Storeys
33 The following passage appears in par [151] of the Commissioner's decision:
· In regard to the number of storeys it seems to the Court that the only location that a third level can be discerned is on the western elevation in the vicinity of the foyer entrance doors. The entry itself is recessed into the building approximately 6 m from the external wall line, and adjacent a high masonry boundary wall on the driveway. Admittedly directly above that is the point of unit 3, which slightly exceeds the 8 m height limit. However the exceedance would not be perceptible to the ordinary observer and the foyer entry could be seen from very few locations due to the high wall on the west side of the driveway. On the eastern elevation the basement mechanical room is underground and the height of the wall above ground level is about 2 m below the height limit. In this case the objectives of the E P&A Act 1979 and the purposes of the storey control to limit building bulk and visual impact are not offended by the non-compliance. It would be unreasonable and unnecessary to apply the statutory standard strictly.
34 In relation to the objection under SEPP No. 1 involving the proposed number of storeys Ms Duggan submits that the Commissioner has fallen into the same error as with the breach of the height control, discussed above.
35 I have noted that the Commissioner's conclusions include a relatively extensive discussion and assessment of the impact of the proposed building's height and number of storeys (par [12] and [28] above). This discussion precedes to what is set out in par [33] above. Again, these considerations must be seen as part of the context of the Commissioner's consideration of the objection to the control governing the number of storeys. This includes the Commissioner's observations, inter alia, that the roof creates less visual height than other buildings in the area, that the building follows the topography of the site by the stepping of the building, that "the proposal would blend in to an acceptable extent", and that the proposal will "merge to an acceptable extent with the surrounding large houses". (As noted above in par [28], those conclusions are equally applicable to the Commissioner's consideration of the height control and form part of the context of that consideration also.) To those conclusions must be added those which are set out in par [33] above.
36 The Commissioner has thus considered the underlying object or purpose of the development standard and the objectives of the EP&A Act. He found (it would seem from the reasons earlier given) that they are not offended by the non-compliance, and concludes by finding that it would be unreasonable and unnecessary to apply the standard strictly. As with the consideration of the height control, and avoiding a reading of the Commissioner's reasons in an overly critical or pernickety way, the reasons satisfy the requirements for reasons described in Soulemezis, Athens and Beale. Although the reasons may be criticized as being perhaps inelegant and cursory, there is no error of law.
Frontage
37 The following passage appears, also in par [151] of the Commissioner's decision:
· In regard to the frontage of the allotment, the Court was taken to the Interpretation Act 1987 s. 34 and to test cases: Asset Based Securities Pty Ltd Vs Hornsby 2001 NSW LEC 276 Talbot J paragraphs 5 and 29, also, MoDog Pty Ltd Vs Baulkham Hills 2000 NSW LEC 180 Pearlman CJ. The purpose of requiring a 15 m minimum street frontage in SEPP 5 is not stated. In exhibit DD the applicant had a copy of the then Department of Urban Affairs and Planning guide to SEPP 5 indicating the principal purpose of setting the frontage standard was to avoid "Gunbarrel" developments. The Court has concluded that the underlying purpose of the frontage requirement was to avoid Gunbarrel developments and this proposal is not in that category.
In view of the main body of the site having dimensions of about 35m by 70 m, there is ample space for the development and application of the street frontage standard of 15m is neither reasonable nor necessary. The objects of the EP&AA [Environmental Planning and Assessment Act] and the applicable objectives of the Zone 2(E1) under SEPP1, being met.
38 Ms Duggan again submits that the Commissioner has fallen into the same error in his consideration of the frontage control as with the height and storeys controls, and for the same reasons. I do not agree, for the same reasons that apply to the consideration of the height and storeys controls. In particular, the Commissioner had regard to the underlying object or purpose of the development standard, namely, to avoid "Gunbarrel" developments; the Commissioner found that the proposed development is not in that category; and the Commissioner expressly referred to the objects of the EP&A Act and the relevant zone.
39 Ms Duggan further submits, however, that the Commissioner impermissibly took into account two irrelevant considerations, namely, the explanatory notes or guide to SEPP No. 5 (from which the Commissioner derived the principal purpose of the frontage control) and the objectives of the relevant zone. As to the former, Ms Duggan relies upon s 34(2)(e) of the Interpretation Act 1987, which allows the use of extrinsic material in the interpretation of acts and statutory rules. It is submitted that since an environmental planning instrument is neither an act nor statutory rule then the Commissioner, in considering the explanatory note or guide to SEPP No. 5, took into account an irrelevant consideration.
40 I am unable to agree with the submission. As was pointed out by Mr M L Wright, appearing for the applicant, the Court is not bound by the rules of evidence and may inform itself on any matter in such manner as it thinks appropriate and as the proper consideration of the matters before the Court permits (s 38(2) of the Land and Environment Court Act). This is another enabling provision, apart from s 34 of the Interpretation Act, which enables the Commissioner to do precisely what he did. Neither do I regard the objectives of the zone as necessarily irrelevant: a consideration of the objectives of the EP&A Act include "the promotion and co-ordination of the orderly and economic use and development of land", which in turn can include in an appropriate case a consideration of the objectives of the relevant zone.
41 Ms Duggan also submits that the Commissioner failed to take into account the fact that the driveway was a shared driveway "with all the consequential difficulties he observed in accessing that driveway". As I understand it, the access width for the subject property is 3.05 metres, but the property also has the benefit of a right-of-way over the adjoining property three metres wide, giving a total width for access purposes of 6.05 metres. The difficulties to which Ms Duggan refers were said to be identified in the evidence of Ms M D Laidlaw, a consultant town planner. Evidence to the contrary, however, was given by Mr P G Friedmann, the applicant's consulting surveyor. It seems reasonably clear, as submitted by Mr Wright, that the Commissioner accepted the evidence of Mr Friedmann. In any event, it seems to me that this issue raises a question of fact rather than a question of law.
Ground 2: cl 13A(c) of SEPP No. 5
42 Clause 13A of SEPP No. 5 relevantly states:
13A Development standards - access and useability
(1) General A consent authority must not consent to a development application made pursuant to this Part unless it complies with the standards specified in this clause.
(2) Siting The standards are:
….
(c) common areas : access must be provided so that a person using a wheelchair can use common areas and common facilities associated with the development, and
43 It seems to be common ground that this provision is a development standard. The definition of "development standards" (s 4 of the EP&A Act) includes: …"(m) the provision of services, facilities and amenities demanded by development". The matters in cl 13A(2)(c) are the provision of facilities and amenities demanded by the development. Moreover, the heading to cl 13A implies that the matters to which it refers are development standards. Section 35 of the Interpretation Act applies to an act or an instrument. An instrument is an instrument made under an act (s 3). SEPP No. 5 is an instrument made under the EP&A Act. The heading to a provision of an act or instrument is taken to be part of the Act or instrument (s 35(3) of the Interpretation Act). In this case the words "Development standards - access and useability" in the heading to cl 13A may be taken to indicate that sub-cl (2)(c), in particular, is a development standard.
44 In his consideration of this sub-clause the Commissioner said that this sub-clause is associated with cl 25(f)(iii). Clause 25 states:
25 Design of residential development
Consent must not be granted for development to which this Part applies unless the consent authority is satisfied that the proposed development demonstrates that adequate regard has been given to the following principles:
….
f) Accessibility: The proposed development should, where appropriate:
…
(iii) where feasible, involve site layout and design that enables people with a disability to access, on one continuous accessible path of travel, the street frontage, car parking, and all buildings, facilities and open spaces within the site.
…
45 The Commissioner said that the two provisions appear to be about the same thing: that cl 13A(2)(c) does not specify that all common areas must have wheelchair access; and that the objection under SEPP No. 1 was not necessary in the present case (even though wheelchair access was not available to all common areas). The Commissioner nevertheless went on to say that if this conclusion is found to be incorrect then an objection must be considered, which he then proceeded to consider.
46 A short reference to the facts is necessary. I understand that the site of the proposed development is steeply sloping. Access to the garden and landscaped area on the low side of the building is achieved by a combined stairway and wheelchair lift and by a structure similar to a jetty elevated on piers to serve as an observation deck over the landscaped area and communal open space. As I understand it, physical access by wheelchair cannot be provided to the whole of the landscaped area and communal open space. Neither does it seem to me from the plans that physical pedestrian access can be provided to the whole of the landscaped area. Some parts of the landscaped common area are not designed to be physically accessible, such landscaping being provided as a visual amenity. In particular, wheelchair access cannot be provided down the somewhat steep incline to the Georges River to which the property has a frontage.
47 Ms Duggan submits, however, that cl 13A(2)(c) requires that every part of the landscaped common area must be accessible. I do not agree. The sub-clause does not state that all common areas and all common facilities must be provided with wheelchair access. Moreover, such provisions must be read in a common sense and practical way. Ms Duggan's submission, if correct, could lead to absurd consequences: for example, it would mean that landscaping by way of visual amenity, such as rockeries or ornamental ponds or the like could not be done because such areas, self-evidently, could not be accessed at all.
48 Ms Duggan further submits that the Commissioner erred insofar as he sought to read down cl 13A(2)(c) by reference to cl 25(f)(iii): the latter does not deal with the same subject matter as the former. According to the submission, cl 25 of SEPP No. 5 deals with the issue of one continuous accessible path of travel, being a design consideration, rather than the ability of a wheelchair-bound person to use the facilities, to which cl 13A(2)(c) is directed.
49 Again I cannot agree with the submission. Clause 25(f)(iii) is about access to "all buildings, facilities and open spaces within the site". These are the same kinds of things to which cl 13A(2)(c) refers, namely "common areas and common facilities associated with the development". The various clauses and sub-clauses of SEPP No. 5 cannot be read in isolation - they must be read in the context of the whole instrument, the various provisions being complementary. There was no error on the part of the Commissioner in obtaining guidance as to the effect of cl 13A(2)(c) from a comparison with an equivalent provision elsewhere in the instrument. Ms Duggan makes the bare submission that this is an approach to statutory interpretation which is not permitted by law. No authority is cited in support of that proposition.
50 The Commissioner made the following finding of fact: "[t]he access to the lower garden area via the chair lift and jetty way above the lower garden does constitute "access" for the proposes of SEPP No. 5, and Mr Relf, an expert and wheelchair bound person himself, found that access to be quite acceptable" (par [151). That is a finding of fact with which this Court, on an appeal limited to a question of law, cannot interfere.
51 As noted above, the Commissioner also formed the view that the proposed development complies with cl 13A(2)(c) notwithstanding the inability to provide access to the waterfront. Again, this is a finding which I do not disturb. The Commissioner went on nevertheless to consider the objection to the clause under SEPP No. 1 in case his finding was incorrect. The Commissioner said:
If this is found to be incorrect, and a SEPP 1 objection must be considered in regard to the waterfront access, the opinion has been formed that the overall purpose of providing housing suitable for the aged, frail and/or disable has been achieved in the circumstances of this case to a sufficiently high level that the requirement to provide access to the waterfront for wheelchairs is neither reasonable nor necessary.
52 Ms Duggan submits that the Commissioner erred in considering the objection under SEPP No. 1 only in relation to the access to the waterfront facilities rather than to the whole of the common area; the Commissioner asked himself an impermissible question, namely whether or not the development provided housing to "a sufficiently high level"; and the Commissioner failed to consider whether a complying development would be unreasonable or unnecessary in the circumstances of the case.
53 In my opinion the Commissioner had not committed any legal error. Again avoiding a reading of the Commissioner's reasons in an overly critical or pernickety way, it seems that he had previously identified the overall objectives of the standard, noted that the standard does not state that all common areas must be accessible, noted the physical impossibility of providing wheelchair access to the waterfront, noted that both parties agreed that the amenity of the site is high and a very desirable place of residence, and (it might be implied from these circumstances) found that the requirement to provide wheelchair access to the waterfront is neither reasonable nor necessary. In particular, Ms Duggan's emphasis upon the fourth requirement in Winten is rejected: it was not an error in law to state the fourth proposition in the converse way, provided it was answered.
Ground 3: Failure to determine the adequacy and/or appropriateness of the footpath access along Tara Street
54 Clause 25(f)(i) of SEPP No. 5 states:
(f) Accessibility: The proposed development should, where appropriate:
(i) have convenient, obvious and safe pedestrian and bicycle links from the site that provide access to public transport services and local facilities, and
….
55 As I understand it, the issue of footpath access along Tara Street was not raised in the Statement of Issues relied upon by the council. The issue did not arise until the Commissioner took a view of the site. Ms Duggan submits that the only consideration of the issue by the Commissioner appears at par [169] of his decision in which he refers to the imposition of an appropriate condition. It is further submitted that the Commissioner had an obligation to make findings in relation to matters in dispute between the parties, including the council's underlying opposition to the proposed means of access. It is submitted that the Commissioner had an obligation to give reasons for any such findings; and in failing to make such findings and give reasons therefor he committed an error of law in both respects. (Reference was made to Martin & Spork, City Plan Services and Westport Marina Development.)
56 Contrary to Ms Duggan's submission, the Commissioner's consideration on this issue appears elsewhere in the decision, apart from his discussion of the appropriate condition. At par [103] of his decision the Commissioner states:
During the view it became obvious that there were greater difficulties in constructing footpath along Tara Street uphill to Birdwood Street bus stop. The applicant was permitted to obtain survey information and give to the respondent in order to assess the extent of the difficulties. Written submissions were permitted. The result was that whilst a zigzag ramp was needed on the footpath reserve at the same intersection it could be constructed to appropriate standards if required.
57 Earlier, the Commissioner had stated (at par [99]):
The return journey would use another bus stop at the corner of Tara Street and Birdwood Street about 190 m away. To get there it was necessary to cross the road at the intersection of Venetia and Tara Street. This was just at the point of Venetia St turning downhill. The cross fall was unacceptable and would lead wheelchairs to roll down the hill unless the road pavement was altered. Once on the footpath on the north-west corner of the intersection, the cross fall there was also unacceptable and would necessitate a zigzag ramp being constructed in the footpath as well as constructing the footpath itself. Buses going to Hurstville and Southgate shopping centres used these stops.
58 The penultimate sentence of par [99] and the concluding sentence of par [103] show that the Commissioner had found that the issue could be resolved by a zigzag ramp on the footpath. At paragraph [169] the Commissioner discusses the details of the proposed zigzag ramp and himself reformulates a condition which is then imposed. This shows that he determined that that issue could be resolved by the imposition of such a condition. This determination was made after receiving survey evidence and after having himself assessed the footpath on the view.
59 I have previously referred to the authorities on the duty to give reasons, which have been followed and applied in the cases to which Ms Duggan has referred. It must be re-emphasised that the Commissioner's reasons should not be examined in an overly critical or pernickety way (North Sydney Council v Ligon 302 Pty Ltd at 442). It must also be re-emphasised that the decision should not be examined as if it was written by a lawyer (Brimbella at 368). The Commissioner's reasons cited above show that this issue could be resolved by way of requiring a zigzag ramp and that he decided to impose an appropriately detailed condition to that effect. No error of law has been committed.
Ground 4: The exemption from SEPP No.5
60 By New South Wales Government Gazette No. 144 dated 13 September 2003 SEPP No. 5 was amended to exempt the Sutherland Shire area from the application of the Policy. The operative provision is a new cl 28 inserted into SEPP No. 5:
28 Development in Sutherland
(1) An application to carry out development allowed by Part 2, if the development is to be carried out on land within the Sutherland Shire area, may be made only:
(a) by or on behalf of:
(i) the Director-General of the Department of Housing, or
(ii) a local government or community housing provider, or
(b) in relation to land in Alexander Avenue, Taren Point, being Lot 2, DP 1026203, or
(c) in relation to land within Zone No 5 (a).
(2) Despite clause 26, this clause extends to a development application, made but not finally determined before the commencement of this clause, but nothing in this clause prevents the granting of development consent to:
(a) a development application made on or before 6 May 2002 (being the date on which Sutherland Shire Council resolved to restrict the application of this Policy in its area), or
(b) a development application made before or after the commencement of this clause that relates to development for which a development consent is granted as referred to in section 80 (4) of the Act.
61 The development application the subject of these proceedings was made on 28 December 2001. Accordingly, the exemption of the Sutherland Shire area from the general operation of SEPP No. 5 did not operate to prevent the granting of development consent to the subject development application under SEPP No. 5.
62 The Commissioner gave consideration to this at par [35] of his decision:
The Court was also advised that Sutherland Shire had recently obtained an exemption from SEPP 5 from the Minister for Planning and Environment. There was however a savings clause which preserved this application as a permissible use and to be dealt with under SEPP 5.
63 Ms Duggan submits that the Commissioner failed to take into consideration the general exemption of the Sutherland Shire Area from the operation of SEPP No. 5 under cl 28. According to the submission, s 79C of the EP&A Act requires the Court to have regard to the provisions of a relevant environmental planning instrument. At the date of determination of the development application by the Commissioner the relevant environmental planning instrument, namely SEPP No. 5, prohibited the proposed development; the fact of the saving provision did not operate as a presumption of approval; and the Commissioner was required to have regard to the exemption of the Sutherland Shire area as a relevant consideration. Ms Duggan relies upon Blackmore Design Group Pty Ltd v North Sydney Council (2001) 118 LGERA 290 in support of the submission that the exemption of the Sutherland Shire area from the general operation of SEPP No. 5 had to be considered. The failure of the Commissioner to consider it and his failure to give reasons for not doing so amounted, in Ms Duggan's submission, to an error of law.
64 In my opinion, however, Blackmore does not assist the council. In that case the proposed development was prohibited, but there was a savings clause in the North Sydney Local Environmental Plan 2001, cl 5(3) which stated:
5(3) Saving and transitional provision
Where a development application has been lodged but not finally determined before the commencement of this plan, the environmental planning instruments repealed or amended by this plan shall apply as if this plan had been exhibited but not commenced.
65 There is no equivalent provision to that clause in the present case. The absence of such a provision and the different wording of cl 28(2)(a) are sufficient to distinguish Blackmore from the present case. Ms Duggan relies, in particular, upon par [29] of the Blackmore judgment (at 298):
It seems to me that in applying the savings clause, cl 5(3), to the present case, one cannot ignore the fact that the 2001 LEP has been made. In applying the words of the clause that " the environmental planning instruments repealed or amended by this plan shall apply as if this plan had been exhibited but had not commenced" , it is necessary in the light of that circumstance to assume that the making of the notionally draft plan was certain and imminent. In Architects Haywood Bakker Pty Ltd v North Sydney Council [[2000] NSWLEC 138], Pearlman J said that the savings provision does not require a different approach. I thus reject the submissions of the applicant that this approach is not consistent with the purpose of cl 5(3).
66 This passage, however, makes clear that the decision in that case was founded upon the express words of the particular savings clause: "the environmental planning instrument repealed or amended by this plan shall apply as if this plan had been exhibited but not commenced". Clause 28(2) of SEPP No. 5 contains no equivalent to cl 5(3), as was determinative in Blackmore.
67 It is necessary, therefore, for the Court to construe the effect of cl 28(2), even though Mr Wright appeared to accept the applicability of Blackmore. In cases of statutory interpretation the courts are not bound by counsel's argument. This is consistent with the assertion of McGarvie J in Accident Towing & Advisory Committee v Combined Motor Industries Pty Ltd [1987] VR 529 at 547. McGarvie J cited Lord Wilbeforce in Saif Ali v Sydney Mutual & Co (A Firm) [1980] AC 198 at 212: "Judges are more than mere selectors between rival views - they are entitled to and do think for themselves". It follows that although counsel may not have supported a particular interpretation of legislation, that does not, indeed must not, prevent a court from adopting that interpretation if it considers it to be correct. (Pearce and Geddes: Statutory Interpretation in Australia, 4th ed, p 5, applied by Bignold J in Director-General Department of Land And Water Conservation v Jackson And Ors [2003] NSWLEC 81.)
68 As noted above, in determining a development application made but not finally determined before the commencement of cl 28 of SEPP No. 5, as in the present case, there is no express requirement as in the Blackmore case for the development application to be considered and determined as if the general exemption of the Sutherland Shire area was a proposal that had been exhibited but not commenced.
69 The words used in cl 28(2) are "nothing in this clause prevents the granting of development consent to …". The presence of a requirement such as in cl 5(3) in Blackmore and its absence in cl 28(2) in the present case, together with the words actually used in cl 28, suggests that those words must be applied according to their tenor: that is "nothing in this clause prevents the granting of development consent to" the development application in the present case.
70 The Commissioner made no error in stating that the general prohibition in the Sutherland Shire area against development permitted by SEPP No. 5 was subject to a saving provision and that the application was a permissible use to be dealt with under SEPP No.5.
Conclusion and Orders
71 I have not found any error of law in the Commissioner's decision. It is therefore appropriate that I make the following orders:
(1) The appeal is dismissed.
(2) The appellant, Sutherland Shire Council (the respondent before the Commissioner), must pay the applicant's costs of the appeal.
I hereby certify that the preceding 71 paragraphs are a true copy of the reasons for judgment herein of the Honourable Mr Justice Lloyd.