A of Division 4 is an important provision in the LEP and provides as follows: 28A Division to prevail

The provisions of this Division prevail over all other provisions of this plan, to the extent of any inconsistency, except for Part 4 - Heritage provisions. 18 The applicant relies upon the effect of cl 28A as an express paramountcy clause which calls for a test of inconsistency demonstrated either by a direct conflict between two provisions or an intention that one provision states exhaustively or comprehensively the application to a particular topic. 19 The objectives of the North Sydney Centre are set out in cl 28B of the LEP as follows: (a) to maintain the status of the North Sydney Centre as a major commercial centre within Australia, (b) to require arrangements for railway infrastructure to be in place before additional non-residential gross floor area is permissible in relation to any proposed development in the North Sydney Centre, (c) to ensure that railway infrastructure, and in particular North Sydney Station, will enable and encourage a greater percentage of people to access the North Sydney Centre by public transport than by private transport and will: (i) be convenient and accessible, and (ii) enable a reduction in dependence on private car travel to the North Sydney Centre, and (iii) be adequate to achieve no increase in car parking, and (iv) have the capacity to service the demands generated by development in the North Sydney Centre, (d) to discourage use of motor vehicles in the North Sydney Centre, (e) to encourage access to and within the North Sydney Centre for pedestrians and cyclists, (f) to allow for 250,000 square metres (maximum) non-residential gross floor area in addition to the estimated existing (as at the commencement of this Division) 700,000 square metres non-residential gross floor area, (g) to prohibit further residential development in the core of the North Sydney Centre, (h) to encourage the provision of high-grade commercial space with a floor plate, where appropriate, of at least 1000 square metres, (i) to achieve a variety of commercial space, (j) to encourage the refurbishment, recycling and rebuilding of older buildings, (k) to encourage a diverse range of employment, living, recreation and social opportunities, (l) to promote high quality urban environments and residential amenity, (m) to provide significant public benefits such as open space, through-site linkages, childcare and the like, (n) to improve accessibility within and to the North Sydney Centre, (o) to protect the amenity of residential zones and existing open space within and nearby the North Sydney Centre, (p) to prevent any net increase in overshadowing of any land zoned residential or public open space or identified as a special area, (q) to maintain areas of open space on private land and promote the preservation of existing setbacks and landscaped areas, and protect the amenity of these areas. 20 In particular the applicant relies upon the provisions of cl 28B(o) and (p) directed to the protection of the amenity of residential zones and existing open space notwithstanding the first objective in (a) to maintain the status of the North Sydney Centre as a major commercial centre within Australia. 21 It is useful to set out cl 28D in full as it contains significant relevant controls appertaining to the context dealing with the North Sydney Centre generally. Clause 28D is in Division 4 of the LEP and provides: 28D Building heights and massing

(1) Building heights and massing objectives The specific objectives of this clause are as follows: (a) to achieve a transition of building heights generally from 100 Miller Street (Northpoint) and 79-81 Berry Street (being the location of the tallest buildings) stepping down towards the boundaries of the North Sydney Centre, (b) to promote a height and massing that has no adverse impact on land in the public open space zone or land identified as a special area on Sheet 5 of the map marked "North Sydney Local Environmental Plan 2001 (Amendment No 9) - North Sydney Centre" or on heritage items, (c) to minimise overshadowing of land in the residential and public open space zones or identified as a special area on Sheet 5 of the map marked "North Sydney Local Environmental Plan 2001 (Amendment No 9) - North Sydney Centre", (d) to protect the privacy of residents within and around the North Sydney Centre, (e) to promote scale and massing that provides for pedestrian comfort, in terms of weather protection, solar access and visual dominance, (f) to encourage consolidation of sites for provision of high grade commercial space and provision of public benefits. (2) Building heights and massing controls Consent must not be granted to the erection of a building within the North Sydney Centre, unless: (a) the height of the building will not exceed RL 195 AHD, and (b) there is no net increase in overshadowing of any land between the hours of 9am and 3pm, 21 June outside the composite shadow area, as shown on the map marked "North Sydney Local Environmental Plan 2001 (Amendment No 9) - North Sydney Centre" (except land that is in the Road or Railways Zone), and (c) there is no net increase in overshadowing, between 10am and 2pm, at any time of the year, of any land that is within the North Sydney Centre and is within the public open space zone or within a special area as shown on Sheet 5 of the map marked "North Sydney Local Environmental Plan 2001 (Amendment No 9) - North Sydney Centre", and (d) there will be no increase in overshadowing that would reduce the amenity of any dwelling that is outside the North Sydney Centre and falls within the composite shadow area referred to in paragraph (b), and (e) the site area is not less than 1,000 square metres. (3) State Environmental Planning Policy No 1 - Development Standards does not apply to a requirement made by subclause (2) (a), (b) or (c) (including a requirement varied under subclause (4)). (4) Minor variation of overshadowing controls The consent authority may make a determination to vary, to a minor extent only, the operation of subclauses (2) (b) or (c), or both, in respect of a particular development application, but only if: (a) it is satisfied that the variation is justified due to the merits of the development application and the public benefit to be gained, and (b) it is satisfied that any increase in overshadowing will not reduce the amenity of any land, and (c) in relation to a variation of the operation of subclause (2) (b), the variation will result in not more than 2 hours net increase in overshadowing of land referred to in that paragraph between the hours of 9am and 3pm, 21 June, and (d) in relation to a variation of the operation of subclause (2) (c), the variation will result in not more than 15 minutes net increase in overshadowing of land referred to in that paragraph between the hours of 10am and 12 noon, and no net increase between the hours of 12 noon and 2pm, on any day. (5) Building design and public benefits When determining whether or not to grant consent to a development application in respect of land within the North Sydney Centre, the consent authority must consider: (a) the impact of the proposed development in terms of scale, form and massing within the context of the locality and landform, the natural environment and neighbouring development and in particular lower scale development adjoining the North Sydney Centre, and (b) whether the proposed development provides public benefits such as open space, through-site linkages, community facilities and the like, and (c) whether the proposed development preserves important view lines and vistas, and (d) whether the proposed development enhances the streetscape in terms of scale, materials and external treatments, and provides variety and interest. 22 It is instructive to note the specific objective of achieving a transition of building heights generally from the tallest buildings stepping down towards the boundaries of the North Sydney Centre (cl 28D(1)(a)) while at the same time encouraging high density commercial development in mixed use buildings. 23 The DCP contains a character statement for the North Sydney Centre including an illustration of the transition referred to in cl 28D(1)(a) of the LEP. 24 Clause 30 in Div 5 of the LEP provides for a building height plane ("BHP") for land in the mixed use zone where it adjoins or is adjacent to land within the residential or open space zone. The stated objectives of the BHP are: 30 Building height plane controls

(1) Building height plane objectives The specific objectives of the building height plane controls in the mixed use zone are to: (a) ensure compatibility between development in the mixed use zone and adjoining residential or open space zones, and (b) minimise adverse effects on land in adjoining residential or open space zones in relation to ventilation, views, building separation, solar access and light and to avoid overshadowing of windows, landscaped areas, courtyards, roof decks, balconies and the like. 25 If the illustration in the DCP is accepted as being demonstrative of the intention for the provision of a transition of building height from the tallest buildings down towards the boundaries of the North Sydney Centre a building height to RL 175 AHD could be achieved on the site. The applicant claims that the RL of the proposal is 162 AHD. However if the BHP is applied to the subject land it would produce a building with an RL of less than 90m. The Senior Commissioner accepted that this would be unreasonable and that in his opinion an RL of 103 would be acceptable. At RL 103 any proposed building would be 12 storeys whereas a strict application of the BHP would result in a building of 5 storeys. The applicant relies on the consequential variation in achievable height as demonstrating an inconsistency between the provisions of the LEP. 26 Mr Robertson SC appears for the applicant. He says the fundamental conflict between Division 4 of the LEP and cl 30 is with the objective for building height and massing. It is his argument that the specific objectives in cl 28D(1) leave no room for an entirely different control such as a BHP. Therefore the two provisions are plainly incompatible in the circumstances of the case. Clause 28D makes it plain that it was the intention to control height by reference to overshadowing of specific land but otherwise to leave height uncontrolled, unless the site area was less than 1000m2 or the height of the building exceeded RL 195. Conversely, the BHP resolves the objectives by achieving compatibility with adjoining residential and open space zones and minimising overshadowing in an entirely different way which, according to Mr Robertson, "has a presumptive operation whether or not surrounding land is overshadowed". 27 Moreover, the matters that cl 28D(5) requires the consent authority to consider are to be balanced with specific matters, such as the public benefits achieved by the proposal, whereas cl 30 is directed solely towards protecting amenity. In other words, cl 28D rejects the primacy of a control such as the BHP which gives preference to the adjoining residential area, particularly at the edge of the North Sydney Centre. 28 It is alleged by the applicant that the Senior Commissioner determined that height at the subject site was controlled by cl 30. Although he accepted that a variation of the BHP was appropriate nevertheless his conclusion about the breach of the BHP and his construction of cl 30 permeated his decision. Thus the Commissioner's view regarding the applicability of cl 30 led him to consider subjective factors such as view loss, overdevelopment, incompatibility with adjoining residential zones and adverse impacts on the adjoining residential zones whereas the objectives of cl 28D(1) would apply an entirely different planning intent to the subject land. Therefore, the result should be that the subject development proposal is permissible under the special provisions of the LEP relating to the North Sydney Centre which were introduced to create a CBD and to encourage high density commercial/residential development in the Mixed Use zone. 29 Mr Robertson summed up the applicant's position as follows: The purpose of cl 28D is, amongst other things, to determine an appropriate building height for the land. Under cl 30, building height above the 45 degree height plane is not permitted. Clauses 28B, 28D and Sheets 2 and 5 authorise a much higher building. The provisions are incompatible. They cannot both be obeyed and hence one must prevail over the other. 30 The Senior Commissioner quite clearly placed significant weight on the application of the BHP and decided that the proposal was inconsistent with the several objectives of the BHP and that the proposal should have a maximum RL of 103m. 31 Mr Craig QC, who appears for the respondent, makes the point that the so-called paramountcy provision in cl 28A in Division 4 of the LEP does not displace the presumption that two laws made by the one legislature are intended to work together. Furthermore cl 30 in Division 5 is not wholly inconsistent with the provisions of Division 4 nor does it become inconsistent by its application to the subject site because:

1. Division 5 cl 30 provides for a building height plane where a site adjoins a residential zone, which is the case here.

2. Division 5 cl 30 was not impliedly repealed by the provisions of Division 4 which were inserted later on 28 February 2003.

3. The provisions of Division 4 apply to more zones than just the mixed use zone.

4. The provisions of Division 4 are not general provisions and Division 5 cl 30 is not a specific provision such as to facilitate an argument that, by cl 28A:

b) Council expressed an intention to derogate from the latter

5. Division 5 cl 30 can be read as a proviso or supplement to Division 4. The provisions are capable of independent existence without any inconsistency.

6. Division 5 cl 30 is not otherwise "subject to" the provisions of Division 4.

7. The building height plane control in Division 5 cl 30 has work to do in determining the appropriate height, bulk and scale adjoining a residential zone.

8. Clause 30 is compatible with specific objective (o) in Division 4 cl 28B North Sydney Centre objectives. 32 Clause 28D facilitates the erection of buildings in accordance with the heights and massing objectives in subclause (1) including the specific objective to achieve a transition from the highest buildings down towards the boundaries of the North Sydney Centre including the Mixed Use zone. Clause 30 compliments that objective by specifying how the transition is achieved at the edge where land is adjoining residential zones, as is the case with the subject land. The controls in cl 28D recognise that taller buildings can impact in a general sense of overshadowing and privacy beyond the North Sydney Centre area. Clause 30 deals with the particular aspect of the impact around the perimeter adjoining residential areas where the issues of ventilation, views, building separation, solar access, light and overshadowing are likely to be more pronounced. The latter, in my view, is not an inconsistency with the application of the provisions found in Division 4. It is an explanation or clarification of the control to be applied under the particular circumstances of sites adjoining the residential areas. 33 Irrespective of whether the argument was raised below, which I think in fairness to the applicant it probably was, albeit not as an argument based on legal inconsistency, I am not satisfied that the Senior Commissioner made any legal error by having regard to the effect of the BHP in cl 30. 34 Division 5 cl 30 provides for a BHP where a site adjoins a residential zone and is capable of application independent of or in conjunction with the provisions of Division 4. It is consistent with the objective (o) in cl 28B for the North Sydney Centre in particular namely to "protect the amenity of residential zones and existing open space within and nearby the North Sydney Centre" (emphasis added). 35 Clauses 28B(o), (p), 28D(1)(a), (1)(c), (1)(d) and (5) are generally directed to the impact on residential areas. Clause 30 is entirely consistent with, and indeed responsive to, those objectives in order to ensure an acceptable transition and compatibility between the North Sydney Centre and the adjoining residential zones. Roseth SC recognised this fact at [32]: The proposal is inconsistent with several of the objectives of the BHP. It fails to achieve compatibility with adjoining residential zones and it fails to minimise adverse effects on land in adjoining residential zones. I accept that there are some other buildings nearby that are out of scale with their neighbours, notably the Century Plaza building. However, this is not a reason to allow another building that would dwarf the Century Plaza building. 36 The language of cl 28D(2)(a) does no more than express in terms the overall general limit for the height of buildings within the North Sydney Centre subject to any minor variation in accordance with cl 28D(4). The BHP prescribed by cl 30 imposes a specific control to be applied to the actual height of a specific building at the edges of the North Sydney Centre subject to the exercise of the consent authority's discretion under SEPP 1. 37 I am unable to accept the applicant's argument to the effect that cl 28D provides an exhaustive statement on height, massing and overshadowing and building design within the North Sydney Centre. In the context of the subject site, located as it is adjacent to a residential area, cl 30 is consistent with a number of the objectives expressed in cl 28D itself. The control imposed by cl 28D(2)(c) and (d) is directed at the general impacts of high buildings up to RL 195 in height irrespective of the location of the building and its actual height whereas cl 30 deals with the specific controls on design, including height, applicable on the perimeter of the North Sydney Centre. 38 If cl 30 applied to every site in the North Sydney Centre there would be a strong argument to support the applicant's contention of inconsistency. Limited, as it is, to the identified areas, namely adjoining residential or open space zones, it is no more than part of the total bundle of controls designed to ensure that development in the Centre does not cause adverse impacts on nominated sensitive areas. That the learned Commissioner understood this is reflected by what he said at [21] and [22]: [21] It can be seen that clause 28D(2)(a) of the LEP establishes the maximum height of RL 195 for the site. However, the height is also controlled by sub clauses 28D(2)(b), (c) and (d), 28D(4) and (5) and by the BHP in cl 30. [22] A great deal of Mr Byrnes' defence of the proposal is based on the assumption that the maximum height of RL 195 has primacy over other controls, so that where other controls suggest a height considerably below RL 195, then they should not be stringently applied. I do not see anything in the LEP that sanctions this construction. In my opinion, all controls must be given serious consideration and varied only when variation is justified. 39 He did not in my view make any legal error in applying cl 30 or by being prepared to consider a reasonable variation of the standard in that clause, at least to the extent conceded by the council's planner. 40 For all the above reasons I agree with the submissions made by the respondent's counsel to the Commissioner and reinforced to me on appeal "that there are not 'two inconsistent provisions which cannot be reconciled as a matter of ordinary interpretation' (Purcell v Electricity Commission of NSW (1985) 60 ALR 652 and 657) because the requirement in cl 28D(2)(a) to not exceed RL 195 AHD can be reconciled with the BHP provision (cl 30) as a matter of ordinary interpretation". Whether cl 28D(2)(d) is a Development Standard 41 The Commissioner did not express a final view whether subclause 28D(2)(d) is a development standard notwithstanding his earlier decision in Great Wall Property Group Pty Ltd v North Sydney Council [2005] NSWLEC 574 that it was. He nevertheless considered the objection made by the applicant as if it was made under SEPP 1 and found that it was not well founded. The better view is that the subclause contains a development standard being a provision by or under which a requirement is specified in respect of an aspect of development including the shape of any building and in particular its location, siting, bulk, scale, shape, height or design, all of which are controlled in some respect by the measure of an increase in overshadowing. The doubt expressed by the Commissioner did not lead him into any consequential error of law that vitiated his decision. 42 The rejection of the SEPP 1 objection is found at [24] of the Senior Commissioner's judgment: The gist of the justification in the Objection is that the shadow impact is for an hour and a half in the afternoon and falls only on bedrooms. The diagrams show that for much of that period, all 20 floors of the building are affected. I do not think that the impact could be considered minor or moderate, even taking account of the fact that it falls on bedrooms rather than living areas. The Objection is not well founded. The proposal breaches cl 28D(2). 43 The first argument raised by the applicant is that the Commissioner did not ask the correct question and applied the wrong test by referring to the floors of the building rather than individual dwellings. This ground is not made out as the Commissioner makes an express reference to bedrooms, which, after all, are parts of dwellings irrespective of whether they are within flats or individual dwelling houses. 44 The second argument is that rather than taking into account the impact on individual dwellings the Commissioner only had regard to the composite impact on the total number of bedrooms comprised in the affected 20 floors of the building. However what he did decide as a non-appellable fact was that the impact of an hour and a half of overshadowing on bedrooms was not minor or moderate. As the respondent argues it was only necessary for there to be a reduction of amenity in a single dwelling. 45 The applicant accepts that the casting of the shadow in the early afternoon on some bedrooms may have an impact. However that does not necessarily reduce the amenity of the dwellings. This is particularly so where, as with the buildings in question, all the dwellings will be constructed so as to face the sweeping views of the Harbour Bridge, the city and Sydney Harbour in the opposite direction. Nonetheless the impact on amenity was solely a matter for judgment and opinion by the Commissioner. 46 Other issues are raised, for example, as to whether all twenty floors referred to in [24] are affected. The abovementioned alleged errors of fact, as framed, even if sustained are not grounds for an appeal confined to errors of law. 47 Although the Commissioner did not provide a fulsome explanation of his reasoning he nevertheless made it clear that in his opinion the objection was not well founded because the impact could not be considered minor or moderate. It is implicit in that finding of fact that in his opinion the objective of protecting the amenity of dwellings was not fulfilled. 48 However Mr Robertson raises the critical matter of the failure of the Commissioner to identify whether there would be any "increase in overshadowing" that would reduce the amenity of any dwelling. The existing shadow impact on the affected 20 floors of the Century Plaza is not identified anywhere in the judgment. In order for SEPP 1 to apply it must first be shown that the development standard will not be complied with. The development standard in cl 28D(2)(d) requires that there be no increase in overshadowing. Notwithstanding an assertion to the contrary by the respondent the Commissioner does not identify the degree of non-compliance gauged against any existing overshadowing and hence did not say whether the increase would reduce the amenity of any dwelling. His judgment and opinion are directed to the effect of the shadow of the proposal on the Century Plaza building within the composite shadow area shown on the LEP map without any account of the real or possible effect from other development. The abovementioned omission raises an error of law as no proper test for non-compliance with the standard has been demonstrated. The Commissioner's finding of fact that the impact could not be considered minor or moderate reveals an error of law in that he misdirected himself in respect of the test to be applied (Winten Property Group Ltd v North Sydney Council (1999) 130 LGERA 79). Inconsistency Between cl 28D(5) of the LEP and SEPP 65 49 The applicant claims that cl 28D(5) is inconsistent with SEPP 65 and is therefore displaced by cl 6 of the SEPP. Clause 6 provides, in the event of inconsistency between the SEPP and another environmental planning instrument, the SEPP prevails to the extent of the inconsistency. 50 Clause 28D(5) of the LEP, inter alia, requires the consent authority to consider in terms of scale, form and massing the impact of the proposed development within the context of the locality and landform, the natural environment and neighbouring development (in particular lower scale development adjoining the North Sydney Centre) whereas cl 30(2)(b) of SEPP 65 requires the design quality of residential flat development to be evaluated in accordance with the design quality principles. Principle 1 in Part 2 of SEPP 65 cl 9 states that good design responds and contributes to its context which involves identifying the desirable elements of desired future character in the case of a precinct undergoing a transition. The applicant contends that because it cannot be doubted the subject land and surrounding land is undergoing a transition cl 28D(5) is inconsistent with Principle 1. 51 The applicant says that the Commissioner disregarded SEPP 65 entirely and that he failed to have regard to the desired future character statement for the subject land when determining the issue of urban design and accordingly his conclusion is contrary to design quality Principle 1. The character statement in the DCP has specific provisions regarding skyline setbacks and building design. 52 The Commissioner was certainly aware that SEPP 65 applied as he said so in [6] when he also mentioned that "Development Control Plan 2002 (the DCP) applies including the area character statement for the Central Business District." I regard cl 28D(5) as a general statement not in terms confined to a consideration of the present character of the surroundings, as the applicant submits. SEPP 65 amplifies what context is intended to cover in terms of SEPP 65 but in my view does no more than emphasise what context means generally and particularly when used in a town planning sense. Such an approach is consistent with the meaning of "context" attributed by the Australian Oxford Dictionary: the circumstances relating to something under consideration. 53 The future development envisaged for an area is equally relevant to its current character. 54 So far as it is relevant I do not consider cl 28D(5) to provide any inconsistency with SEPP 65. However a different question is whether the Commissioner gave "proper, genuine and realistic consideration" to both provisions. There was a duty on the part of the Senior Commissioner to give the required level of consideration as is demonstrated by many judicial decisions. 55 Taking relevant matters into account calls for more than merely referring to them. There must be a process of evaluation sufficient to warrant the description of the matters being taken into consideration (Weal v Bathurst City Council (2000) 111 LGERA 181 Giles JA at 201 citing Parramatta City Council v Hale (1982) 47 LGRA 319 at 335-6, 339 and King v Great Lakes Shire Council (1986) 58 LGRA 366 at 384; Currey v Sutherland Shire Council (1998) 100 LGERA 365 and 374-5). 56 The Chief Justice observed in Zhang v Canterbury City Council (2001) 51 NSWLR 589 at 601: The test was whether the Commissioner had given "proper, genuine and realistic consideration to the provisions of the DCP". This formulation is derived from the judgment of Gummow J in Khan v Minister for Immigration and Ethnic Affairs (1987)14 ALD 291 and see Broussard v Minister for Immigration and Ethnic Affairs (1989) 21 FCR 472 at 483, per Gummow J. As indicated by this Court in North Sydney Council v Ligon ( [ North Sydney Council v Ligon 302 Pty Ltd [No 2] (1996) 93 LGERA 23] at 28), this formulation was in substance the equivalent of the test of "real consideration" applied to the predecessor section of s 79C of the Environmental Planning and Assessment Act in Parramatta City Council v Hale (1982) 47 LGRA 319 at 331 and 335-336 and 338-339: see also Bruce v Cole (1998) 45 NSWLR 163 at 185-186. A number of equivalent formulations appear in the case law: see M Aronson and B Dyer Judicial Review of Administrative Action , 2nd ed (2000) Sydney, LBC Information Services at 225. Care must be taken that this category of judicial review or appeal on question of law is not elided into a review on the merits or an appeal on the facts ( Bruce v Cole (at 186)). 57 I cannot be satisfied from [25] of his judgment that the Commissioner paid any particular regard to the aspect of context specifically alluded to in cl 9 of SEPP 65 namely the desired future character of the precinct as stated in planning and design policies contained in the DCP except perhaps where he refers in passing to front setback in the North Sydney Centre Planning Area (Central Business District) Character Statement at [33]. However that omission when considered in the light of the finding that was open to him in respect of the breach of cl 30 of the LEP may not necessarily be such a critical matter that, taken alone, justifies a remitter to the Commissioner on that issue. 58 The judgment will only be vitiated if the Commissioner failed to consider a matter which he, as the decision maker acting in the role of the council as consent authority, was bound to consider and which was material (Minister for Aboriginal Affairs v Peko-Wallsend Ltd & Ors (1986) 162 CLR 24). The error has to be one upon which the decision depends so the decision is vitiated by the error (Leichhardt Municipal Council v Seatainer Terminals Pty Ltd (1981) 43 LGRA 409). Before finally deciding whether the failure to consider this issue justifies a remitter I must finally determine the other issues raised on appeal. Failure to Take Into Account North Sydney Centre (Central Business District) Character Statement 59 It is further alleged by the applicant as a separate issue that despite his recognition that the DCP and the desired future character were relevant considerations the Commissioner does not appear to take them into account anywhere in the course of determining questions relating to solar access, view, context, setbacks or building design. Hence the claim is there was also a failure, on this account, on the part of the Senior Commissioner to give effect to s 79C of the Environmental Planning and Assessment Act 1979. 60 It is contended that he made judgments about these matters only in the narrower context of cl 28D(2), 28D(5) and 30 of the LEP. Moreover the applicant claims the development complied with the relevant parts of the character statement. I am not in a position to confirm this. Nevertheless, it is said by the applicant the failure to consider these matters otherwise than in the context of the abovementioned qualitative provisions of the LEP rather than the Character Statement produced a fundamentally unbalanced judgment. 61 The failure to consider the detailed criteria in the DCP and Character Statement in my view is unlikely to mitigate against the sweeping findings of the Commissioner at [25] which generally encompass the issues of scale, form and massing as they relate to locality, landform and neighbouring development being generally the same criteria. However the fact remains that the judgment of the Commissioner provides no explanation of how he took into account the matters he was required to consider by the Character Statement. He applied his own subjective planning opinion albeit objectively but appears to have ignored the objective planning controls identified by the applicant. He does not dismiss them as being irrelevant or of insignificant weight. They were relevant matters to be taken into account in accordance with the principles reiterated in Zhang and Weal. They were not. Setbacks 62 The Residential Flat Design Code in SEPP 65 is included in the DCP by cl 6.2.d.v. as follows: Provide adequate separation between windows of habitable rooms and balconies, consistent with SEPP 65. Table: Habitable buildings separation Building height (metres) Separation between habitable bedrooms Separation between habitable balconies & non-habitable rooms Separation between non-habitable rooms Up to 12 12 9 6 12-25 18 13 9 25 and above 24 18 12

63 The setback issue was defined in the Amended Statement of Issues as follows: The Residential Flat Design Code (SEPP 65) incorporated by s 6.2.d.v. NSDCP 2002 requires building separation between 18 and 24 metres for the height proposed, this requires at a least a nine metre setback from the side and rear boundaries, the proposal provides a setback of 5 metres from the western boundary, 2.5 from the southern boundary and 3 metres from the eastern boundary.

64 I mentioned earlier in this judgment that the Commissioner found the front and western setbacks to be adequate although he was not satisfied with the southern setback or the setback from the northern boundary as appears from his judgment at [35] to [38]. 65 The People Telecom building is a commercial office building setback 15m from its northern boundary with the subject site. 66 Clause 6.2.d.v. addresses separation between habitable buildings. The applicant points out the People Telecom building is a commercial building. Although the Commissioner expresses the view that a separation of 18m between the two buildings is clearly adequate he does not in terms draw upon the provisions of the DCP to reach a conclusion. He expressed the opinion that it was not reasonable to use the 15m setback of the People Telecom building as justification for building close to the common boundary "thereby destroying the amenity that the neighbour was trying to achieve in adopting the generous setback". He observes as a matter of common principle that where a separation of 18 m "is desired" each development should provide 9m. His consideration of the appropriate setback from the southern boundary concentrates upon the impact of reducing the setback of the proposal to 3m on the amenity of the good northern exposure and pleasant courtyard provided for the People Telecom building within its own site. 67 I am unable to concur with the applicant's submission that the Senior Commissioner misconstrued the application of the DCP provision by applying it to the separation of the proposal from the building located across the southern boundary. As I understand the Commissioner's judgment he disagrees with the proposed setback from the southern boundary of 3m, but accepted that a 9m setback would unreasonably reduce the width of a potential building on the subject site and therefore accepted the suggestion made by the council's planner that the appropriate setback for the tower element would be 6m whereas the podium may be setback 3m. Even if the consideration of the setback from the southern boundary does not strictly arise out of the defined issue, as the applicant contends, nevertheless it was an appropriate matter for consideration and was dealt with adequately by the Commissioner. 68 In determining what he considered to be an appropriate setback from the northern boundary the Commissioner gave consideration to the evidence of Mr Mossemenear and Mr Byrnes respectively and the potential for future development on the adjoining property and made the determination relying on the general planning principle that a development should not rely on neighbouring sites for its amenity and ultimately preferred the evidence of the council planner. 69 I can find no justification for the applicant's claim that the Senior Commissioner erred in law in applying cl 6.2.d.v. of the DCP to determine whether an appropriate setback was provided from either the southern or northern boundary.

Conclusion 70 Although the Commissioner may have covered the field in [25] and [39] nonetheless the obligation to provide reasons for his decision requires more than a catch-all generalisation that coincidentally touches on the various and detailed provisions in respect of the individual planning issues and should explain how those provisions have been considered, applied or rejected. 71 It has been said many times that a "fine tooth comb" approach should not be applied to the decisions of commissioners (Brimbella v Mosman Municipal Council (1985) 79 LGRA 367). However I find that errors of law have been identified and substantiated and the matter should be referred for further hearing by a Commissioner, including the Senior Commissioner, in accordance with these reasons. Generally an order for remitter should only be made if such a remitter could possibly produce a different result more advantageous for the successful party on the appeal on the basis that the relevant error could reasonably be supposed to have had some influence upon the result (RTA v Damjanovic [2006] NSWCA 166 and the authorities cited at [112] by Tobias JA). Although it appears to be unlikely having regard to the effect of cl 30 of the LEP and the Commissioner's view regarding adequate setback, it is nonetheless conceivable that a re-consideration of the development application taking into account all the relevant matters might lead to a different result. I am not persuaded that each of the matters are of paramount importance to the determination on their own but taken together they are sufficiently critical to warrant remitter for re-assessment. 72 I agree with the overriding submission by the applicant that the Commissioner expresses his dislike of the proposal in trenchant and powerful terms and appears to have given his individuated preferences priority over the provisions and intent of the planning scheme. However I do not agree that the views expressed are such that I should make an order or recommendation that he be disqualified from hearing the matter on remitter. That decision I will leave to the exercise of the discretion of the Chief Judge when re-listing the matter. 73 The orders are:

2. Proceedings remitted to a Commissioner for determination in accordance with these reasons.

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