City Plan Services Ltd v Sydney City Council

LEGISLATION CITED: Land and Environment Court Act 1979 Environmental Planning and Assessment Act 1979

DATE OF JUDGMENT DELIVERY: 08/11/1999

APPLICANT Mr J B Maston (Barrister) SOLICITORS Taylor Kelso LEGAL REPRESENTATIVES: RESPONDENT Mr W R Davison SC SOLICITORS Dunhill Madden Butler

JUDGMENT: IN THE LAND AND Matter No: 10860 of 1998 ENVIRONMENT COURT Coram: Sheahan J OF NEW SOUTH WALES 11 August 1999

This is an appeal pursuant to s 56A of the Land and Environment Court Act 1979 (" the Court Act ") against a decision of Senior Commissioner Jensen on 1 April 1999.

City Plan Services Pty Ltd had sought, in accordance with s 96 of the Environmental Planning and Assessment Act 1979 (" the EP&A Act "), to modify a condition imposed on a consent for a redevelopment of what was formerly the Sydney Eye Hospital at 50-72 Sir John Young Crescent, Woolloomooloo.

The condition was said to have " the effect of requiring the applicant to reconstruct the footpath, kerbing and guttering " adjoining the subject site to " a greater or lesser extent ". The extent of the work required was to depend upon the findings of a study undertaken by the applicant.

This application was deemed to be refused, pursuant to s 82 of the EP&A Act, and the applicant appealed against this refusal.

Senior Commissioner Jensen allowed the appeal, and replaced the relevant condition with one which apportioned the responsibility for the paving work, effectively making the applicant responsible only for providing 30 per cent of the paving in the immediate vicinity of the total development of the applicant.

The role of the Court with respect to this appeal is not to re-consider the merits of the Senior Commissioner's decision. Rather, the Court must determine whether the learned Senior Commissioner has fallen into an error of law .

The grounds of this appeal by the Council, are as follows:

1. The Senior Commissioner erred in law in having found that the subject proceedings were to be distinguished from Progress & Securities v North Sydney Council and identified no test for the exercise of his discretion in place of Progress Securities .
2. The Senior Commissioner erred in law in imposing condition 31 shall be replaced by the following:

' Condition 31 (a) The Applicant shall carry out a dilapidation survey of the public footway adjoining the site and submit it to the Council prior to any works commencing. (b) The Applicant shall meet the cost of any repairs to the road, public footway, kerb or guttering arising from the construction of the development. (c) The Applicant shall be responsible for providing 30% of the paving in the immediate vicinity of the total development of the Applicant. This work shall be carried out in accordance with the standards and requirements of the Central Sydney Paving Design Policy. (d) The Council shall indemnify the Applicant from any future liability in regard to work constructed in accordance with (c) above. (e) The Applicant will retain existing street trees and install new trees where required in accordance with the Central Sydney Street Tree Policy 1994. ' In that:

(a) failure to identify the test and to give reasons for the decision made outlining the basis for the exercise of the discretion is an error of law.

8. During the hearing of this appeal Mr Davison SC identified the issues in the following terms:

1. Was the Senior Commissioner's discretion exercised in an accountable way?
2. Did the Senior Commissioner satisfy his judicial duty to give reasons? Question 1 - The Senior Commissioner's discretion

Before both the Senior Commissioner at first instance, and before me in this appeal, much attention was paid to the case referred to in the notice of appeal, namely Progress and Securities Pty Ltd v North Sydney Municipal Council , a decision of Bignold J, reported at (1988) 66 LGRA 236.

Relevantly, in Progress and Securities the applicant sought to modify a condition of consent under s 102 of the EP&A Act (see now s 96 of the amended Act). The condition at issue was imposed under s 94 and required a compulsory contribution. Bignold J stated (at 242-243): The applicant in the present case promotes its application for modification solely on the ground of alleged invalidity or unreasonableness (not in the "Wednesbury" technical sense of that term) of the respondent's decision to impose the condition when originally granting the development consent. Yet the applicant accepted the condition by paying the cash contribution without protest and by carrying out the approved development. The applicant had by virtue of s 97 of the Environmental Planning and Assessment Act a comprehensive right of appeal if it was dissatisfied by the respondent's determination of the development application. It did not exercise that right of appeal. Belatedly (that is, after the fulfilment of the condition by the payment of the cash contribution by the applicant without protest, after construction of the approved development was well advanced and after the expiration of the statutory limitation of twelve months prescribed by s 97 for instituting an appeal) the applicant makes its application under s 102.

His Honour further stated (at 245): A related discretionary consideration that weighs strongly against granting the application in the present case is the conduct of the applicant in accepting the benefit of the development consent but seeking to be relieved of the burden created by the imposition of condition D22, not only belatedly but after the burden had been accepted by the applicant.

Senior Commissioner Jensen distinguished Progress and Securities , on the facts, saying (p 2): It has been suggested that because the applicant have (sic) acted on the Council's consent, it is in some way precluded from seeking to have conditions amended. I am conscious of the matter that has been referred to, determined by Bignold J. It seems to me that it is clearly distinguishable in factual terms from what is before the Court in this instance.

The evidence in Progress and Securities was that the building was " well advanced " when the modification was sought. Additionally, the s 94 contribution had already been paid. Here, whilst the consent had been acted upon, nothing had been done to meet condition 31. The applicant was also not aware of the conditions under the pavement. It follows that the costs of constructing the pavement under the original condition 31 were not able to become known to the applicant until after the consent was acted upon. For these reasons, in my opinion, the Senior Commissioner was correct in distinguishing Progress and Securities on its facts.

The Respondent's submissions further allege that in distinguishing Progress and Securities , the Senior Commissioner failed to identify any test for the exercise of the discretionary power conferred on him in the proceedings by s 96. This failure, the Respondent submits, constitutes an error of law, as it does not pass the test laid down by Deane J in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321. His Honour stated (at 367): If a statutory tribunal is required to act judicially, it must act rationally and reasonably. Of its nature, a duty to act judicially (or in accordance with the requirements of procedural fairness or natural justice) excludes the right to decide arbitrarily, irrationally or unreasonably.

There is no evidence before me to indicate that the Senior Commissioner acted arbitrarily, irrationally or unreasonably. In fact, he stated (p 2) that: " The salient issue, it seems to me, is that the applicant says the condition that has been attached by the Council, requiring reconstruction of the footpath, is intrinsically unreasonable " (my emphasis).

He went on to say (at p 2): Notwithstanding what has been said, it does seem to me that Newbury [District Council] v The Secretary of State for Environment [[1981] AC 578] remain firmly wedded to the acceptability of conditions attaching to consents. The tests are quite clear and in this context it seems to me that ascribing the general responsibility for the replacement of a footpath to the applicant because of new development is difficult to justify…

By implication, it is apparent that the Senior Commissioner applied a test of reasonableness in exercising his discretion.

I conclude that the application of such a test is in accordance with his duty, and that, therefore, he did not commit the error of law alleged in par 1 of the Notice of Motion.

Although it is of no consequence to my determination, I must add that I am not convinced that a failure to identify a test to be applied constitutes an error of law. The duty upon statutory tribunals, and hence the Commissioners of this Court, is to act rationally and reasonably in the exercise of their discretion. Whilst this may include the identification of some elucidated test, I do not think that a failure to do so leads to an error of law.

The Respondent alleges that the Senior Commissioner failed to give any reasons for his decision to modify condition 31 of the development consent, and that, in failing to do so, the Senior Commissioner committed an error of law .

The duty to give reasons is an important aspect of the judicial process. McHugh JA in Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 (at 279) discussed the basis of the duty thus: 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… thus the articulation of reasons provides the foundation for the acceptability of the decisions by the parties and by the public. Secondly, the giving of reasons furthers judicial accountability…

Thirdly, under the common law system of adjudication, courts not only resolve disputes - they formulate rules for application in future cases …. 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.

Whilst it is well established that the duty to give reasons applies to judges, the same duty does not apply, at common law, to decision-makers making purely administrative decisions (see Public Service Board of New South Wales v Osmond (1986) 159 CLR 656 at 662-670 per Gibbs CJ). This begs the question of whether the Senior Commissioner, when determining this matter, served as a judicial officer or a pure administrator. Mr Davison submitted that the Senior Commissioner's decision is a judicial, and not an administrative, decision. He cited North Sydney Council v Ligon 302 Pty Ltd (1995) 87 LGERA 435 as authority for this proposition, and referred the Court, in particular, to this passage in Kirby ACJ's judgment (at 442): 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... 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... 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.

The written submissions of the Respondent also address this issue, saying (at par 17): The giving of reasons, "sufficient" to demonstrate the lawfulness of the decision, is an "incident" of judicial office … and it is submitted that there is no good legal or public policy reason why the decisions of judges and commissioners of a superior court (namely, the Land and Environment Court), who are all judicial officers of that court, should be treated any differently in that respect. A commissioner of the Court is not in the position of a "pure administrator", who is ordinarily not bound to give reasons in for (sic) an administrative decision...

I conclude that a Commissioner of this court is bound by a duty to give reasons.

The extent of the duty to give reasons was relevantly discussed in Brimbella Pty Ltd v Mosman Municipal Council (1993) 79 LGERA 367, a case which also concerned an appeal under s 56A of the Court Act. Kirby P, who agreed with Priestley JA, and with whom McHugh JA agreed, stated (at 368):

… I believe that it is undesirable in an appeal from a lay tribunal, where the appeal court is confined to a question of law, that it should examine too narrowly the words used in the decision, at least unless these words are central to the decision involved... There are powerful reasons of policy, quite apart from loyalty to the statutory language, that would suggest restraint in criticising the language used in their decisions by lay tribunals.

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 Coles v Woollahra Municipal Council (1986) 59 LGRA 133 Stein J stated that judges should not apply a "fine tooth comb" approach when examining decisions of lay Assessors [Commissioners] for errors of law (at 138).

It is necessary for me to set out some relevant parts of the Senior Commissioner's judgment in order to examine his reasoning.

At p2: What seems to be particularly relevant in this matter, and so far as I can remember agreed to by both the expert witnesses, is that the paving in the vicinity of this site is already in a state which would require its replacement.

At p 2-3: Notwithstanding what has been said, it does seem to me that Newbury v The Secretary of State for Environment remains firmly wedded to the acceptability of conditions attaching to consents. The tests are quite clear and in this context it seems to me that ascribing the general responsibility for the replacement of a footpath to the applicant because of new development is difficult to justify given what I have seen in the drawings and what I have been told. It does seem to me, nevertheless, that there will be benefits to the applicant not only in terms of functional access but also in terms of visual presentation of the development. However, that does create a quandary for me in that the way that one would normally expect such a notion to be responded to is by apportioning the benefit as between the public in general and the particular user.

At p 3-4: I have come to the conclusion that firstly there is properly a responsibility to carry out some form of apportionment in a policy going to public works of this sort, and secondly, in this instance, it would be reasonable to do so, it [sic] not only because of the extent of works involved but also because of the circumstances of the site, that include its proximity to South Sydney Council and the form of construction of works as contemplated by the City Council as they are undertaken in the neighbouring municipality.

I consider that the reasons given by the Senior Commissioner were adequate.

As there was no great dispute over the facts, except as to the extent of the work required and its costing, there was need for the Senior Commissioner to deal with the facts in detail when giving his reasons.The Senior Commissioner gave sufficient reasons to expose his train of thought, and the weight he attached to several factual matters that related to condition 31, such as the extent of the work and the circumstances of the site, including both its proximity to South Sydney Council and the form of construction works.

I can find no error of law on the part of the Senior Commissioner as alleged in par 2 of the Notice of Motion.

The Senior Commissioner fulfilled his obligations to act judicially, rationally and reasonably and, in doing so, gave adequate reasons.

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