Council of the City of Ryde v Sally Haddad executor of the estate of the late Jim Haddad

The Section 56A Appeal

1. The present appeal is brought pursuant to the provisions of s 56A of the Land and Environment Court Act 1979 ("the Court Act"), which provides: Class 1, 2, 3 and 8 proceedings - appeals to the Court against decisions of Commissioners (1) A party to proceedings in Class 1, 2, 3 or 8 of the Court's jurisdiction may appeal to the Court against an order or a decision of the Court on a question of law, being an order or a decision made by a Commissioner or Commissioners. (2) On the hearing of an appeal under subsection (1), the Court shall: (a) remit the matter to the Commissioner or Commissioners for determination by the Commissioner or Commissioners in accordance with the decision of the Court, or (b) make such other order in relation to the appeal as seems fit. ...
2. The grounds of appeal set out in Council's amended summons, filed 5 December 2016, are: 1. The Court failed to deal with a substantive element of the Appellant's case that the existing use the subject of the class 1 application could not be characterised as a commercial use for the purposes of clause 41(1)(e) of the Environmental Planning and Assessment Regulation 2000 ("Regulation") for the reason of the existing use being better characterised as "medical centre". 2. The Court erred on a question of law in finding that the existing use was capable of meeting the description of "business premises" and was therefore capable of being changed under clause 41(1)(e) of the Regulation. 3. The Court erred on a question of law in finding that the proposed development the subject of the class 1 application was permitted with development consent.
3. In its submissions in chief (pars 2 - 4), the Council reframed those grounds in these terms: Ground 1 2. Firstly that the Commissioner failed to deal with a substantive element of the Applicant's case - that the existing use could not be characterised as a "commercial use". Ground 2 3. This failure led the Commissioner to then fail to deal with the issue of whether the existing use was better described as a "medical centre" or a "business premises". Ground 3 4. As a consequence of the above failures the Commissioner erred on the question of permissibility.
4. Council submitted (par 6) that: ... the Court will find that each or all of the grounds raise a question of law which vitiates the Commissioner's decision. and (par 11) that: ... the decision of the Commissioner involved questions of law regarding the proper construction of clauses 41(1) and (2) of the [Regulation].
5. On 22 December 2016, Ms Haddad filed a Notice of Contention in the following terms: 1 The presumption of abandonment in s107(3) of the Environment (sic) Planning and Assessment Act 1979 (NSW) [("EPA Act")] is rebutted on the following grounds: i. The surgery remained in use by the medical practitioner over the period where the surgery was claimed to be abandoned. ii. The premises are still set up as a surgery, and no physical alterations have been made on the premises signifying abandonment. iii. From 2013 to the present, Dr Jim Haddad, while using the premises, was attempting to lease part or whole of the premises to other professionals indicating an intention of continual use as a medical surgery or business premises. 2 The use of the premises as a medical surgery can extend to the use of business premises in accordance with both Regulation 41(1)(e) and Regulation 41(3) of the [Regulation]; including the definition of 'Commercial Use'. If there was a change of the premises to another use, the new use is also to be considered as an existing use. 3 The premises fall into the definition of 'business premises' as defined in the Standard Instrument, pursuant to Regulation 41(3) of the [Regulation]. 4 Development standards in a LEP or the [RPSO] are not to be applied to new uses sought by the Respondent who has existing use rights as provided in Regulation 41. 5 Pursuant to Section 108(1)(b) of the [EPA Act] the regulations may make provision for or with respect to existing use, and in particular, for or with respect to the change of an existing use to another use. Regulation 41 makes this provision.
6. The question of abandonment (contention 1), which was a critical part of the Council's case" at first instance (Tp22, L38), was not pressed at the hearing before me (Tp16, LL23 - 24).

The Planning Regime

1. Clause 41 of the Regulation, to which reference is made in both the grounds of appeal and the respondent's notice of contention, relevantly provides: Certain development allowed (1) An existing use may, subject to this Division: (a) be enlarged, expanded or intensified, or (b) be altered or extended, or (c) be rebuilt, or (d) be changed to another use, but only if that other use is a use that may be carried out with or without development consent under the Act, or (e) if it is a commercial use - be changed to another commercial use (including a commercial use that would otherwise be prohibited under the Act), or (f) if it is a light industrial use - be changed to another light industrial use or a commercial use (including a light industrial use or commercial use that would otherwise be prohibited under the Act). (2) However, an existing use must not be changed under subclause (1) (e) or (f) unless that change: (a) involves only alterations or additions that are minor in nature, and (b) does not involve an increase of more than 10% in the floor space of the premises associated with the existing use, and (c) does not involve the rebuilding of the premises associated with the existing use, and (d) does not involve a significant intensification of that existing use. (e) (Repealed) (3) In this clause: commercial use means the use of a building, work or land for the purpose of office premises, business premises or retail premises (as those terms are defined in the Standard Instrument). light industrial use means the use of a building, work or land for the purpose of light industry (within the meaning of the standard instrument set out in the Standard Instrument (Local Environmental Plans) Order 2006).
2. The Standard Instrument LEP contains the following relevant definitions (some emphasis added): business premises means a building or place at or on which: (a) an occupation, profession or trade (other than an industry) is carried on for the provision of services directly to members of the public on a regular basis, or (b) a service is provided directly to members of the public on a regular basis, and includes a funeral home and, without limitation, premises such as banks, post offices, hairdressers, dry cleaners, travel agencies, internet access facilities, betting agencies and the like, but does not include an entertainment facility, home business, home occupation, home occupation (sex services), medical centre, restricted premises, sex services premises or veterinary hospital. Note. Business premises are a type of commercial premises - see the definition of that term in this Dictionary. commercial premises means any of the following: (a) business premises (b) office premises (c) retail premises health care professional means any person registered under an Act for the purpose of providing health care. health consulting rooms means premises comprising one or more rooms within (or within the curtilage of) a dwelling house used by not more than 3 health care professionals at any one time. Note. Health consulting rooms are a type of health services facility - see the definition of that term in this Dictionary. health services facility means a building or place used to provide medical or other services relating to the maintenance or improvement of the health, or the restoration to health, of persons or the prevention of disease in or treatment of injury to persons, and includes any of the following: (a) a medical centre, (b) community health service facilities, (c) health consulting rooms, (d) patient transport facilities, including helipads and ambulance facilities, (e) hospital. medical centre means premises that are used for the purpose of providing health services (including preventative care, diagnosis, medical or surgical treatment, counselling or alternative therapies) to out-patients only, where such services are principally provided by health care professionals. It may include the ancillary provision of other health services. Note. Medical centres are a type of health services facility - see the definition of that term in this Dictionary.
3. Unlike the Standard Instrument, older planning instruments (such as the RPSO) included the following definition of "professional consulting rooms" (AB Vol 1, tab 3, Statement of Rebecca Lockart, fol 42, par 37; and AB Vol 2, tab 3, p10): "professional consulting rooms" means a room or a number of rooms forming part of, attached to, or within the curtilage of, a dwelling-house and used by not more than 3 legally qualified medical practitioners, or by not more than 3 dentists within the meaning of the Dentists Act, 1934, who practise therein the profession of medicine or dentistry respectively, and, if more than 1, practise in partnership, and who employ not more than 3 employees in connection with that practice.

The Hearing before the Commissioner and her Decision

1. Council's case before the Commissioner acknowledged that the subject premises was used as a doctor's surgery immediately prior to 1 July 1979, but submitted (1) that that existing use was abandoned in 2014, or (2) that Council did not have power to approve Dr Haddad's DA, because it did not fit within cl 41 of the Regulation (AB Vol 1, tab 5, fol 75, LL29 - 36).
2. Council's position on cl 41 was, and remains, that both subclauses (a) and (b) excluded medical centres. The only distinction between (a) and (b) is how the service is provided to the public on a regular basis (Tp8, LL15 - 21).
3. The applicant for consent submitted to the Commissioner that the premises enjoyed existing use rights for the purpose of professional offices (Tp3, LL38 - 39), for not only doctors (Tp11, L15).
4. At the time of granting its 1964 approval, Council did not go beyond "doctor's surgery" to classify the approved use as "commercial premises" or any other, perhaps broader, type of use then permitted with consent (AB Vol 1, tab 5, fol 81, LL30 - 43 and fol 88, LL33 - 40). "Medical Centres" were not defined at that time, but Council's case now is that "what was approved was clearly a medical centre" (Tp9, LL6 - 7).
5. Commissioner O'Neill considered extensive factual material dating from at least 1960 (judgment at [5] - [6], and [20] - [21]), and the planning framework dating back to the CCPSO, under which the relevant historical consent was granted in 1964 ([9] - [16]). She also had the benefit of expert planning evidence provided by Rebecca Lockart ([18]).
6. In her judgment (at [19] - [26]), the learned Commissioner reasoned (emphasis added by me): 19 There is no dispute between the parties that the premises benefited from existing use rights as a doctor's surgery at the time the RPSO came into force in 1979 and prohibited that use in the applicable zone. The Council contends that the existing use as a doctor's surgery was abandoned by Dr Haddad in 2014, when there was an unauthorised change of use to office premises. ... 22 I am satisfied that Dr Haddad has established, on the basis of the evidence provided, that the use of the premises as a doctor's surgery has not been abandoned. 23 Council submits that the use for which consent was granted in 1964 was for a doctor's surgery. The use was variously referred to in documentation at the time the application was being considered by Council as 'professional rooms', 'surgeries', 'three surgeries', 'consulting rooms', 'offices' and 'doctor's surgery'. I accept Council's submission that the 'genus test' of characterisation is not relevant to this matter, as the existing use flows from an existing development consent (Botany Bay City Council v Workmate Abrasives Pty Ltd (2004) 138 LGERA 120 [14]). Clearly the purpose of the premises as approved was to provide accommodation for up to three doctors at any one time to carry out medical consultations with patients. However, nothing turns on characterising the existing use differently to Council's submission that it is a doctor's surgery, as the premises have the benefit of existing use rights and so the application for a change of use to 'business premises' is permissible pursuant to sub-cl 41(1)(e) of the EPA Regulations. 24 The proposal is to change the existing use from a doctor's surgery to business premises, as the existing use is a commercial use, and a commercial use can be changed to another commercial use, including a commercial use that would otherwise be prohibited under the EPA Act, under sub-cl 41(1)(e) of the EPA Regulations, subject to the limitations at sub-cl 41(2). 25 The definition of 'business premises' in the Standard Instrument LEP includes two alternative descriptions of the use, at (a) and (b), quoted above. The existing use most closely resembles the description in (a), 'an occupation, profession or trade (other than an industry) is carried on for the provision of services directly to members of the public on a regular basis'. The Council submits that the description of the use in (b) excludes medical centres, which is the equivalent of the 1964 approved use for a doctor's surgery. As the application is for a change of use, there is no reason why the applicant may not apply for a change of use consistent with the description in (b), but notwithstanding this, it is my understanding from Dr Haddad's submissions that he wants to use, or for others to use, the premises for professional consulting rooms, but not necessarily for medical consulting rooms. 26 I am satisfied that the change of use of the premises to business premises for the provision of professional or similar services directly to members of the public and subject to the limitations that any alterations and additions are minor in nature and do not involve a significant intensification of the existing use, is acceptable, as the proposal will not result in any additional environmental impacts. The future use of the premises as a business premises and any proposed minor alterations and additions are to be the subject of a future development application, as imposed by condition 20 of the conditions of consent at Annexure 'A'.
7. Ms Pearman (Tp7, L22) agreed that those quoted paragraphs are crucial to this appeal.
8. The learned Commissioner concluded her reasons (at [27]): 27 I am satisfied that, pursuant to sub-cl 41(1)(e) of the EPA Regulations, the proposal to change the existing use from a doctor's surgery to business premises, consistent with the definition of business premises in the Standard Instrument LEP at (a) 'an occupation, profession or trade (other than industry) is carried on for the provision of services directly to members of the public on a regular basis', is acceptable, subject to the limitations in sub-cl 41(2) of the EPA Regulations.
9. She then ordered (in [28]) that the appeal be upheld, and that Dr Haddad's DA (LDA2015/335) be approved, on annexed conditions, which included, as condition 20: Further Consent for Specific Use. A separate development application is to be submitted and approved by Council for the specific type of business premises and hours of operation of the business premises prior to operation of the premises.

The Key Principles

1. The key principles governing the determination of s 56A appeals are well settled.
2. I briefly summarized them in Botany Bay City Council v Botany Development Pty Ltd (No 2) [2015] NSWLEC 55 in these terms (at [5]): (a) the appeal is limited to a question of law, and not concerned with errors of fact; (b) the error of law must be identified by the Appellant, and shown to be of a sufficiently material character as to vitiate the entirety of the Commissioner's decision; (c) the Commissioner's reasons must be adequate, but should not be examined with a "fine tooth comb" in an endeavour to discover error; and (d) the Court is not to take an overly critical or "pernickety", legalistic approach in examining the Commissioner's decision, as if it were written by a lawyer.
3. More recently, Pepper J re-stated the principles more fully, in Tanious v Georges River Council [2016] NSWLEC 142, in these terms (at [10], citations omitted): (a) first, the appeal is only concerned with errors or questions of law and not questions of fact ...; (b) second, an overly critical examination of the Commissioner's decision for relevant error should not be employed ... The Commissioner's reasons for the decision must therefore be read as a whole and considered reasonably. A "verbal slip or infelicity of expression does not necessarily warrant drawing and (sic) inference of an error of law" ...; (c) third, the Commissioner must give adequate reasons for her decision. This means that she must refer to evidence that is important or critical to the determination of the principal or central issues in the case ... This does not mean, however, that every argument advanced by a party in support of these issues must be considered by the Commissioner or reasons given for accepting or rejecting it ...; (d) fourth, and as corollary to the principle above, if the decision of the Commissioner reveals an error on a question of law, the decision is only vitiated if the error is material to the decision made ...; and (e) fifth, an error will not be material to the decision if the matter complained of on appeal was a matter that was not the subject of submissions made to the Commissioner below in a way that called for a reasoned consideration of that matter ... A party is bound by the way it conducted its case at the hearing ...

Submissions

1. Both parties made written and oral submissions, and supported them by reference, not only to the learned Commissioner's judgment, but also to the transcript of the first instance hearing (AB Vol 1, tab 5).

Council's submissions in chief

1. The principal contested issues in the proceedings were (1) whether the existing use could be characterised as a commercial use, (2) the effect of cl 41(1)(e), and (3) the permissibility of Dr Haddad's DA.
2. The Standard Instrument divides "commercial uses" into "business", "office", or "retail", and Council submits (par 18): The difference between the classes lies principally in the manner by which commercial services are provided to members of the public.
3. "Medical Centre" is expressly excluded from the definition of "Business Premises", and is separately defined, but the Commissioner ([27]) "assigns the use of the [subject] Premises as a doctor's surgery into the class of Business Premises ..." (pars 19 - 21).
4. Council submits (pars 23 and 24) that: 23. ... the Commissioner simply concluded that the existing use was a commercial use without providing any or adequate reasons. 24. The Judgment does not deal with the Applicant's submission that the existing use could not be characterised as a commercial use by reason of being characterised as a "medical centre". Rather, the Judgment notes that the "proposal" is for a change in use to professional consulting rooms, "not necessarily for medical consulting rooms". Failing to address this issue amounted to a failure by the Commissioner to address a central plank of the Applicant's case. and that such failures amount to an error of law: Roads & Traffic Authority of New South Wales v Peak [2007] NSWCA 66.
5. Ms Pearman also cited Dranichnikov v Minister for Immigration and Multicultural & Indigenous Affairs ("Dranichnikov") (2003) 77 ALJR 1088; 197 ALR 389; [2003] HCA 26, in which Gummow and Callinan JJ said (at [26] and [27): 26 At the outset it should be pointed out that the task of the Tribunal involves a number of steps. First the Tribunal needs to determine whether the group or class to which an applicant claims to belong is capable of constituting a social group for the purposes of the Convention ... . That determination in part at least involves a question of law. If that question is answered affirmatively, the next question, one of fact, is whether the applicant is a member of that class. There then follow the questions whether the applicant has a fear, whether the fear is well founded, and if it is, whether it is for a Convention reason. 27 The Tribunal failed to decide the first question. It decided another question, whether Mr Dranichnikov's membership of a social group, namely, of "businessmen in Russia" was a reason for his persecution and relevantly nothing more. The Tribunal should have decided the matter which was put to it, whether Mr Dranichnikov was a member of a social group consisting of entrepreneurs and businessmen who publicly criticised law enforcement authorities for failing to take action against crime or criminals. and Kirby J said (at [87] and [88]): 87 This Court has repeatedly held that, for the issue of prohibition or mandamus under s 75(v) of the Constitution, it is necessary to demonstrate jurisdictional error on the part of the proposed subject of such relief ... . Thus, it is essential to establish something more than an error of law within jurisdiction. Difficult as it may sometimes be to differentiate jurisdictional and non-jurisdictional error with exactitude ... , in a case where there has been a fundamental mistake at the threshold in expressing, and therefore considering, the legal claim propounded by an applicant, the error will be classified as an error of jurisdiction. It will be treated as a constructive failure of the decision-maker to exercise the jurisdiction and powers given to it. 88 Obviously, it is not every mistake in understanding the facts, in applying the law or in reasoning to a conclusion that will amount to a constructive failure to exercise jurisdiction. But where, as here, the mistake is essentially definitional, and amounts to a basic misunderstanding of the case brought by an applicant, the resulting flaw is so serious as to undermine the lawfulness of the decision in question in a fundamental way.
6. Gleeson CJ dissented (at [1]), but on a "purely factual issue", and not on the "matter of principle" addressed by the majority judges (which also included Hayne J, who specifically agreed with Gummow and Callinan JJ).
7. Ms Pearman drew from Dranichnikov (Tp14, LL30 - 46): ... failing to understand, appreciate, deal with the case as propounded by the applicant before the commissioner is a failure which amounts to an error of law and we say that that is the first ground where the commissioner failed. There's nothing in her reasons which show that she has understood the council's case, in fact to the contrary she's misunderstood the council's case when you see the way at paragraph 24 that she has actively, in the middle of the paragraph, misunderstood the council's case. She's saying, "The council submits the description of the use in (b) excludes medical centres," that wasn't the council's case. The council in its written submissions which it addressed before her and in the way that it propounded its case was clearly saying that the application couldn't be approved because altogether it didn't meet the definition as required, it didn't meet the definition of business premises. It was subject to the specific exclusion of medical centre, so that was in respect of both (a) and (b) and the way that the commissioner has dealt with the case here is saying it really only excludes it in (b) and that is wrong.
8. Ms Pearman then said (Tp14, L48 - p15, L6): Having failed to fully understand the applicant's case and address the applicant's case we say the commissioner then failed to deal with the issue of whether the existing use was better described as a medical centre or business premises. You don't find anywhere in the judgment your Honour, any discussion about how that should be described, what was the approval in 1964 for other than, it was a doctor's surgery. Your Honour we say that was a second failing and that was the second error of law that the commissioner made and then finally as a consequence of those failures, the commissioner then erred on the question of permissibility.
9. In her oral submissions in chief, Ms Pearman also sought to respond to Ms Haddad's written submissions (summarised below). Ms Pearman submitted (Tp11, LL31 - 36) (1) that questions of statutory interpretation are questions of law, (2) that the Commissioner had to construe cl 41 and apply it to the facts, and (3) that the Commissioner "made an error in her construction of that clause".
10. Council argues that (Tp11, LL47 - 48) "a question whether facts fully found, fall within the provisions of a statutory enactment properly construed is a question of law".
11. Characterisation of the use of land is a question of jurisdictional fact, to be satisfied as "preliminary to the exercise of statutory power to approve a proposed development", and is amenable to judicial review: Reply subs pars 1 to 3, relying on Woolworths Ltd v Pallas Newco Pty Ltd & Anor ("Pallas Newco") (2004) 61 NSWLR 707.
12. In Trives v Hornsby Shire Council (2015) 89 NSWLR 268; [2015] NSWCA 158, Basten JA said, at [53] - [54]: 53 ... There have been further developments in judicial review, even in the decade since Pallas Newco was decided, which have tended to expand the grounds of review, for example by reference to a constructive failure to exercise a power, which may extend beyond caprice, arbitrariness and gross unreasonableness, at least (as here) where the primary facts are not in dispute. That is particularly so where the real issue, as revealed by the reasoning of the primary judge, turned upon the proper construction of the relevant environmental planning instruments. 54 In that context, there has been a further development: the principle that no question of law arose with respect to statutory language involving words in their ordinary everyday meaning has given way, in many circumstances, to the principle that, as words take their meaning from their context, the construction of statutory language will usually give rise to a question of law. ... These factors, in combination, make it unlikely that an application for judicial review will need to rely upon the somewhat confusing concept of "jurisdictional fact" in order to establish a ground of review in circumstances where there is truly an arguable issue as to validity of the exercise of a power.
13. Ms Pearman says (Tp12, LL24 - 25) that "that is precisely where we are here ...". The Commissioner (Tp13, LL4 - 6) "has not looked adequately at whether or not the existing use was better characterised as medical centre or office premises ...".

Haddad's submissions

1. In the respondent's submission, Council's main arguments before the Commissioner were abandonment (Tp16, L23), and application of the "genus" test (Tp16, L32), and Council is now seeking to run a different case (Tp16, L37).
2. Ms Haddad submits (Tp17, LL38 - 41) that, as the Commissioner identified, "the existing use flows from an existing development consent and the existing development consent was an approval that the premises be used as professional offices and flats", and that is a question of fact, which "can't now be reconsidered on appeal" (Tp18, LL1 - 2).
3. The definition of the nature of the existing use is a question of fact to be decided on the evidence provided to the Commissioner, and the Commissioner made her determination on that basis ([25]). Ms Haddad conceded that the question of whether such use meets a definition in an instrument is jurisdictional, and misconstruction is an error of law (Tp17, LL3 - 11).
4. Council failed to "provide or identify" evidence to support a characterisation as "medical centre", and did not argue, before the Commissioner, that use by a sole practitioner constituted a "medical centre". That characterisation was never put to the Court at first instance ..." (Tp15, L12; p17, LL36 - 37; and p18, LL8 - 9, and 46 - 47), and, if the Council's solicitor (Tp16, LL19 - 20) "did put the full definition to the commissioner at first instance, he did not go through the elements of that definition and say, this is characterised as a medical centre", that argument cannot now be made on appeal.
5. Medical centres are excluded only from paragraph (b) of the definition of Business Premises, because the exclusionary note to cl 41 applies to service provision, rather than an occupation or a trade, and the Commissioner found that the existing use, i.e. operating a doctor's surgery, closely resembled paragraph (a) (see [26]25 above, and Tp18, LL18 - 24).
6. That finding enabled the Commissioner to apply cl 41(1)(e) and (3), and Condition 20 requires a separate DA for a proposed change to another professional use.
7. In any event, Ms Haddad argued (Tp16, LL42 - 47): ... the doctor's surgery is not a medical centre on the facts ... [T]here has to be more than one person in a medical centre. From 1964 to 1982 there was only one doctor. Dr Howell ... was a sole practitioner. Dr Haddad practiced (sic) there for over 20 years as a sole practitioner, one doctor. A medical centre is not one doctor.

Council's submissions in reply

1. The doctor's surgery in the present case does not satisfy the statutory definition of "commercial premises" in cl 41(1)(e), or of "business premises" in cl 41(3); the Commissioner was required to give "particular meaning" to those phrases, but she misconstrued them (pars 9 to 11, and 17).
2. The premises were "purpose built" as a doctor's surgery in a residential flat building (Tp21, LL12 - 14, and p23, LL4 - 6).
3. The Council established that the subject surgery premises were used by more than one doctor at various times between 1982 and 1994, making it a "medical centre", and a submission was clearly made to the Commissioner that the use fitted the definition of "medical centre" (pars 14 - 16, and Tp23, LL8 - 45).
4. The exclusion in the definition of "business premises" applies to both sub-paragraphs (a) and (b): see DC Pearce and RS Geddes, "Statutory Interpretation in Australia", 6th ed 2006, at [12.3]; R v Scarlett; ex parte McMillan ("Scarlett") (1972) 20 FLR 349; and Tp13, LL20 - 36.
5. It was, therefore, an error of law to conclude (at [25]) that the existing use was "business premises", and capable of being changed under cl 41(1)(e).
6. Ms Pearman rejected the respondent's suggestion that she was seeking to recast the Council's case in any way from what Council argued before the Commissioner (Tp21, L35 - p22, L38).

Consideration

1. Having reviewed all the evidence and submissions at first instance, I can find in the Commissioner's decision no error on a question of law, notwithstanding the principle enunciated by Fox J in Scarlett ([57] above).
2. The Council has taken an approach on this appeal that appears to me to offend the injunctions in the authorities ([31] - [32] above) to avoid "fine tooth comb", "pernickety", "legalistic", or "overly critical" analysis of the Commissioner's reasons. The Estate's submissions are clearly to be preferred.
3. O'Neill C gave adequate - indeed comprehensive and very articulate - reasons for her conclusion. I cannot find even any "infelicity of expression" (32 above), but any slight faults of language that might be identified by other readers are not material to the decision she had to make.
4. I can neither add to, nor improve upon, what the learned Commissioner said ([26] and [28] above).

Conclusion

1. The appeal should be dismissed.
2. Costs on the appeal should follow the event, but costs of the adjournment on 15 March were reserved. There was no mention of costs in any of the submissions, so I will provide an opportunity for the question to be argued. However, I think each party should pay its own costs of the 15 March adjournment.

Orders

1. The Orders of the Court are: 1. The appeal is dismissed. 2. The appellant Council is to pay the costs of the respondent estate on this appeal, except for the costs of the adjournment on 15 March 2017, unless it files within fourteen (14) days a Notice of Motion seeking a different order. 3. The two-volume appeal book is returned to the Council.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 01 May 2018