Crown Atlantis Joint Venture v Ryde City Council

4 The report of Mr Sanger was tendered and admitted at the hearing without objection. Mr P R Clay, who appeared for the respondent council, then made an application to the commissioner to rely upon the additional expert evidence of Ms Morrish. Mr J J Webster, who appeared for the applicant, objected. After some lengthy debate the commissioner admitted Ms Morrish's report. The commissioner also admitted without objection the reports of Dr Lamb and Mr Ludvik. The commissioner's decision in the appeal was reserved. As I understand the published decision, the commissioner largely accepted the views of Ms Morrish in the preference to these of the court appointed expert, Mr Sanger.

5 The present appeal from the commissioner's decision is, of course, limited to a question of law: Court Act, s 56A. The applicant relies upon the following grounds of appeal which are said to amount to errors of law: (1) The commissioner erred in law when he admitted into evidence the report of Ms Morrish despite the objection of the applicant; (2) The commissioner erred in law in taking into account irrelevant matters, namely: (a) the objectives of the Master Plan (referred to in Development Control Plan No. 39 ("DCP 39")); (b) the provisions of the Opportunities Plan in the Appendix to the Master Plan; (c) the provisions of the DCP 39, including the Master Plan, in determining the design objectives for the site; (d) evidence as to the construction on the street corner which was not an issue to be determined in the proceedings. (3) The commissioner failed to take into account relevant provisions of DCP 39, namely: (a) that cl 3.3 was not applicable; and (b) that DCP 39 in conjunction with the local environmental plan were the controls to which regard must be had to determine the design objectives for the site. (4) The commissioner was in error in determining that a building height was appropriate to the site and which the building infringed. (5) The commissioner was in error when determined that cl 3.3 of DCP 39 applied to the site and that the proposal would not meet the intention of the control. (6) The commissioner failed to determine the case on the issues as particularised in the amended statement of issues. (7) The commissioner failed to properly assess, and give reasons for, or resolve rationally, the differences between the expert witnesses.

It is immediately apparent that some of these grounds overlap.

Ground 1: Admission of the report of Ms Morrish 6 When there has been a court appointed expert to inquire into and report upon a question, a party to proceedings may not adduce evidence of any other expert on the question except with the leave of the Court: Pt 39, r 6 of the Supreme Court Rules 1970 ("SC Rules"), which also applies in this Court.

7 As I understand the submission of Mr J J Webster SC, who again appears for the applicant in this appeal, it is alleged that the commissioner admitted the report without regard to the proper principles of admissibility, namely: (a) the practice of the Court to appoint a court appointed expert when a case involves expert evidence, as is apparent from Practice Direction No. 1 of 2005; (b) any additional expert evidence will not be allowed except with leave specially granted by the Court; (c) the practice of the Court for the joint conferencing of experts, if more than one, and the production of a joint report, which did not occur in this case: Practice Direction No. 17, cl 19(c); and (e) the fact that, in the present case, the report of Ms Morrish raised issues outside those which were originally particularised. 8 The last point requires some explanation. The council's amended statement of issues, which was relied upon at the hearing identified the following issues: DCP 39 - Height Plane 1. The proposed development does not comply with cl 3.3. of Development Control Plan No. 39 - Eastwood Town Planning Centre ("DCP 39"), in particular the height plane measured from the western side of Trelawney Street. Discrepancies in Plans 2. ….[Omitted] Issues raised by objectors 3. Traffic and Parking …. 4. Design · The design of the building does not enhance the Eastwood town Centre. 5. Privacy · The proposal will have adverse privacy impacts on the properties on the southern side of Rowe Street. 6. Height · The height of the building is excessive. 7. Precedent · Approval of this development in breach of the height plane provisions in DCP 39 will set an adverse precedent for future development in the Eastwood Town Centre. 9 At the commencement of the hearing, Mr Clay, appearing for the council, re-framed issue 1 in the following way: CLAY: The issue encapsulated by the statement of issue can be reframed this way. Whether the proposal properly reflects what is expected by the Development Control Plan in relation to its presentation to Trelawney Street and the vicinity of Trelawney Street, that is [,] is there too much building to the Trelawney Street boundary part of the property such that there is a non-compliance with the control, fails to achieve the objectives of the control, and in particular fails to observe the intended village character and human scale of the buildings and their relationship to the street which is demanded by the DCP. When I tender it I'll come to the statement of issues and see that is picked up but that is the issue in the case. 10 Mr Clay then stated that issue 2 was no longer an issue. Effectively the only issues remaining were issue 1 and matters raised by objectors, which included the height of the building. This appears from the following exchange: COMMISSIONER: So that really only leaves issue 1, the proposed development does not comply with cl 3.3, in particular the height plane measured from the western side of Trelawney Street. WEBSTER: Plus the objectors. COMMISSIONER: Plus? WEBSTER: The objectors. There's a couple of objectors. COMMISSIONER: Objectors? WEBSTER: Objectors, yes. COMMISSIONER: Having heard what you've just said, Mr Clay, the only issue that's remaining there apart from what the residents might have to say, the only issue of concern to council it seems is issue 1 which is about the height plane. It's not about the issue that you described a few minuted ago. Or is it? CLAY: It is the same issue. COMMISSIONER: That's the same issue, is it? CLAY: What I articulated is encapsulating issue 1. COMMISSIONER: It was further and better particulars for issue 1. CLAY Yes. WEBSTER: Well we don't agree with that. COMMISSIONER: I'm sure you're pleased to hear that, Mr Webster. WEBSTER: Yes. COMMISSIONER: Well you did say, Mr Clay, that you talk about presentation to Trelawney Street. CLAY: And whether there's too much building. COMMISSIONER: Too much building, and then the objectives of that control. CLAY: Yes. 11 After hearing Mr Clay's application for leave to rely upon the additional expert evidence of Ms Morrish and Mr Webster's objection, the commissioner said: COMMISSIONER: Well, it strikes me - and you may well have some more to say about this but I'll tell you how I'm thinking so far - it strikes me that the Registrar in the manner of case management contemplated, having heard from yourselves or your instructing solicitors or whoever, that the scheme of this case would involve the provision of a visual assessment report by Dr Lamb and then it was contemplated that a report in reply might be provided. Now, the Registrar set down a time frame for that but it's pretty well established now that compliance with case management directions in terms of a time frame should not be used as a means for rejecting evidence. So delays in dates might cause difficulties in terms of dealing with that and there are means of attending to that, whether it be in terms of an adjournment and costs or whatever, so the late filing and serving of reports is not something that I would factor into the equation. So, prima facie I am of the view that both reports should come in. I guess I'm forming a fairly firm view on it as I speak but those reports should be accepted by the Court only to the extent that they relate to the issue and to the issue in terms of the expertise of the person giving the evidence. Now, you know clearly what that means, Mr Clay, that latter statement that I've made, but that's a matter for submissions. CLAY: Sometimes it can go to admissibility but one can often deal with it in submissions. You should have Mr Ludvik's report in reply to that equation. I wouldn't have any objection to that being tendered. COMMISSIONER: So rather than making the courageous decision I'll play the wimp and probably in the interests of fairness overall and if there are difficulties in terms of dealing with these reports in the time frame that we've got I can hear from you on that but having had a quick scan of the reports I can see certainly how the Morrish report extends the issue and this is perhaps a situation where the issue could have been better particularised but Morrish is in. 12 The report of Ms Morrish was then tendered and admitted. Also tendered and admitted were the reports of Dr Lamb and Mr Ludvik, the latter being in reply to the report of Ms Morrish.

13 It is clear, in my view, that nothing that occurred in the course of admitting the report of Ms Morrish discloses any error of law. As noted above, when there is a court appointed expert, a party to proceedings may not adduce evidence of any other expert on the question except with the leave of the court: SC Rules, Pt 39, r 6. In the usual course of events it is only the court appointed expert whose evidence will be admissible on the question that has been referred to that expert for report; hence the need for leave to call any other expert. Typically, one would expect a court to grant leave where, for example, it may be alleged that there are some flaws in the methodology adopted by the court appointed expect, or where something may have been overlooked by the court appointed expert. But the category of cases in which leave may be granted is not closed. The primary purpose for the appointment of a court expert is to provide assistance to the court. The court retains the discretionary power to grant leave to call another expert. The discretion to do so is unfettered. If the court is of the opinion that it will be assisted by the admission of evidence of another expert, then it may, in the exercise of its discretion, admit that evidence. The report of Ms Morrish goes beyond the simple question as framed in issue 1 in the amended statement of issues. The report does, however, relate to the issue as reframed by Mr Clay when opening the case for the council, as noted in par [9] above, including an examination of the objectives of the relevant control. The report also relates to the general issue of height raised by objectors.

14 In an appeal against the exercise of discretionary power relating to a matter of practice and procedure, the appellate court will take a restrained approach: Re Will of T B Gilbert (1946) 46 SR 318 at 323, Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170, City of Melbourne v Hamas Pty Ltd (1987) 62 LGRA 250. In an appeal against the exercise of a discretionary power the appellate court must be satisfied that the decision was plainly wrong: Gronow v Gronow (1979) 144 CLR 513. That is, there must be a clear error of law, such as acting on a wrong principle, or allowing extraneous or irrelevant matters to affect the decision, or there has been a failure to take into account some material consideration: House v The King (1936) 55 CLR 499 at 504-505 per Dixon, Evatt and McTiernan JJ; Australian Coal and Shale Employees Federation v Commonwealth (1956) 94 CLR 621 at 626-628 per Kitto J; Australian Broadcasting Commission v Parish (1980) 29 ALR 228 at 332 per Bowen CJ. There is no evidence of any such error in the admission of the report of Ms Morrish the present case.

15 Moreover, the applicant did not claim any prejudice by service of Ms Morrish's report. Indeed, the applicant caused a report in reply to the served and which was also admitted into evidence.

Ground 2: Taking into account irrelevant matter 16 In order to appreciate this ground, it is necessary to have some understanding of DCP 39. As the commissioner noted in his reasons, at par [11], the focal point for consideration must be DCP 39. Clause 1.1 of the DCP 39 states: This plan should be read in conjunction with the following documents: · Ryde Local Environmental Plan No. 110 · Ryde Planning Scheme ordinance · Eastwood Centre Planning Study and Master Plan

17 Clause 1.3 states: This plan aims to revitalise Eastwood through policies which: … accord with the planning principles, objectives and standards expressed in the Planning Study and Master Plan for each centre . 18 Clause 2.1 is headed "Master Plan" and states, inter alia: A Master Plan has been completed for Eastwood, which guides the development of the Village through to the year 2020. This Urban Village Plan is based on a set of strategies that have been developed to guide the future growth of the Eastwood. Supporting this Plan is a range of enhancement and infrastructure projects designed to improve the amenity of the area and increase the safety of those using the centre. In assessing any development application relating to land within any centre, the council must take into consideration the aim of this plan that development should be consistent with the planning principles set out below. 19 Clause 2.2 is headed "Eastwood Urban Village - Character Statement" and states, inter alia: Through a consultation program focused on the development of the Master Plan for Eastwood the community has expressed its expectations for the future of Eastwood. In the future, Eastwood will be a place specifically designed for the enjoyment and utility of pedestrians and a place which allows convenient access for people between home, work, shopping and leisure. It will also be a place which has a high level of aesthetic amenity at street level; have safe attractive and convenient public spaces; be a vibrant, viable and profitable commercial centre; and contain an appropriate mix and arrangement of uses, which satisfactorily integrate with existing surrounding activities. 20 As I have noted, the commissioner in his reasons acknowledged that the focal point for consideration of the application must be DCP 39. The applicant's main criticism is directed to par [13] of the commissioner's decision: [13] Section 2.1 of DCP 39 contains Guiding Principles and refers to the Eastwood Commercial Centre Planning Study and Masterplan (October 1998) ("the Masterplan"), which provides guidance for the development of the town centre to the year 2020. Because the masterplan is incorporated by reference into DCP 39 it can therefore be given commensurate weight. 21 In setting out his findings, the commissioner referred to and relied upon the provisions of the Master Plan in addition to DCP 39. It is apparent that, in setting out his findings, the commissioner gave as much weight to the Master Plan as he did to DCP 39 and his reasons refer to both documents.

22 Mr Webster's submission, as I understand it, is that the commissioner fell into legal error in giving the Master Plan commensurate or equal weight to DCP 39. According to his submission it is the development control plan which must be the focal point of consideration: Zhang v Canterbury City Council (2001) 51 NSWLR 189 at 602; 115 LGERA 313 at 387; and it is asserted that the commissioner failed to give proper, genuine and realistic consideration to the provisions of DCP 39: Zhang at 601.

23 I am unable to accept the submission. In Zhang it was held by Spigelman CJ (Meagher and Beazley JJA concurring) that a development control plan had to be considered as a fundamental element in or a focal point of the decision-making process (at 387). A reading of the commissioner's reasons shows that this was so. It is also clear that the commissioner gave the Master Plan commensurate or equivalent weight. But he did not fall into legal error in so doing.

24 The Master Plan in the present case was not an irrelevant consideration. It was expressly incorporated into DCP 39 which I have described above at par [16]-[19]. Moreover, the matters for consideration in a development application as set out in s 79C of the EP&A Act, which include any relevant development control plan, are not the only matters to which a consent authority may have regard: Carstens v Pittwater Council (1999) 111 LGERA 1 at 12 [25].

25 One of the matters to be taken into consideration under s 79C is the public interest (sub-s (1)(e)). In Terrace Tower Holdings Pty Ltd v Sutherland Shire Council (2003) 29 LGERA 195, Mason P (Spigelman CJ and Ipp JA concurring) said that matters relevant to the public interest touching a particular application are not confined to those appearing in published environmental planning instruments (at 209). Moreover, Mason P went on to say that nothing in the EP&A Act stipulates that environmental planing instruments are the only means of discovering planning policies or the public interest (at 210). It is a matter for the decision-maker to determine the appropriate weight to be given to the matters to be taken into consideration: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 1 at 41. If some misattribution of weight has occurred then that does not amount to an error of law: Coles v Woollahra Municipal Council (1986) 59 LGRA 133 at 140. In Terrace Tower Holdings, Mason P also said (at 206 [57]: "The weight to be given to a planning instrument does not involve a question of law, so long as legally irrelevant matters are not taken into account". So also in this case the commissioner made no error of law in giving "commensurate" weight to the Master Plan.

26 The next complaint made about the commissioner's decision is that he applied the provisions of the "Opportunities Plan" in the Appendix to the Master Plan. There is, however, no mention in the commissioner's reasons of the Opportunities Plan. Even if the commissioner did apply the Opportunities Plan then, for the reasons outlined above in relation to the Master Plan, that would not be unlawful, nor would it otherwise amount to an error of law. For the same reasons there would be no error of law in determining the objectives for the design of the site and taking them into consideration.

27 It is next submitted that the commissioner placed reliance upon evidence as to the construction of the building on the street corner of the site, which was not an issue to be determined in the proceedings. The subject site is on the corner of Rutledge Street and Trelawney Street. It is sufficient to note that a reading of the commissioner's reasons shows that his consideration of the construction of the corner element was not the principal reason for refusing the development application. In the present case it is clear from reading of the commissioner's decision that he had already decided to refuse the development application before mentioning, almost in passing, the unsatisfactory corner element of the building. If the commissioner was in error, then it is not a material error. An error must be more than an error at some stage of the decision-making process. It must be an error that effects the ultimate decision. That is, an error will only vitiate a decision if it materially affects the decision: Parramatta City Council v Hale (1982) LGRA 319 at 335; Guideline Drafting & Design Pty Ltd v Marrickville Municipal Council (1988) 64 LGRA 275; Minister for Immigration v Thiyagarajah (2000) 199 CLR 343; 74 ALJR 549.

28 In any event, however, although this was not an issue raised by the council, it was one of the issues raised by objectors and it was thus necessary for the commissioner to consider and deal with it. This complaint about the commissioner's decision does not disclose any error of law.

Ground 3: Failure to take into account the relevant provisions of DCP 39 Ground 4: Determination that a building height plane was appropriate to the site (which the proposed building infringed) Ground 5: Determination that cl 3.3 of DCP 39 applied and that the proposal would not meet the intention of that control

29 These three grounds of appeal largely overlap and may be considered together.

30 It is necessary to refer to cl 3.3 of DCP 39 which is headed "Architectural Characteristics". Under sub-heading "Height" the following appears: Eastwood contains a "village" character that is, in part, provided by the scale of buildings to the streetscape. Strategy To ensure that the existing human scale element of the streetscape is retained. 31 There then follows a building height control plane and the following statement: Except as specified above, development is to be within the envelope of the "sun altitude height plane" being the plane projected at an angle of 26º over a building site measured from the property boundary on the opposite side of the road. 32 As I understand it, the proposed building would infringe the "sun altitude height plane" described above when measured from the property boundary on the opposite site of Trelawney Street, to which the site also has a frontage.

33 Clause 3.3 goes on to state, however, that the council may approve a building which projects above the building height plane where: a) the non compliance is consistent with the aims, principles and strategies of the Plan; b) in the circumstances of the site the strict application of the provision is unnecessary or unreasonable, such as corner allotments or the presence of an intervening structure; c) it can be demonstrated that the intention of the control is largely met; or d) variation of the control results in an improved design solution for the site taking into consideration the nature of the adjoining development. 34 The applicant's submissions in relation to cl 3.3, as I understand it, are: (i) an issue before the commissioner was whether the controls under cl 3.3 applied to the subject land at all; (ii) a fair reading of the clause, including the "exception" to the clause is that it has no application; (ii) the court appointed expert, Mr Sanger, was of the opinion that it did not apply, whereas Ms Morrish was of the opinion that it did; (iv) the commissioner did not resolve the issue.

35 A reading of the commissioner's decision shows, however, that he resolved the question by applying and interpreting the height control in the manner adopted by Ms Morrish. The commissioner's essential findings are set out in the following paragraphs: [36] First, the site is in an urban village zone and the intention of DCP 39 is that new development should have an urban village character. Development should be of human scale in the streetscape, being generally two to three stories in height. Taller building elements set back from street are permissible but they should not dominate. [37] Second, Trelawney Street is to be developed for the enjoyment and utility of pedestrians with a high level of aesthetic amenity at street level. [38] Third, Trelawney Street is a retail/pedestrian priority street and at its intersection with Rutledge Street forms a gateway to the Eastwood Town Centre. The street corner portion of site is therefore a gateway site for the purposes of DCP 39 and notwithstanding the first objective above should be developed accordingly. More particularly the corner element of the building should address both streets and be stepped up especially in relation to structures at the street frontages. [39] In my view when these objectives including the various relevant provisions of DCP 39 are considered and applied to the site they indicate a form of development unlike the proposal for which consent is sought. Whilst I agree with Dr Lamb that strict enforcement of the development controls in DCP 39 would, in relation to this site, result in an unreasonable restriction on development, this does not mean that the controls should be disregarded. Although strict compliance is not necessary they still have an important function. [40] I am satisfied that a three-storey building fronting Trelawney Street would be acceptable but when the building height plane is applied to this height and notwithstanding the 3 m set back, a significant proportion of the building above this plane will be apparent. Whilst I do not accept that for this site there can be no development above the building height plane I find the 3 m set back for the four levels of building above the building height plane to be inadequate. The bulk of the building as would present to Trelawney St. and indeed to Rowe Street would be excessive and inconsistent with the urban village, streetscape and human scale objective. 36 On any reading of cl 3.3 of DCP 39, it is clear that the intention is that the controls as described herein are intended to apply to all development in the Eastwood Town Centre, unless the consent authority was prepared to exercise its discretion to approve a building which projects above the height plane in the circumstances detailed under the "exception".

37 It is clear from these paragraphs of the commissioner's findings quoted above, that the commissioner was of the view that the "exception" to cl 3.3 of DCP 39 should not be applied: see, in particular, par [40] of his decision. Since the commissioner was not prepared to exercise the discretionary power to apply the exception, it follows that the control must apply. In these circumstances it is not correct to say that the commissioner did not resolve the issue. The control under cl 3.3 of DCP 39 was to be applied unless the commissioner was prepared to exercise the discretion of the consent authority to vary it, and for the reasons which the commissioner has given he was not prepared to exercise that discretion.

38 To put it bluntly, it is apparent that the commissioner was of the opinion that the proposed building is simply too big. This appears from the following statement in par [40] of the commissioner's decision: The bulk of the building as would present to Trelawney St. and indeed to Rowe Street would be excessive and inconsistent with the urban village, streetscape and human scale objective. 39 The conclusions of the commissioner set out in par [25] above effectively resolved the differences between Mr Sanger and Ms Morrish. They are accompanied by reasons. Those reasons include findings of fact. For example, the commissioner's finding that "Trelawney Street is a retail/pedestrian priority street" - a finding which is challenged by the applicant - is a finding of fact that is not open to be questioned in an appeal limited to a question of law.

Ground 6: Failure to determine the case on the issues as particularised 40 The applicant states that the sole issue in the case was issue 1 (noted in par [8] above), and in going beyond that issue the commissioner erred in law. 41 I have set out (in par [9] above), Mr Clay's restatement of that issue in opening the case for the council. The applicant's counsel did not demur from Mr Clay's restatement of the issue. The commissioner properly considered the matters identified by Mr Clay. Moreover, the commissioner was also required to consider the issues raised by objectors, which clearly went beyond the issue as framed in par [1] of the statement of issues, including, in particular, the issue of height. I therefore reject this ground of appeal.

Ground 7: Failure to give reasons 42 The applicant submits that there was a clear contradiction between the evidence of Mr Sanger and Ms Morrish as to whether cl 3.3 of DCP applied and there was a failure by the commissioner to properly consider, resolve rationally and give reasons for the resolution of these differences. Reliance was placed on Wiki v Atlantis Relocations (NSW) Pty Ltd (2004) 60 NSWLR 127. In that case it was held by Ipp JA (Bryson JA and Stein AJA concurring) that where the issue in dispute involves differences between expert witnesses with reasons and analysis advanced on either side, and where the experts are properly qualified and none has been found to be misleading, unduly partisan or otherwise unreliable, then the parties are entitled to have the judge enter into the issue canvassed before the court and to an explanation by the judge as to why one case is preferred over the other (at 135-138).

43 The principles explained in Wiki must be approached with caution, however, in a case such as the present. Wiki was an appeal in a case involving a claim for damages for personal injury. Each side called medical experts. The court held that the judge had to give a rational explanation as to why he preferred one witness rather than the other. By contrast, the tribunal in the present case was constituted by a commissioner who is himself an expert and who is entitled (and is expected) to bring his own expertise and experience to the question in issue. That is why he was appointed as a commissioner. In the present case the commissioner's task was not so much as to decide which expert was right and which expert was wrong, but to derive what assistance he could from them in arriving at his own individual assessment.

44 As explained in Wiki (at 135-136) the function of reasons is twofold. Firstly, fairness requires that the parties, especially the losing party, should be left in no doubt as to why they have won or lost. Secondly, a requirement to give reasons concentrates the mind: if it is fulfilled the resulting decision is much more likely to be soundly based than if it is not.

45 In the present case the commissioner's reasons are essentially those that I have set out in par [35] above. It seems reasonably clear that they represent the commissioner's own views and opinions, using his own expertise and experience. They also accord with the views of Ms Morrish. They are given after having had the benefit of a view of the site with representatives of the parties and having had the benefit of the views and opinions of all the expert witnesses, whose evidence he summarised. The commissioner's findings represent rational and reasoned findings and, importantly, the losing party is left in no doubt why it has lost - to again put it bluntly, the proposed building is simply too big. The commissioner's reasons do not disclose any error of law. Orders 46 The formal orders are: (1) The appeal is dismissed. (2) The applicant must pay the respondent's costs. I hereby certify that the preceding 46 paragraphs are a true copy of the reasons for judgment herein of the Honourable Mr Justice D H Lloyd.

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