Cutelli v Wyong Shire Council & Anor

Land and Environment Court (NSW)|2007-03-15|Before: Jagot J, Mr P, Mr J

CITATION : Cutelli v Wyong Shire Council & Anor [2007] NSWLEC 137

APPLICANTS Ross Cutelli and Maria Cutelli

PARTIES : FIRST RESPONDENT Wyong Shire Council

KEY ISSUES: Judicial Review :- view impacts - failure to consider relevant matters - grant of consent not reasonably open - application dismissed

Environmental Planning and Assessment Act 1979 s 79C(1)(a)(iii), s 79C(1)(b) LEGISLATION CITED: Development Control Plan No 64 (Wyong Multiple Dwelling Residential Development Control Plan) State Environmental Planning Policy No 65

Associated Provincial Picture Houses, Limited v Wednesbury Corporation [1948] 1 KB 223; BP Australia Ltd v Campbelltown City Council (1994) 83 LGERA 274; Kindimindi Investments Pty Ltd v Lane Cove Council and Another (2006) 143 LGERA 277; CASES CITED: Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others (1986) 162 CLR 24; Tenacity Consulting Pty Ltd v Warringah Council (2004) 134 LGERA 23; The Council of the City of Parramatta v Pestell (1972) 128 CLR 305; Westfield Management Limited v Perpetual Trustee Company Limited and Anor [2006] NSWCA 245

APPLICANT Mr P McEwen SC SOLICITORS Johnston Vaughan

FIRST RESPONDENT LEGAL REPRESENTATIVES: Mr J Lazarus SOLICITORS Home Wilkinson Lowry

SECOND RESPONDENT Mr P Donnellan (solicitor) SOLICITORS PJ Donnellan & Co

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

ROSS CUTELLI & MARIA CUTELLI Applicants

NICK KALANTZIS CITY PROPERTY HOLDINGS PTY LIMITED Second Respondent

JUDGMENT Jagot J: A. Claims 1 Mr and Mrs Cutelli own the property at Richard Street, the Entrance. In late January 2006, Wyong Shire Council (the Council) gave Mr and Mrs Cutelli notice of a development application lodged with the Council by Nick Kalantzis City Property Holdings Pty Ltd (the developer). The development application proposed the erection of a residential flat building containing 12 units on land described as 87-89 Ocean Parade and 5 Richard Street, The Entrance. The development site (containing three lots) adjoined the eastern boundary of Mr and Mrs Cutelli's property. Mr and Mrs Cutelli enjoyed certain views over the development site and down Richard Street to the ocean. They objected to the development application on various grounds, including inadequate setbacks and blocking of their existing ocean views. The Council sought further information from the developer including about impacts on views, particularly from 3 Richard Street. The developer's consultant provided the requested information. A few months later, the Council's Development Assessment Panel considered a report recommending the development application be approved. The Development Assessment Panel endorsed the report and adopted its recommendation on 20 June 2006. The Council issued a notice of determination granting consent to the development application on 23 June 2006.

2 Mr and Mrs Cutelli commenced these proceedings on 20 September 2006. They contend that the consent is invalid on three grounds, which I paraphrase as follows: (1) In granting the consent, the Council failed to consider cl 5.3.3 of Development Control Plan No 64 (Wyong Multiple Dwelling Residential Development Control Plan) (the DCP), in breach of s 79C(1)(a)(iii) of the Environmental Planning and Assessment Act 1979 (the EPA Act).

(2) In granting the consent, the Council relied on material submitted by the developer's consultant, which was untrue and/or highly inaccurate with respect to the impacts on views from 3 Richard Street. Accordingly, the Council failed to consider the view impacts of the proposed development.

(3) The decision of the Council to grant the development consent was manifestly unreasonable.

3 Various plans show the location of 3 Richard Street to the west of the development site, adjoining Richard Street to the north. Ocean views to the east from 3 Richard Street were over the development site. To the northeast, the views were over the development site and down Richard Street. The plans also show the dwelling on 3 Richard Street located towards the southern end of its block, with an L shaped balcony on the eastern and part of the northern facades.

4 The Council received Mr and Mrs Cutelli's objection to the proposed development dated 3 February 2006. A person, whom I infer to be an officer of the Council, highlighted and ticked the grounds of objection, including blocking of ocean views, and noted on the letter "Directly behind site impacted by view loss + overshadowing".

5 On 24 February 2006, after the Design Review Panel under State Environmental Planning Policy No 65 (SEPP 65) had considered the application, the Council requested the developer's consultant to address: View sharing - A more detailed analysis of view sharing is required to determine the impact of the building on views from neighbouring properties, particularly 3 Richard Street.

6 Wales and Associates, Urban and Environmental Design Partners, responded on behalf of the developer on 19 April 2006. The response acknowledged that 3 Richard Street was the "key affected property" and the development "will have some affect on the views experienced from the existing first floor balcony of No. 3". The response observed that this effect would be "minimal" and should be considered in the context of the setback and orientation of the existing building on 3 Richard Street. The response included photographs. Figure 1 was described as "view from balcony fronting Richard Street". This photograph looks to the northeast showing a view of the ocean between the existing house on 5 Richard Street (to the right) and other houses and vegetation (in the centre). Figure 2 was described as "view from balcony facing side boundary". This photograph looks more directly east, over the top of the development site and the existing dwelling on 5 Richard Street, to the ocean. The same vegetation and structures are visible in both figures, albeit from a different viewing angle. The response observed that, as the balcony on 3 Richard Street was 1.8 metres wide to the north and 1.5 metres wide to the east, the main usable balcony area was to the north (that is, to Richard Street, as shown on figure 1). The response said the existing dwelling on 5 Richard Street, as could be seen from figures 1 and 2, already obscured the majority of the distant ocean views. It observed that view losses from 3 Richard Street were accentuated by the large setback of the dwelling on that property from Richard Street (8.7 metres to the edge of the balcony and 10.5 metres to the main northern wall). The response provided a photomontage (figure 3) superimposing the proposed development on figure 1 (albeit at a slightly smaller scale). It observed that the photomontage showed "some loss of the distant ocean view" as a consequence of the proposed 4.5 metre setback to Richard Street and concluded: Therefore, the existing dwelling at No 3 Richard Street will retain its primary views facing Richard Street and will incur some minor view loss from its secondary view corridor to the northeast towards the ocean.

7 The photomontage in figure 3 shows the outline of the main wall and balcony of the proposed development blocking the views to the ocean from 5 Richard Street (to the right) to a point close to the tree (in the centre).

8 On 5 June 2006, the developer's architect provided the Council with their interpretation of the setback controls in the DCP, submitting that the proposed development "greatly exceeds the minimum setbacks specified by the DCP".

9 Two officers of the Council submitted a report to the Council's Development Assessment Panel - a reporting officer and a reviewing officer. The report recorded the comments made by the Design Review Panel under SEPP 65, including that the side and rear boundary setbacks should "fully comply with the numerical requirements and objectives" of the DCP. The report commented that the proposed setbacks and separation complied with the DCP, except for a minor variation to the western boundary second floor setback (a matter not raised in these proceedings). The report included a table listing the requirements of the DCP, including requirements for setbacks, and recording the compliance or non-compliance of the proposed development with those requirements. A note below the table referred to the letter of 5 June 2006 submitted by the developer's architect to the Council regarding setbacks. Part of the same table referred to views as follows:

Views View analysis submitted. Minimise loss of views View analysis submitted. View loss discussed in detail later in the report under the heading Relevant Issues. Yes Public views and vistas retained No public views and vistas through the site. View corridor down Richard Street and over top of Surf Club maintained. Yes

10 The detailed discussion in the report included lengthy extracts from the submission by Wales and Associates of 19 April 2006. The report continued after those extracts as follows: This advice is considered reasonable and shows a real attempt to look at the current and future views from the balcony of the dwelling at No. 3 Richard Street.

An assessment of view sharing has been carried out using the four-step assessment process adopted by the Land and Environment Court (as detailed in the Tenacity vs. Warringah Shire Council court case).

The first step is the assessment of views to be affected. Water views are valued more highly than land views. Iconic views (e.g. of the Opera House, the Harbour Bridge or North Head) are valued more highly than views without icons. Whole views are valued more highly than partial views, e.g. a water view in which the interface between land and water is visible is more valuable than one in which it is obscured.

Photos provided by the applicant indicate that views of the ocean are available from No. 3 Richard Street. Views are partial (restricted by buildings and trees) and are not considered iconic (no interface between land and water and no distant icons such as an island) and the value of the views are therefore considered to be limited.

The second step is to consider from what part of the property the views are obtained. For example, the protection of views across side boundaries is more difficult than the protection of views from front and rear boundaries. In addition, whether the view is enjoyed from a standing or sitting position may also be relevant. Sitting views are more difficult to protect than standing views. The expectation to retain side views and sitting views is often unrealistic.

As seen in the photos provided by the applicant, the primary view corridor is from a standing position at the northern end of the first floor balcony. There are also limited views (blocked by an existing double storey dwelling) from the first floor narrow balcony running along the eastern side of the house.

The third step is to assess the extent of the impact. This should be done for the whole of the property, not just for the view that is affected. The impact on views from living areas is more significant than from bedrooms or service areas (though views from kitchens are highly valued because people spend so much time in them). The impact may be assessed quantitatively, but in many cases this can be meaningless. For example, it is unhelpful to say that the view loss is 20% if it includes one of the sails of the Opera House. It is usually more useful to assess the view loss qualitatively as negligible, minor, moderate, severe or devastating.

The impact of the development on the partial and obscured water views from No. 3 Richard Street is considered to be minor. The existing 2 storey dwelling to the east already blocks the view from the first floor balcony so even if the proposed development was limited to 2 storeys, views would not be retained or enhanced.

Some water views from the main view corridor (standing at the northern end of the first floor balcony) will be retained and this is considered to meet the definition of view sharing through a side boundary.

The fourth step is to assess the reasonableness of the proposal that is causing the impact. A development that complies with all planning controls would be considered more reasonable than one that breaches them. Where an impact on views arises as a result of non-compliance with one or more planning controls, even a moderate impact may be considered unreasonable. With a complying proposal, the question should be asked whether a more skilful design could provide the applicant with the same development potential and amenity and reduce the impact on the views of neighbours. If the answer to that question is no, then the view impact of a complying development would probably be considered acceptable and the view sharing reasonable."

The proposal complies with the objectives and height requirements of the 2(c) zone and also complies with Chapter 64 requirements, except for a very minor intrusion - 300mm - into the side (western) setback. This minor intrusion does not increase the height of the building or worsen the impact on views from the neighbouring property. Any development on the subject site is likely to be built to the allowable setback and therefore have the same impact as that currently proposed.

11 The last page of the report recommended that the development application be approved, subject to conditions. This page referred to four attachments, including the development plans, the draft conditions and "photos of views from No 5 Richard Street and impact on these views". I infer that this is a reference to the submission by Wales and Associates.

12 The report discloses that four officers of the Council constituted the Development Assessment Panel, each of whom signed the report (designated as ADM, ENG, HB and TP, which I infer stands for administration, engineering, health and building, and town planning).

13 The development consent issued on 23 June 2006. The Council notified Mr and Mrs Cutelli of the grant of consent on 27 June 2006 by letter stating that their comments were considered as part of the assessment process. The letter also said that views had been assessed and the loss of views was considered to be minimal.

14 Mr and Mrs Cutelli retained Ms Walls, photomontage specialist, who provided an affidavit. Ms Walls took a series of photographs from positions on the balcony and within the dwelling of 3 Richard Street and superimposed a block model of the development over some of those photographs. For example, photograph 2 was taken from the northern section of the balcony looking northeast, similar to the general orientation of figure 1 in the submission by Wales and Associates. Ms Walls' photograph, however, is much larger and clearer than figure 1. Photomontage 4 shows a block model of the development superimposed over this view (although Ms Walls acknowledged that the dark grey area, the top of which represents the penthouse terrace floor level, is 120mm too high). The photomontage shows the development blocking the ocean views available between 5 Richard Street (on the right of the photograph) and the tree in the centre of the photograph. A similar before and after comparison may be made between photograph 6 and photomontage 8 (which also incorporates the 120mm error). Other photographs show various filtered views to the water from different vantage points on the balcony, many over the top of the existing dwelling on 5 Richard Street. Photomontage 9 shows a hypothetical development set back 7.5 metres from Richard Street. None of this material was before the Council when it made its decision.

15 During cross-examination, Ms Walls accepted that figure 1 had been taken from the first floor balcony on 3 Richard Street in generally the same direction as her photograph 2. Ms Walls said the difference between the images in the two photographs could have resulted from multiple causes - such as a different camera, different focal length, and different position on the balcony. She agreed that existing buildings (including the dwelling on 5 Richard Street) and trees restricted water views from 3 Richard Street, the views were partial views, and could not be described as iconic. She agreed photomontage 9 disclosed that a building set back 7.5 metres from Richard Street would also obscure water views from this viewpoint. Ms Walls said her evidence was not that the photographs in the submission by Wales and Associates were inaccurate, but that her photographs showed something different.

16 Mr Baker, the architect for the proposed development, provided an affidavit. He was not cross-examined. In his affidavit, Mr Baker said he had taken the photographs and prepared the photomontage that appeared in the submission by Wales and Associates. He explained the process by which the photomontage was prepared, observing that the process was "highly accurate" and demonstrated the view impact on 3 Richard Street. Mr Baker considered it obvious that Ms Wall's photographs had been taken from different vantage points and, thus, could not be compared to those he had prepared.

17 Mr Ross Cutelli and Mr Ian Stewart (planner) also provided short affidavits. I do not consider their affidavits material to the resolution of the issues.

18 Section 9.5 of the DCP deals with views, including requirements to minimise view losses from adjoining and adjacent properties, and the potential need for a visual impact analysis to be submitted. Mr and Mrs Cutelli did not contend that the Council failed to consider this part of the DCP.

19 Section 5.3 of the DCP deals with building lines. Section 5.3.1 states that on corner allotments, the side street is generally taken to be the boundary with greater frontage. Section 5.3.3 provides the following requirements for low-rise residential flat buildings (applicable to the proposed development):

Aspect Minimum Setback Required "Category A" roads: 7.5 metres; "Category B" roads: 6.0 metres; Front setbacks for development up to and including 2 storeys in height. "Category C" roads: 4.5 metres.

… Front setbacks for development over 2 storeys in height 7.5 metres applies to all aspects of the development, with the exception of a portico, or structure required for a waste collection area. Side setbacks for development up to and including 2 storeys in height. 1.5 metres First Storey: 1.5 metres Side setbacks for development over 2 storeys in height. Second Storey: 1.5 metres Third Storey: 4.5 metres Fourth Storey: 4.5 metres Rear setback 4.5 metres Garages A minimum setback of 6.0 metres applies to garages where they are accessed directly from the road system, except Category A roads, where 7.5 metres applies. Corner Allotments Same as side and rear setbacks, plus comply with the sight preservation lines.

20 Mr Baker said in his affidavit that the building was setback from Richard Street by 4.1 metres at the ground floor, 4.1 metres at the first floor and 4.5 metres at the third floor. The parties agreed that the Richard Street frontage of the development site had the greatest frontage.

21 Section 79C(1)(a)(iii) of the EPA Act provides that, in determining a development application, the consent authority is to take into consideration the provisions of any development control plan of relevance to the development the subject of the development application. Accordingly, cl 5.3.3, with respect to setbacks for low-rise residential flat buildings, was a provision the Council was required to take into consideration in determining the development application.

22 The report to the Development Assessment Panel dealt in detail with the setback requirements in cl 5.3.3 of the DCP. Faced with this fact, senior counsel for Mr and Mrs Cutelli acknowledged that this claim depended on the Council having misconstrued the clause by treating the three lots within the development site in aggregate and, accordingly, accepting that the Richard Street frontage was a side (not a front) boundary. Senior counsel submitted that, as 5 Richard Street (lot A in deposited plan 403633) was a separate lot at the time the development application was made and determined, the setback requirements had to be applied to that lot, and each of the other two lots, separately. The fact that the three lots were to be consolidated as part of the proposed development was said to be immaterial. Moreover, lot A, when considered separately, was not a "corner allotment" on any view. Therefore, the Council should have considered lot A as subject to a 7.5 metre setback requirement. The Council's failure to do so involved a breach of s 79C(1)(a)(iii) of the EPA Act.

23 These submissions face insuperable difficulties. Clause 5.3.3 concerns setbacks for "low-rise residential flat buildings". Clause 1.4 of the DCP defines "low-rise residential flat buildings" as "a development comprising three or more dwellings in a building that comprises three or more storeys, but does not include a high rise residential flat building". Most of the setback requirements in the table for "low-rise residential flat buildings" in cl 5.3.3, including the applicable requirements for "front setbacks" and "side setbacks", are expressly identified as requirements "for development". The development to which the clause applies is "low-rise residential flat buildings". In this case, the "low-rise residential flat building" was to be developed on three lots. The DCP required the Council to assess the setbacks for this development. In so doing, it enabled the Council to identify the "front" and the "side" of the development. The DCP defined neither term. The Council was thus required to give those terms their ordinary meaning in the context of the proposed development. The Council identified Ocean Parade as the front and Richard Street as the side of the development. Accordingly, the Council determined that the 7.5 metre setback requirement applied to Ocean Parade and the 1.5 to 4.5 metre setback requirement applied to Richard Street. There was no need for the Council to rely on the land being a "corner allotment" to reach this conclusion.

24 The process undertaken by the Council does not disclose any misconstruction of cl 5.3.3 of the DCP. To the contrary, the Council undertook the assessment with respect to setbacks that the DCP, in terms, required. The notion that cl 5.3.3 requires or permits the Council to apply the front and side setback requirements to part of a development, or part of the land on which the development is to be located, is untenable. This ground of challenge fails.

25 Senior counsel for Mr and Ms Cutelli submitted that Ms Walls' evidence demonstrated the inaccuracy and misleading character of the view analysis Wales and Associates provided to the Council. The Council, it was submitted, relied on this information and, in consequence, failed to give proper, genuine and realistic consideration to the view impacts of the development (I infer, in breach of s 79C(1)(b) of the EPA Act, which requires the consent authority to consider the likely impacts of the development).

26 This claim also faces insuperable difficulties having regard to the facts of this case and the general limits on judicial review.

27 As noted, Mr Baker was not cross-examined about any aspect of his evidence. Mr Baker said in his affidavit that the photomontage he had prepared involved a "highly accurate simulated placement of the proposed development and demonstrates the impact of the view from the verandah" of 3 Richard Street. At its highest, therefore, Ms Walls' evidence involved photographic and photomontage information additional to that provided to the Council by Wales and Associates. Ms Walls' evidence did not support a finding that the photographs taken by Mr Baker or the photomontage he produced were inaccurate or misleading in any way; they were merely different from the images she had produced (as Ms Walls acknowledged).

28 The most comparable images of Mr Baker and Ms Walls are figure 1 and photograph 2, and the associated photomontages (figure 3 and photomontage 4). Leaving aside the obvious differences in size, colour quality and clarity, both photographs show a view generally to the northeast from the balcony on 3 Richard Street. Both disclose a view of the ocean between 5 Richard Street and the tree in the centre of the images. Both photomontages show the proposed development would remove almost the whole of this ocean view. The main difference of substance between the two photomontages is that Mr Baker's shows the proposed balcony, the design of which retains a small part of the view filtered through the vegetation, whereas Ms Walls' photomontage does not. But it is apparent from both photomontages that the vast majority of this ocean view from this vantage point would be lost. The two photomontages, if anything, exhibit a consistent representation of the extent of view loss from the balcony to the northeast.

29 Ms Walls' evidence included additional photographs from other locations on the balcony and within the dwelling on 3 Richard Street. What is the potential significance of the fact that 3 Richard Street enjoyed other viewing vantage points not included in the submission by Wales and Associates? It cannot be the mere fact that viewing vantage points other than those submitted by Wales and Associates to the Council were available. The site plan approved by the Council showed 3 Richard Street with its L shaped balcony on the north and eastern sides. It would have been obvious from the site plan that 3 Richard Street looked directly over part of the development site towards the ocean. It was equally obvious from the plans and the report to the Development Assessment Panel that 5 Richard Street had an existing two storey dwelling on it, with a fairly limited footprint, whereas the proposed development was a 3 storey residential flat building with a far greater footprint. In other words, from this limited information alone it would have been apparent that 3 Richard Street enjoyed other partial water views from various vantage points across the top of 5 Richard Street, which the 3 storey residential flat building would block. It also cannot be that Mr Baker or Wales and Associates were under some duty to provide the Council with photographs and photomontages from each and every possible viewing point available. The EPA Act does not impose any such duty. The Council's request to the developer for further information about view impacts could not have that effect. Nor was the Council itself subject to a duty to prepare photomontages from all possible viewing points on 3 Richard Street. Section 79C(1) of the EPA Act specified the extent of the Council's duty. For these reasons, I am satisfied that the availability of other viewing vantage points (and Ms Walls' evidence about them) has no legal consequence with respect to the validity of the consent.

30 What is the relevance of the text of the submission by Wales and Associates about view impacts and the Council's alleged adoption of Mr Wales' conclusions? Mr and Mrs Cutelli, no doubt, highly value their water views, perhaps all the more so because they are obstructed in part. To see Mr Wales describe their view loss as "minimal" and "minor", when the photomontage submitted to the Council (figure 3) shows the majority of the ocean view to the northeast being blocked, I infer, left Mr and Mrs Cutelli with a genuinely held sense of grievance. Mr Wales reached this conclusion having regard to his opinion that the view to the north (to Richard Street) was the primary view, given the orientation of the dwelling and the width of the two parts of the balcony. Mr Wales also gave weight to the large setback of 3 Richard Street to the west of its lot, which had the effect of accentuating any view loss. Whether I consider those opinions sound or not is beside the point. Mr Wales was not responsible for determining the development application. His opinions are not the subject of review in these proceedings. The submission that his view loss analysis involved a "species of equitable fraud" (a type of fraud, I note, which involves no necessary conscious wrongdoing) is unsustainable on the facts and immaterial. Mr Wales' opinions can be relevant to these proceedings only insofar as they evidence something about the Council's conduct or state of mind.

31 Contrary to the submissions on behalf of Mr and Mrs Cutelli, the report to the Development Assessment Panel did not simply adopt Mr Wales' opinions. It described Mr Wales' submission as "reasonable", showing a "real attempt" to look at current and future views from the balcony on 3 Richard Street. The reporting officer carried out his own view assessment, having regard to the observations in Tenacity Consulting Pty Ltd v Warringah Council (2004) 134 LGERA 23. The officer observed that the photographs submitted indicated the availability of views to the ocean from 3 Richard Street. The officer described those views as partial (which Ms Walls accepted). The officer did not consider those views iconic (and nor did Ms Walls). He characterised the value of the views as limited. Having done so, he classified the views as primary (the northern end of the balcony) and secondary (the eastern part of the balcony). A fair reading of the report discloses the officer's acceptance of views to the ocean from both parts of the balcony, albeit with the existing dwelling on 5 Richard Street blocking much of the view to the east (and Ms Walls accepted the existing dwelling had some impacts on the views). The officer noted that, after the proposed development, some views would be retained from a standing position at the northern end of the balcony (as is apparent from Mr Baker's photomontage). The officer assessed the view loss as minor. He considered the development satisfied the requirements for view sharing (established by section 9.5 of the DCP). The Development Assessment Panel, which had the benefit of the submission from Wales and Associates and the development plans as attachments to the report, endorsed that conclusion and adopted its recommendation.

32 The information placed before the Development Assessment Panel thus disclosed that the development would block views to the ocean from 3 Richard Street, other than from a standing position at the northern end of the balcony. Once this is recognised, it is apparent that the claim of invalidity relates to the Council officer's assessment of the value of the existing views as limited and the impact of the development on those views as minor.

33 Section 79C(1)(b) required the Council, in determining the development application, to take into consideration the impacts of the development. The Council was thus bound to consider the view impacts of the development. Section 79C(1)(b) imposed this obligation on the Council as consent authority. The Council officer described the existing views to the east as "limited" due to the effect of the dwelling on 5 Richard Street. He described all the existing views (both east and northeast) as of "limited value" (due to the views being partial and the orientation and location of the dwelling on 3 Richard Street). He described the impact of the development blocking those views other than from a standing position at the northern end of the balcony as "minor". It was a matter for the Council alone to make the findings of fact and to draw inferences from those facts about the view impacts, provided in so doing it discharged its obligation to consider those impacts. Mr and Mrs Cutelli's claim that the Council did not give "proper, genuine and realistic" consideration to the view impacts, I infer, arose from their strong disagreement with the Council's characterisation of the value of their existing views and the degree of impact of the development on those views. Those were matters for evaluation by the Council. This claim discloses the risk of the "slide into impermissible merit review" against which the Court of Appeal cautioned in Kindimindi Investments Pty Ltd v Lane Cove Council and Another (2006) 143 LGERA 277 at [79].

34 It is not relevant whether I agree or disagree with the Council's assessment, because it is "not the function of the court to substitute its own decision for that of the administrator…Its role is to set limits on the exercise of that discretion, and a decision made within those boundaries cannot be impugned" (Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others (1986) 162 CLR 24 at 40-41). The Council considered the view impacts of the development. To review the Council's characterisation of the values of the existing views or impact of the proposed development on those views would be impermissible.

35 The claim that the Council's decision to grant development consent was manifestly unreasonable also cannot be sustained. As Tobias JA observed in Westfield Management Limited v Perpetual Trustee Company Limited and Anor [2006] NSWCA 245 at [71]: It must always be remembered that the test for Wednesbury unreasonableness is stringent: Weal v Bathurst City Council (2000) 111 LGERA 181 at 188 [27] per Mason P. To qualify, the imposition of condition 56 by the Council must have been "so devoid of plausible justification that no reasonable person could have taken that course ". In Murrumbidgee Groundwater Preservation Assn Inc v Minister for Natural Resources (2005) 138 LGERA 11 at 41 [129] Spigelman CJ, with whom Beazley JA and myself agreed, considered that the most appropriate formulation was whether the decision is illogical, irrational or lacking a basis in findings or inferences of fact supported on logical grounds.

36 None of the evidence leads me to conclude that the Council's decision to grant the development consent crossed, or in any way approached, the stringent Wednesbury threshold (Associated Provincial Picture Houses, Limited v Wednesbury Corporation [1948] 1 KB 223). Again, whether I consider the assessment sound or not is beside the point as there is a "world of difference between justifiable opinion and sound opinion" (The Council of the City of Parramatta v Pestell (1972) 128 CLR 305 at 323). It was reasonably open to the Council to characterise the value of the existing views as limited, having regard to the extent of the impacts from existing development on those views, the orientation and location of the dwelling on 3 Richard Street and the fact that 3 Richard Street was located directly behind (to the west of) the development site, when the views to the ocean were to the east and northeast, largely over the development site (much as an officer had noted on Mr and Mrs Cutelli's letter of objection). In this context, it was reasonably open to the Council to characterise the impact on views as minor. In any event, it would be wrong to assume that the Council's interim findings of fact were the subject of judicial review. The decision to grant development consent is the subject of challenge. The Council, as the report to the Development Assessment Panel discloses, complied with its obligation "in the exercise of discretionary powers, to take into consideration the relevant considerations, to weigh them one against the other, and to determine what, in the light of those considerations, should be done" (BP Australia Ltd v Campbelltown City Council (1994) 83 LGERA 274 at 279. The Council's determination to grant development consent, subject to conditions, was reasonably open in all the circumstances.

37 For these reasons, Mr and Mrs Cutelli's challenge to the validity of the development consent must be dismissed. Costs may be argued.

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.

(2006) 143 LGERA 277

(2000) 111 LGERA 181

At a glance

Court

Decision date

Before

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Judgment (66 paragraphs)

Parties

Cases Cited (8)

Cited By (2)