Doyle v Hornsby Shire Council - [2018] NSWLEC 45 - NSWLEC 2017 case summary — Zoe

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Doyle v Hornsby Shire Council

[2018] NSWLEC 45

Land and Environment Court (NSW)|2017-12-05|Before: Moore J

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At a glance

Source facts

Court

Land and Environment Court (NSW)

Decision date

2017-12-05

Before

Moore J

Catchwords

(2004) 211 ALR 472
(2004) 79 ALJR 414

Source

Original judgment source is linked above.

Catchwords

(2004) 211 ALR 472(2004) 79 ALJR 414

Judgment (43 paragraphs)

[1]

Solicitors: Doyles Construction Lawyers (Applicant) Marsdens Law Group (Respondent) File Number(s): 241184 of 2017 Publication restriction: No

[2]

TABLE OF CONTENTS Introduction The merit appeal proceedings The conciliation and hearing process The appeal against the Commissioner's decision The grounds of appeal The written submissions The approach to be taken in this appeal Hearing of the appeal The evidence before the Commissioner Matters in contention in the merit appeal The basis for the Commissioner's consideration of the modification's merits The structure of the Commissioner's decision The outcomes on the contested issues The centrality of the insufficient information issue Introduction The order of considering the grounds of appeal Ground 2 Introduction Mr Kennedy Mr Clare Introduction Mr Doyle's appeal submissions concerning Mr Clare Mr Clare's curriculum vitae The general approach to admitting expert evidence in Class 1 proceedings Assessment of Mr Clare's acceptability as an expert Mr Clare as a Council employee Conclusion concerning acceptance of Mr Clare as an expert Conclusion on Ground 2 Ground 1 Introduction Mr Doyle's written submissions on Ground 1 The central remaining issue on the merits - the adequacy of the plans Introduction The requirements of the Class 1 Practice Note The Council's submissions on the adequacy of the plans Consideration The information on the plans The Commissioner's findings were ones of fact Absence of unreasonableness Conclusion on the question of insufficient information Conclusion Costs Orders

[14]

The structure of the Commissioner's decision

The primary conclusions reached by the Commissioner were set out in [40] to [43] of her decision, under the heading "Findings". In this portion of her decision, she explained why she was not satisfied that she should conclude that she had sufficient information to resolve the fourth of the contested issues in favour of the Applicant and thus approve the proposed driveway. Her findings were in the following terms: 40 After assessment, I find on the evidence of Mr Vardouniotis that a critical part of the driveway edge has not been designed in sufficient detail and therefore is not able to be assessed by a qualified engineer as required in order to vary the AS. Moreover, the earlier deferral of that same design detail at the DA stage resulted in a 40m long 3.4m high elevated "land bridge" being approved. The Council maintains that the suitability of the design in all its detail should be assessed as called up by s96 (under section 79C) at this point of time rather than the construction certificate stage. Given the topography of the site, and the evidence led by Mr Doyle that the proposed design is "at the edge of acceptability", I am not prepared to vary an AS without appropriate engineering certification to justify that course. 41 The final plans relied upon by the Applicant have been prepared by somebody who has not been named and whose qualifications are unknown. While they have been assessed by a qualified engineer, Mr Vardouniotis, his assessment is heavily qualified - only for the purposes of a concept design, only in respect of the centre lines gradients and transitions with no consideration of the critical edges on the curve. In the circumstances I cannot be satisfied on that assessment that the ultimate design will prove acceptable, after assessment under s79C, such as to warrant a variation of the AS that has been adopted by this Council in its DCP. 42 There is, as the Council submits, insufficient detail to properly assess this application. Furthermore, I accept, on the evidence before the Court, that there is no justification to support a variation of the Australian Standard. Both Mr Clare and Mr Vardouniotis, in his 27 odd years of engineering experience in respect of the design of roads, stated that neither of them had ever been required to approve of a domestic driveway with a centre line gradient of 34%, with a likely edge gradient on some portions in excess of 35%. While the evidence is that in some roads in the world a 40% gradient has been known to be approved (T 28/10/16 p90 L27), this fact provides me with no comfort as to the suitability of the proposed gradient on this domestic driveway in Hornsby. 43 It may be that a detailed plan, authored by a suitably qualified engineer with appropriate experience, may be able to make a judgement as to whether a particular gradient line design is safe and environmentally sustainable for this domestic driveway over and above the 25% maximum, but the promise of that expectation being achieved in the future on some plan which has not been detailed is not sufficient to enable me to approve of the application before the Court. While the notation to the Australian Standard does recognise that gradients to 25% maximum may not be "practicable in some particularly hilly residential locations" the fact is that there is an approved driveway which has achieved the 25% maximum. The design of that driveway may well be wanting in terms of aesthetics, a circumstance that may well justify some future variation to the 25% maximum, as being impractical for this site. However, a fully detailed plan needs to be provided, enabling a full assessment of the proposal to be made before variation of the standard can properly be considered.
The Commissioner also expressed several, what might be regarded as intermediate, conclusions throughout the earlier portions of her decision, only some of which were the subject of attack by Mr Doyle.

[15]

The outcomes on the contested issues

With respect to the first three of the contested issues earlier set out, the Commissioner's conclusions can be dealt with in comparatively short compass. The outcome she reached with respect to each of them can be summarised as follows:

The centreline slope, at a proposed maximum gradient of 34.05%, was not necessarily, of itself, a basis to refuse the application, even though Mr Vardouniotis, the engineer relied upon by Mr Doyle for the second phase of the proceedings, conceded that, in his 27 years of relevant professional experience as a consulting engineer, he had never designed a driveway which incorporated that maximum potential gradient. It can be seen from the terms of [43] that the Commissioner concluded that, with sufficient, complete information and design detail at the development application stage, such a design might be acceptable;
The evidence of the two experts (Mr Grieve, for the Applicant, and Professor Yandell, for the Council) concerning friction, and the establishment of an appropriate surface to provide sufficient grip on the proposed driveway, was that this was capable of resolution by specifying the surface treatment to be applied to the driveway. Mr Doyle, having agreed to a condition that would mandate the agreement between the experts as to the appropriate treatment, this concern of the Council did not stand as an impediment to the proposal. The Commissioner explained why this was so at [33] to [34] of her decision; and
The Council's expert witness, Mr Clare, accepted that the potential for scraping of the underside of vehicles at the top of the driveway could be resolved by minor and uncontroversial design adjustments. This did not act as a barrier to approval of the proposal, but did lead the Commissioner to note, at [29] to [30], the agreement of the experts that further plans were required to show this.

The single issue which caused the Commissioner to decide that she was not in a position to approve the driveway at the proposed maximum gradient of 34.05%, when the presumptive maximum gradient envisaged by the Council's planning controls, as earlier set out, was 25%, was her conclusion that she did not have sufficient information concerning the cross-fall of the proposed driveway, particularly at the near right-angle bend at the approximate midpoint of the driveway. On this basis she was not able to be satisfied that the proposed design was capable of being constructed so that its operation would be safe.
In reaching this conclusion, she accepted the evidence of Mr Clare as to the necessity for detailed cross-sections being available to be assessed at the development consent stage and, by necessary implication, rejected the proposition advanced by Mr Vardouniotis that those matters, to the extent that they were potentially of concern, could be resolved at the detailed design stage for a construction certificate.

[17]

Introduction

It is clear from [40] to [43] of the Commissioner's reasons, as earlier set out, that her determination that she lacked a proper evidentiary basis to approve the driveway, based on Mr Clare's evidence in particular (but also having regard to other evidence given by Mr Vardouniotis), was both a sufficient and the principal reason why the Commissioner refused the appeal.
Although she expressed a number of other conclusions (including at least one significant conclusion that was in favour of Mr Doyle's position), these fall way if her principal conclusion stands. It would not matter if she was in error on matters which do not vitiate the fundamental basis upon which she dismissed Mr Doyle's appeal.
It therefore follows, having closely read the Commissioner's reasons; the transcript of the proceedings before her and all the documentary evidence tendered, that, if there was no defect in her finding on this point (accepting, and preferring, Mr Clare's evidence and the conclusion on the inadequacy of the evidence on a crucial aspect of the safety of the design of the proposed driveway), then it is unnecessary to consider any of the other complaints which Mr Doyle makes concerning her decision. I therefore commence by considering the three fundamental matters arising concerning this aspect of the Commissioner's decision. They are: 1. As a matter of first principle, what was the appropriate basis upon which the Commissioner should assess whether or not Mr Clare should have been permitted to give expert evidence on behalf the Council; 2. Second, having regard to the proper basis for considering this question, was it properly open to the Commissioner to conclude that Mr Clare was appropriately qualified to give such expert evidence; and 3. If Mr Clare was qualified to give expert evidence, was the Commissioner's conclusion (that she should accept his evidence that additional information was required about the cross-fall of the proposed driveway before it was possible to determine, at the development consent stage, whether it was appropriate to grant approval in light of the relevant provision in the DCP) one reasonably available to her on the evidence before her.
In light of the answer to question (1) above, if the answers to questions (2) and (3) are "yes" to the way the Commissioner approached her consideration and rejection of Mr Doyle's objection to Mr Clare and the conclusion she drew about the inadequacy of the information about an aspect she accepted was essential for assessing the safety of the proposed driveway, Mr Doyle's appeal must fail.

[21]

Introduction

During the course of the hearing before the Commissioner, Mr Doyle challenged the appropriateness of permitting Mr Clare to give expert evidence on behalf of the Council. The transcript before the Commissioner records the way Mr Doyle mounted this challenge (Transcript, 28 October 2016, page 6, lines 20 to 34 and page 17, lines 34 to 45): APPLICANT: We object to the report of Mr Clare because we don't think he's an expert. We've raised that with the other side, they persist in supporting his expertise. We say he describes himself as an engineer and that causes confusion, and we say he's not an engineer and he shouldn't be described as such. COMMISSIONER: Are you suggesting he doesn't have special knowledge that could assist the Court? APPLICANT: No special knowledge, no special experience in our view in a situation where he, in his report, purports to deal with engineering aspects. The other aspect we have about it is that the instructions to him are fairly informal, and the situation is that he simply follows the contentions religiously and swears to them. And we say that's not in accordance with the expert's code, and it shouldn't be admitted. … APPLICANT: We say that what has been obtained by Mr Clare since he left school is an engineering surveying certificate. You see that in the enhanced resume we got. We've asked for copies of Mr Clare's qualifications and they've not been supplied. We say that certificate gives him no training. COMMISSIONER: That's a matter for submission, Mr Doyle. APPLICANT: It's an objection that he's not an expert. He's got no claim to be an engineer. He's an engineering surveyor. That qualification allows him to measure and set out engineering works. It doesn't allow him to comment on their design or functionality. The Court has been, in our view, misled as to his qualifications…
Mr Doyle complains, before me, as before the Commissioner, that Mr Clare, the Council employee relied upon as the Council's expert witness in the hearings, lacked the necessary technical expertise to give such evidence.

[22]

Mr Doyle's appeal submissions concerning Mr Clare

During the course of the appeal, Mr Doyle provided written, and made oral, submissions in support of the proposition that the Commissioner was in error in permitting Mr Clare to give expert evidence. His written submissions on this point were: 3.1.8 The Appellant asserts that the Commissioner was led into error by Mr Clare, raising numerous minor issues which the three engineers (qualified and experienced) called by the Applicant considered should be dealt at the construction certificate stage. Mr Clare does not hold any relevant qualification, experience or training to be an expert engineer. Further, his report was merely a summary of the Respondent's Statement of Facts and Contentions and failed to record any materials or analysis to support his view. … 3.2.4 Mr Clare does not have the requisite qualification, experience or knowledge to be accepted as an expert in this case or to outweigh the evidence of the three experienced engineers called by the Applicant. 3.2.5 A further detailed curriculum vitae of Mr Clare tendered in court along with his Report, records that he has only obtained a trade qualification by a part time engineering surveying certificate. This qualification does not allow him to comment on the design and functionality of a driveway and he does not have the expertise to analyse road use in terms of safety issues which are crucial to the dispute between the two parties.
During the course of the appeal hearing, he supplemented his written submissions on this point by submitting (Transcript, 21 February 2018, page 3, lines 30 to 38): …In respect of the unreasonableness of it, we rely also on the errors we say are in the ground 2, and if we take you to ground 2 there we say that the admissibility of Mr Clare's evidence, which is the only evidence by the council that effectively contested the suitability of the application of the - in this circumstances, was it was inadmissible because he wasn't an expert and was wrongly accepted, so plus he was the area of the expertise wasn't defined or restrained and there was no consideration given to weight in his evidence.

[24]

The general approach to admitting expert evidence in Class 1 proceedings

The relevant statutory provision dealing with procedure in Class 1 merit proceedings is to be found in s 38(1) and (2) of the Court Act. These elements of the section are in the following terms: 38 Procedure Proceedings in Class 1, 2 or 3 of the Court's jurisdiction shall be conducted with as little formality and technicality, and with as much expedition, as the requirements of this Act and of every other relevant enactment and as the proper consideration of the matters before the Court permit. In proceedings in Class 1, 2 or 3 of the Court's jurisdiction, the Court is not bound by the rules of evidence but 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.
Although the rules of evidence do not apply in Class 1 appeals as a consequence of s 38(2), the combination of s 38(1), when read together with s 38(2), means that it is appropriate, when determining whether or not opinion evidence should be admitted, that the general framework for testing questions relating to the expertise of a proposed witness should apply (see Pepper J in Hinset Pty Ltd v Lane Cove Council [2011] NSWLEC120 at [24]).
The strict statutory rule concerning the admission of opinion evidence (expert evidence) is set out in s 79(1) of the Evidence Act 1995 (the Evidence Act), a provision which reads: 79 Exception: opinions based on specialised knowledge If a person has specialised knowledge based on the person's training, study or experience, the opinion rule does not apply to evidence of an opinion of that person that is wholly or substantially based on that knowledge.
The position applicable to assessing whether or not proposed expert evidence should be admitted as such has been considered, judicially, at first instance and on appeal, on many occasions. In Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305, Heydon JA (as his Honour then was) said, relevantly, at [85]: In short, if evidence tendered as expert opinion evidence is to be admissible, it must be agreed or demonstrated that there is a field of "specialised knowledge"; there must be an identified aspect of that field in which the witness demonstrates that by reason of specified training, study or experience, the witness has become an expert; the opinion proffered must be "wholly or substantially based on the witness's expert knowledge"; so far as the opinion is based on facts "observed" by the expert, they must be identified and admissibly proved by the expert, and so far as the opinion is based on "assumed" or "accepted" facts, they must be identified and proved in some other way; it must be established that the facts on which the opinion is based form a proper foundation for it; and the opinion of an expert requires demonstration or examination of the scientific or other intellectual basis of the conclusions reached: that is, the expert's evidence must explain how the field of "specialised knowledge" in which the witness is expert by reason of "training, study or experience", and on which the opinion is "wholly or substantially based", applies to the facts assumed or observed so as to produce the opinion propounded.
In Dasreef Pty Ltd v Hawchar [2011] HCA 21, the High Court set out, at [32], a simple two-step approach to such an assessment: The first is that the witness who gives the evidence 'has specialised knowledge based on the person's training, study or experience'; the second is that the opinion expressed in evidence by the witness 'is wholly or substantially based on that knowledge'.
It is also to be acknowledged, as is later discussed concerning the specific witness (Mr Clare) subject to challenge before the Commissioner, that there can be different pathways available to acquiring the necessary specialised knowledge to qualify a potential witness to give evidence on an expert opinion basis. As Einstein J observed in Idoport Pty Ltd & Anor v National Australia Bank Ltd [2001] NSWSC 123, at [153]: The Court must take special care to permit opinions for example as to functionality, to come forward from different streams of persons each of whom may have been able to establish by a different route that the section 79 criteria have been satisfied. The requisite specialised knowledge may have been acquired from different types of training, study and experience.
In light of the above setting out of what is to be assessed in considering whether evidence is to be accepted as expert, the first necessary step (although pleaded as an element of Ground 2) requires my examination of the Commissioner's reasons for concluding that assessment of, and satisfaction about the primary contested, that issue at the development consent stage requires consideration of the appropriateness of the Commissioner:

accepting Mr Clare as an expert;
then, preferring his reservations on this point; and
rejecting the confidence of Mr Doyle's experts that any issue concerning cross-falls and the inside edge could be dealt with at the detailed design stage for a construction certificate and should be deferred to be dealt with at that stage.

[25]

Assessment of Mr Clare's acceptability as an expert

It is clear from the transcript before the Commissioner, and from the general way in which Mr Doyle has run the appeal before me, that Mr Doyle was considerably frustrated at the fact that Mr Clare did not adopt what Mr Doyle considered to be the appropriately constructive approach to resolving issues which Mr Clare considered arose from the inadequacies Mr Clare had identified in the plans of the proposed driveway.
To the extent that this might have relevance, I am satisfied that, before the Commissioner, this was not an absolute position adopted by Mr Clare, as can be seen from his agreement that the issues arising with respect to the potential for vehicle-scraping at the top of the driveway were capable of resolution by minor adjustment to the plans.
The Commissioner set out, in her decision, the reason for her acceptance of Mr Clare as being appropriate to be accepted as an expert in these proceedings. She wrote: 16 At the hearing objection was taken to the Mr Clare's evidence being received as expert engineering evidence. The Applicant did not think he was an expert. I ruled against the Applicant's objection and have been asked to explain my ruling (AWS at p6). Mr Doyle's request for my reasons as set out at p6 of the AWS is reproduced below: "Mr Clare has been ruled to be an expert by the Court during the hearing against the opposition of the Applicant. In large part the Court had the benefit of evidence from the bar table that he had appeared as an expert in the Court for 15 to 20 years. The Applicant refers to Dasreef Pty Ltd v Hawcher [2011] HCA 21 which requires that the expert must have "specialised knowledge based in the person's training, study or experience "and that the evidence of the witness "is wholly or substantially based on the knowledge". The Applicant requests reasons for the Court's decision in this regard as the admission of evidence as expert evidence where in error substantially denies the Applicant natural justice, confuses the joint conferencing to which Mr Clare was admitted over the opposition of the Applicant and substantially increases the costs to the Applicant. The increased costs are caused by the need to chase down all suggestions without any professional distinction between matters of substance and issues of minor importance or typographical errors. 17 That said, the Applicant then (it would seem) concedes in the next paragraph of his written submissions that he has in fact been provided a sufficient opportunity throughout the hearing to answer Mr Clare's concerns. He states "Mr Clare's concerns have been well answered in the "hot tub' examination and by the reports of the Applicant's expert including the report of Mr Vardouniotis". 18 In the ultimate, the Applicant invites me to define the area of expertise of Mr Clare if it is to be given weight but presses his submission that "no weight should be given to Mr Clare's evidence as he was unable to properly assist the Court because he had admitted that he had not previously designed such works and therefore was unable to sensibly comment on the deign decision made in the application" (AWS at p7). 19 The transcript dated 28 October 2016 records at pp17-20 an exchange among Mr Nash of Counsel for the Council, Mr Doyle and me in respect of Mr Clare's evidence. The transcript records that my attention was drawn to Mr Clare's summary Resume attached to his Statement of Evidence (Exhibit 3) and a more comprehensive explanation in a document was handed to the Court at that time. My attention was drawn to the fact that Mr Clare is presently employed by the Council as its Development Engineer. His statement for the proceedings had been prepared in accord with the Expert Witness Code of Conduct provided in Schedule 7 of the Civil Procedure Rules 2005 and it states at the outset that he has agreed to be bound by those Rules and the Code. 20 At the time I was referred to Mr Clare's Resume which records his engineering surveying qualifications obtained in the early 1970s, and his extensive experience from 1977 to date in various roles at councils in New South Wales. As a development engineer with Gosford City Council between 1989 and 1999 and with Hornsby Shire Council since 1999, he has been required to assess engineering plans for compliance for vehicular and pedestrian access for DAs and other civil engineering works pertaining to developments. He has been a Court expert giving evidence on vehicle access on at least 10 occasions. While that experience in Court does not, of itself, elevate him to the role of expert (Dasreef) I am satisfied that his extensive experience is both relevant and current therefore helpful to the Court in understanding the issues in this case. In short, I am satisfied that Mr Clare has "specialised knowledge" of domestic driveway design by a combination of "training" and "experience" gained over nearly 40 years. 21 Mr Doyle accepts that Mr Clare has qualifications as an engineering surveyor which equips him to measure and set out engineering works (T 28/10/16 at p17 L34-46). However, he does not believe that that Mr Clare's expertise allows him to comment on driveway design and functionality. He submits his Certificates obtained since leaving school give him no training. Mr Doyle is also critical of Mr Clare's Statement of Evidence. He submits it does not provide the basis of his assumptions but rather religiously follows the contentions without analysis. It is submitted he is simply an advocate for Council. 22 I am afraid I cannot agree. Mr Clare's statement of evidence, while succinct, expresses opinion about the issues in contention based on his understanding of the plans and details which were available at that time (since amended ) as assessed against the relevant Australian Standards and the Council's controls on the facts of this case. The measurements Mr Clare refers to in his evidence both written and oral are reliable, given his expertise as an engineering surveyor and relevant to the issues. Such evidence was tested in lengthy cross examination by Mr Doyle. Mr Clare was unshaken in his resolve to provide an objective assessment of the proposal. 23 As I said when I admitted his report and his comments in the joint report, ultimately I must weight up his evidence with all of the other expert and non-expert evidence and attach appropriate weight to each. Mr Clare does not pretend to be a friction expert nor an engineer with the same academic qualifications as other experts who addressed the Court. Despite that, I am satisfied on the basis of his Resume that his evidence is of an expert engineering surveyor who for the last 40 years has gained experience in the assessment of vehicular access to residential developments and other civil engineering matters. He is in my opinion a well-qualified expert to express an opinion on the issue that he was called to address. They are the reasons why his evidence has been accepted by the Court.
In this context, it is appropriate to observe that it is now long-established that a primary decision-maker has a significant advantage, over those exercising an appellate function, in assessing the acceptability of, and weight to be given to, any witness. This arises because the first instance decision-maker has the advantage of observing the witness during the course of the witness' evidence, whilst those exercising an appellate function have, usually, a bare transcript of what occurred.
The first instance decision-maker has the advantage of assessment of all aspects of the witness' demeanour in forming an opinion about the value of the evidence given. It is not usual, on appeal, for such first instance evidentiary assessment to be set aside unless there is some glaring defect in the primary decision-maker's acceptance of, or giving weight to, the challenged evidence.
It is clear that the Commissioner formed the view that Mr Clare satisfied the necessary tests in s 79(1) of the Evidence Act in that his training AND experience qualified to be accepted as an expert. This was a finding of fact. There is nothing from Mr Clare's curriculum vitae or his evidence before the Commissioner that could cause me to conclude that the Commissioner's decision so to treat Mr Clare had miscarried. Mr Clare clearly satisfies, at the very least, the "experience" basis for qualification to give expert evidence on those aspects of the matter before the Commissioner with which he engaged.

[26]

Mr Clare as a Council employee

Mr Doyle also proposes that Mr Clare could not be regarded as an appropriate person to give expert evidence on behalf of the Council because he was an employee of the Council. Such a proposition is simply untenable.
The cases cited by Mr Doyle (Willoughby City Council v Transport Infrastructure Development Corporation (No 2) [2008] NSWLEC 238) and 253 Spit Road Pty Ltd v Mosman Municipal Council [2016] NSWLEC 1274) deal with circumstances where, directly or indirectly, the proposed witness might be perceived to have a conflict of interest in meeting the obligations for independence required by the Uniform Civil Procedure Rules 2005 (the UCPR) or the Expert Witness Code of Conduct.
Such conflicts can, potentially, arise in circumstances where a proposed witness could be perceived as having a direct or indirect pecuniary interest arising out of their employer's role in particular proceedings. In such circumstances, exclusion of such a potential witness may not be unreasonable, depending on the circumstances in which consideration of the potential for the employee to give expert evidence arises.
However, such a situation does not arise with respect to an employee of a council when the council's position in proceedings is consistent with the position adopted by the council employee in any internal advice (whether for more senior officers or for the council itself being immaterial) when that advice is proposed to be transmuted into a statement of expert evidence for the proceedings.
A contrary position arises when the position adopted by a council does not accord with earlier internal advice prepared by an employee who might, otherwise, be expected to give expert evidence. In such circumstances, it has been conventional for councils to engage the services of an external expert in the relevant discipline.
Although, in these proceedings, the Council initially proposed to rely on Mr Kennedy as an external consultant expert but subsequently determined to rely, solely, on Mr Clare, this position plays no role in assessing the fundamental principle of whether Mr Clare's employment by the Council acted as some disentitling factor in his giving of evidence on behalf of the Council. It cannot be relevant.
This is because neither Mr Clare or, more importantly, the Council could be regarded as having any pecuniary or other direct or indirect interest in the outcome of these proceedings (or, indeed, any other proceedings under the EP&A Act that did not deal with assets of the Council).
The Council, in proceedings such as these, is to be regarded as a responsible public authority; acting in the public interest; following its obligations under the Model Litigant Policy; and seeking to ensure that there is a proper assessment of the merits of a contested development proposal when those merits are tested against the various matters required by (the then numbered) s 79C of the EP&A Act.
This complaint about Mr Clare giving evidence on behalf of the Council, separate from the complaint about whether Mr Clare should have been regarded as an expert or not, is entirely without merit and is rejected.
This approach is consistent with the position that has been taken by the Court to the acceptance of qualified and/or experienced council officers being permitted to give expert evidence in areas relevant to their expertise gained by training, study or experience.

[30]

Mr Doyle's written submissions on Ground 1

Mr Doyle's written submissions in support of Ground 1 were in the following terms (Applicant's written submissions, page 3, paragraph 3.1 to page 5, paragraph 3.1.10): 3.1.1 The Commissioner in paragraph [5] of the reasoning records the two questions to be answered and the order in which they are to be answered. "It seems to me that there are two questions to be answered in order to resolve these proceedings: 1. Are the plans before the Court sufficiently detailed to allow for a proper assessment of this application? 2. If the answer to question 1 is yes) does the variation of the AS in this particular case result in a driveway design that is safe and environmentally sustainable?" (AB6) 3.1.2 The first question inverts sensible logic. Until the real issues are identified, the extent of the information required cannot be identified. 3.1.3 The Commissioner erred in defining the questions in the order in which the questions were answered. 3.1.6 The Applicant's Statements of Facts and Contentions set out the Applicants position. (AB 557-560) 3.1.7 The Commissioner erred by failing to specify and then to answer the most material issue, whether the proposed gradient of 33% was safe or assess an acceptable grade and slope. 3.1.8 The Appellant asserts that the Commissioner was led into error by Mr Clare, raising numerous minor issues which the three engineers (qualified and experienced) called by the Applicant considered should be dealt at the construction certificate stage. Mr Clare does not hold any relevant qualification, experience or training to be an expert engineer. Further, his report was merely a summary of the Respondent's Statement of Facts and Contentions and failed to record any materials or analysis to support his view. 3.1.9 In the case of Vaughan v Byron Shire Council [No. 2] [2002] NSWLEC 158, Lloyd J held: At [9] "I also accept the proposition that it is an error of law for a commissioner to misdirect himself as to the question he was required to answer; that is, to define otherwise than in accordance with law the questions of fact which he has to answer (Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 156)." 3.1.10 We submit that this error is an error of law vitiating the decision appealed.
During the course of his oral submissions, Mr Doyle addressed Ground 1, adding the following points (Transcript, 5 December 2017, page 4, lines 23 to 49): APPLICANT: Your Honour, we take you to paragraph 5 of the judgment of the commissioner, because we say that is the first error, and it informs the others. And that is where the commissioner establishes two questions to be answered in order to resolve the proceedings, "Are the plans before the Court sufficiently detailed to allow for a proper assessment of this application?" and if the answer to that is, yes, "Does a variation of the Australian standard in this particular case, result in a driveway design that is safe and environmentally sustainable?" We say that misunderstands the correct approach. We say that puts the cart before the horse. It says HIS HONOUR: Yes. APPLICANT: - "Do we have sufficient information before the crucial issues have been determined?" We say the crucial issues in this application is the grade of the driveway down the, down the hill, and then the, the workability of that design in providing a convenient carriageway for those who use it. So the real issue is the slope, and that's the distinguishing key factor in the design, and thereafter it's a matter of working out the detail of whether or not the design allows for effective use of that area by the people that use it. So we say that by asking, "Do I have enough information first?" you'll see that we think the commissioner has adopted en bloc the position of the Mr Clare, the expert for the council, who is the only HIS HONOUR: Yes. APPLICANT: - the only contender for the proposition that enough information doesn't exist.
Mr Doyle relies on an extract from a decision by Lloyd J in Vaughan v Byron Shire Council [No. 2] [2002] NSWLEC 158 (Vaughan) in support of the proposition that the Commissioner answering the questions she posed, in the order in which she addressed them, constituted an error of law. In Vaughan, Lloyd J was not addressing any proposition relating to the order in which questions might be posed and answered. His Honour said, at [7]: … I also accept the proposition that it is an error of law for a commissioner to misdirect himself as to the question he was required to answer, that is, to define otherwise than in accordance with law the questions of fact which he has to answer.
His Honour was adopting wording in Azzopardi v Tasman EUB Industries Ltd (1995) 4 NSWLR 139 at 156. The proposition stated by his Honour is undoubtedly correct. However, in these proceedings, Mr Doyle makes no complaint that the Commissioner posed the wrong questions, far from it. Mr Doyle merely complains as to the order in which she addressed them.
A proper reading of her decision discloses that there was nothing illogical in the order in which she addressed the questions about which Mr Doyle makes complaint.
Indeed, it would be potentially open to a reader to conclude that, had she answered the questions she posed in the order which Mr Doyle submits was appropriate, there may have been an element of illogicality in doing so.
However, whatever might be the issue of the order in which the questions were addressed, there is no doubt that the questions themselves were valid and appropriate, in the Commissioner's eyes, and that they assisted her address the issues requiring her attention in the proceedings.
There is no proper basis to complain about this aspect of the Commissioner's decision and, thus, Ground 2 is rejected.

[33]

The requirements of the Class 1 Practice Note

During the course of his oral submissions, I asked Mr Doyle about the requirement for the accuracy of plans, a requirement mandated by the Class 1 Residential Development Appeals Practice Note. His response was in the following terms (Transcript, 5 December 2017, page 9, line 21 to page 10, line 35): HIS HONOUR: Sorry, I want to take you back to the first basis, the first grounds of appeal. It is my recollection, but it is some time since I have read the commissioner's decision in preparation for today, that one of the matters which was of concern for her was the absence of any sections in the plans, that is, depicting the cross fall of the proposed driveway to its inner edge. Is that a correct recollection? APPLICANT: Certainly those issues came up. HIS HONOUR: Then how do you say to me that the plans would have been compliant with schedule A of the class 1 residential development appeals practice note, as requiring provision of all relevant information? APPLICANT: We say that the information that was there was well sufficient for the DA application. HIS HONOUR: All right. Well, to the extent that she says, at least as I read her decision, she drew some conclusion from not only the evidence given by Mr Clare, but also the evidence given by Mr Vardouniotis, that he did not have information concerning the cross fall on I think the inner edge of the proposed driveway, how I should conclude that the plans were adequate to found the application? APPLICANT: Because what we say is that Mr Vardouniotis suggested, and his evidence is we say, that he found the design satisfactory, and that when he came to a detailed design, he could resolve the other aspects. His evidence was he had analysed it along the centre line, and that the detail of the gradient along the inner curve was something that could be resolved during the design. HIS HONOUR: All right. Well, that's a matter that you will need to address later. That is, the appropriateness of deferring a matter that the commissioner appears to have considered of some importance in her merit assessment, as being information not available to her, and not appropriate to be deferred to the construction certificate drawings. APPLICANT: And in doing that, as we go through the transcript, it will be shown the only evidence on which she relies was Mr Clare. So the situation is it all comes back to the admission, we say as an error of law and certainly on the reasons not justify the admission of Mr Clare to make comments on things he doesn't understand, and in respect to which he has had no training, and we say no experience that's relevant. So there is a big issue that is there. The other aspect is that we would like to note what we say is an error that's relevant in those, in those respects, and it's at paragraph 28 of the judgment. The commissioner notes that, "I relied on the engineering evidence of Mr Trethewey." And: "While Mr Trethewey accepted a maximum gradient of 1:3 was acceptable for the straight section of the driveway, subject to the provision of a suitable skid resistant surface, after review of the design at the time he was not able to support the proposed design." And reading that paragraph one would say, "Well, it may well be that he had called the expert, and the expert hadn't been able to support the design, then some of the concerns that the commissioner raised would be, would be appropriate." But we will take you to the transcript where, after a detailed cross examination of all the levels in the relevant area, Mr Trethewey says he is supremely confident that all issues can be resolved. So we say that's where her Honour hasn't properly considered that evidence, and that's an error that has crept into the reasoning. Allied with Mr Clare's continual raising, we say, of minor points that could be resolved in the CC drawings, we say it adds up to an error. So we say it's very clear there are three experienced engineers saying there's sufficient details in these plans, and Mr Clare says, "I want more cross sections," or, "I want more cross sections," and we say that they are not required.
The transcript of 21 February 2018 before me records a lengthy exchange (Transcript, 21 February 2018, page 53, line 11 to page 56, line 13) between me and Mr Doyle concerning the absence of any cross-sections on the plans to show the cross-fall and the relative height of the inside edge of the proposed driveway at the bend which was of concern to Mr Clare. It is not necessary to reproduce the lengthy extract - it is sufficient to note that Mr Doyle conceded the absence of this information but continued to press that it was not necessary at the development approval stage.
However, the short exchange which followed on from that is instructive. The transcript records (Transcript, 21 February 2018, page 56, line 15 to 43): HIS HONOUR: What am I to make of the requirements in the schedule to the Class 1 Residential Development Appeals Practice Direction that requires that there be adequate plans? APPLICANT: We say they're adequate to send to a certified engineer. HIS HONOUR: Right, and it's concluded that they're not. APPLICANT: She's only concluded on the basis of Mr Clare going round raising concerns he doesn't know anything about. HIS HONOUR: I understand that. That takes me back to the question that you press that I ought not conclude that Mr Clare is qualified to give that evidence. APPLICANT: No. More particularly we'd say the commissioner should have given detailed reasons why she prefers the evidence of Mr Clare over three engineers. That's the issue. Three engineers say this is to be left. It's not a problem. No chartered professional engineer is going to design something a metre out of place. Mr Clare raises it with transitions, he raises it with the stairs, he raises it with everything you can think of at the end. HIS HONOUR: He may well have but the only one that the commissioner appears to have accepted is this question about the internal edge heights. APPLICANT: Well, that's one that's attracted her attention, yes, but the internal edges is a minor issue which if you check and you find it's not to your satisfaction that the cross-slope is too steep or there's some other aspect that you want to provide for, you adjust the centre line marginally and that's what Vardouniotis is trying to say to the commissioner at the time…
This leads to further consideration of the adequacy of the plans before the Commissioner.

[34]

The Council's submissions on the adequacy of the plans

Mr Nash addressed this point in his written submissions. His written submissions (although put concerning Ground 1) are relevant to this broader proposition. Although lengthy, it is appropriate to set the relevant portion out as it is primarily founded on relevant portions of the transcript before the Commissioner. The extracts below concern the inadequacy of information on the plans: 25. On the Applicant's own evidence from Mr Grieve and Mr Tretheway, the driveway was at the 'edge of acceptability'. Relevantly, Mr Grieve made the following admissions during the course of evidence at the hearing on 28 October 2016 (see Transcript [89] at 35 - 45) : COMMISSIONER: And no issue has been raised - excuse me for a moment, Mr Nash - as to this application not being the same as approved, but a different design. And do you accept that your colleague had indicated to the Court that this design of this driveway is at the edge of acceptability. WITNESS GRIEVE: I do. COMMISSIONER: And why do you say that? WITNESS GRIEVE: Well, because it's being proposed at 33%, that's certainly the limit. 26. Consistent with contentions 2(b) and 3, the Commissioner said she was not able to make a proper merit assessment of the modification application due to fundamental problems with the lodged plans, and she was not prepared to allow this issue to be deferred to construction certificate stage, particularly since even on the Appellant's own evidence, the proposed driveway design was 'at the edge of acceptability' (see Judgment [36] and [40]). 27. In light of that evidence, the Commissioner made a factual finding that the acceptability (or otherwise) of a domestic driveway with gradients of up to 34.05% ought be fully resolved prior to the grant of any modification to the Consent (see Judgment [40]-[41]). This is also consistent with the tenor of the 'note' in cl 2.6.2 of the Australian Standard. … 32. Further, on the Appellant's own evidence, even though an attempt can be made to review and consider the plans, the plans were a concept design only and did not give any, or any adequate, consideration to the critical edges on the curve of the proposed driveway (Judgment [41]) . This position is clear from the evidence of Mr Vardouniotis, the traffic engineer retained by the Appellant, during the course of examination at the hearing on 13 February 2017 (see Transcript [69] - [71]): WITNESS VARDOUNIOTIS: I have been to the site, yes. Look, all Ican really add, the purpose of my report - COMMISSIONER: Thank you, that what's I'm very keen to hear. WITNESS VARDOUNIOTIS: --was to look at the preliminary design of the - my focus mainly was on the centre-line of the driveway, just to see - or just to examine the feasibility of constructing such a driveway, you know, for the proposed topography. Now, I didn't go into any more detail as far as looking at the left or right-hand edges of the driveway; we simply look at the centre-line. COMMISSIONER: So just in terms of that, and bearing in mind your expertise as an engineering expert and having been directed to the centre-line, you don't dispute, if there's a cross fall as indicated that it's going to be at a different level as Mr Clare has suggested, possibly up to 38? WITNESS VARDOUNIOTIS: Yeah, look, I don't have - I don't dispute anything that Peter Clare has said, really. I - look, I can't comment whether a cross fall of 30% would cause an unworkable situation unless I examined the area in more detail, but I do accept the fact that, you know, cross falls of driveways typically for - when you have normal site constraints would usually be a few per cent cross fall from one kerb to the other. COMMISSIONER: So 2 to 6, I think, were the figures that were put? Was that 2 to 6 or 12? WITNESS CLARE: 2 to 6, Commissioner. WITNESS VARDOUNIOTIS But this is a site that obviously has extreme - COMMISSIONER: Sure. WITNESS VARDOUNIOTIS: --circumstances. Now, I was provided with a single elevation, again along the centre-line, so that's the gradient which I undertook my examination. But it's just a question of whether - I guess it boils down to how much information you provide at the DA stage and whether these are the sort of problems that will be solved at the construction certificate stage, and so, I didn't sort of take these as being construction drawings, necessarily, these are just simply a concept of the proposed driveway. COMMISSIONER: So just on that, your analysis is a concept of a proposed driveway, the centre-line that has the particular levels that you've indicated in your tables, that would be consistent without a cross fall. You haven't had regard to any cross fall? WITNESS VARDOUNIOTIS: I haven't examined in detail levels other than the driveway centre-line. I do accept that the gradings will vary from one edge of the driveway to the other, and - COMMISSIONER: And you haven't decided one way or the other - if I'm paraphrasing you only because I'm mindful of lunchtime - WITNESS VARDOUNIOTIS: Yeah. COMMISSIONER: --and I'm sitting here with a number of other people who want to eat, you're suggesting to me that without the analysis of the side edges, you have looked at a concept and its feasibility or workability is no higher than that concept based on the centre-line; you'd have to look at more detailed analysis? WITNESS VARDOUNIOTIS: That's right, but this will be - this will be the process of preparing construction certificate-type documentation. COMMISSIONER: Even for an extreme site like this? WITNESS VARDOUNIOTIS: Yes, well, I mean I think in this case, the design is probably sufficiently close to final levels, in my view, that there might some adjustment required in certain elements of the design, but just broadly speaking, I think it would be very difficult to find a solution that would require 35 full compliance with Australian standards; so I think this is a site where it's not possible to comply with the 25% gradient, so. COMMISSIONER: So your position is, and mindful, I assume you have the same experience with domestic driveways in various areas, do you, designing? WITNESS VARDOUNIOTIS: That's - that's correct, yeah, I've been a consulting engineer for 27 years, so part of - part of my range of duties is to look at geometry design for residential commercial driveways, so - COMMISSIONER: And in that time, have you ever recommended the approval of a driveway in this type of topography with that particular gradient of 34. - whatever - on the centre-line because you haven't turned your mind to 38, I won't ask you about that, but have you ever recommended that? WITNESS VARDOUNIOTIS: Well, to be honest, I've never come across a driveway of this gradient before that's being proposed, so - COMMISSIONER: Thank you. WITNESS VARDOUNIOTIS: --it's not a common situation. COMMISSIONER: No. So in 27 years, you've never come across a driveway of this gradient in a residential setting? WITNESS VARDOUNIOTIS: Well, other than, you know, I'm aware of some public roads that are in Sydney and in various parts of Sydney that are these sort gradients and a work-type area - COMMISSIONER: I'm not interested in public roads or the Harbour Bridge 15 that another witness took me to, all I'm concerned about is a residential driveway in Hornsby Shire Council that's being suggested is an appropriate driveway. You've indicated that it's - at a concept level - an appropriate driveway at 34, but in your experience, you've never done that before? WITNESS VARDOUNIOTIS: No. 33. In all of those circumstances, it was found that the plans did not allow a proper merit assessment to be made of the modification application i.e. the Commissioner could not be satisfied that the proposed driveway was safe in all of the circumstances. 34. Having determined the first question adversely to the Appellant, the Commissioner found that she was unable to approve the modification application as then constituted (see Judgment [43] ). The Commissioner further found that she was unable to adequately answer the second question, due to the deficiencies in the plans and materials before her. 35. The Appellant complains that the Commissioner did not assess and determine a safe and appropriate gradient for the driveway servicing the Land (AS, par [3.1.7]). However, the task for the Commissioner was only to assess and determine the modification application which had been made. That is what the Commissioner did. It was not for the Commissioner to assess 'an acceptable grade and slope' (see AS, par [3.1.7]). The Court as consent authority only considers the matters 'of relevance to the development the subject of [the application]' per s 79C(1) of the Environmental Planning and Assessment Act 1979. The Commissioner determined that the slope/gradient as proposed was not acceptable in all of the circumstances, and therefore properly discharged her duty to determine the modification application on its merits, having regard to the contentions advanced by the Respondent based on the applicable planning controls.
In speaking to his written submissions, he made the following additional points (Transcript, 21 February 2018, page 25, lines 7 to 18, page 26, lines 5 to 25, page 28, line 29 to page 29, line 16, and page 30, lines 1 to 34): NASH: Most critically, in other submission, was the observation by the commissioner which we reproduce at 25 of our submissions that this was as driveway which on any view of the evidence, including the appellant's own evidence, was a driveway at the end of acceptability. There were references in some parts of the evidence to the fact that the proposed driveway was at the extreme limit of what might be considered acceptable and indeed witness Grieve at paragraph 25 certainly says there that proposed at 33%, it was in fact 35%, but he says at 33% that's certainly the limit. The commissioner of course made merit findings which in our submission are not assailable on an appeal under section 56A in relation to this very matter and that's clear from the commissioner's reasons… … NASH: Again, when regard is had to the context in which that evidence is given he's talking there about the steepness of the slope that we are dealing with. Principally in the commissioner's mind was the fact that she required the assessment of the driveway, indeed the entirety of the driveway, including not just the centre line assessment but also the critical inside edges, to be assessed at the time of the development application and for it not to be deferred to construction certificate stage. I'll deal with my friend's ground 9 in terms of the adequacy of reasons last, but it is relevant to that because as I understand my friend's submission it is that the commissioner hasn't dealt with, as is alleged, the evidence of witness Trethewey when clearly she has because the extent to which that witness contributes on this topic was firstly to say that he would be supremely confident that this could all be resolved at CC stage. There are two points to note about that. Firstly, the reference to being supremely confident didn't relate to the assessment of the inside edge of the driveway where the driveway curved, and I'll take your Honour to the evidence of that in a moment. Secondly, the commissioner found clearly in her reasons and set out fully why she was of the view that all of these matters had to be assessed at the time of the application and not at a time of assessing a construction certificate… … NASH: If I could then take your Honour to further evidence that even on the appellant's own case was favourable to the application. In paragraph 32 of our written submissions we set out a series of questions that occurred between the commissioner and witness Vardouniotis where you'll see at about the middle of that page that witness Vardouniotis actually says that he doesn't dispute anything that Peter Clare has said. This will be relevant to the appellant's ground 2 and our response to it in relation to Mr Clare's expertise, but I just note that the witness there says he doesn't dispute Mr Clare's evidence: "I can't comment whether a cross-fall of 30% would cause an unworkable situation unless I examine the area in more detail, but I do accept the fact that you know cross-falls for driveways typically fall when you have normal site constraints would usually be a few per cent cross-fall from one kerb to the other. We know that in the context of this application we were not dealing with normal site constraints, we were dealing with extreme circumstances and a position that involved an application at the edge of acceptability." That's again clear, we've reproduced a reference to extreme circumstances at the bottom of the page, but then the witness at the bottom of our page 9 over to page 10: "I guess it boils down to how much information you provide at the DA stage and whether these are the sorts of problems that will be solved at construction certificate stage so I didn't sort of take these as being construction drawings necessarily, they're just simply a concept of the proposed driveway." Commissioner says: "On your analysis this is a concept of a proposed driveway to centreline, it has particular levels that you've indicated on your tables. That would be consistent without a cross-fall. You haven't had regard to any cross-fall." Then the witness says, "I haven't examined in detail levels other than the driveway centreline. I do accept that the gradients will vary from one edge of the driveway to the other." … NASH: This witness's own evidence was, for various things, but relevantly the curved section of the driveway was a matter that had to be demonstrated at DA design stage and we simply did not have evidence before the commissioner of that matter. That's clear again through the witness Vardouniotis's evidence reproduced on our page 10 of the submissions. The commissioner says: "And I'm sitting here with a number of other people who want to eat. You're suggesting to me that without the analysis of the side edges you have looked at a concept and its feasibility or workability is no higher than the concept based on the centreline. You'd have to look at more detailed analysis." Witness, "That's right, but this will be, this'll be in the process of preparing construction certificate type documentation." Commissioner, "Even for an extreme site like this?" Vardouniotis: "Yes, well, I mean, I think in this case the design is probably sufficiently close to final levels in my view. There might be some adjustment required in certain elements of the design but just broadly speaking I think it would be difficult to find a solution which required full compliance with Australian Standards so I think this is a site where it's not possible to comply with the 25% gradient." Then a matter that's been considered in some detail in the middle of the page, witness Vardouniotis observing, "Well, to be honest, I've never come across a driveway of this gradient before that's been proposed." Commissioner, "Thank you." Witness Vardouniotis, "It's not a common situation, and that's over a period of some 27 years." At paragraphs 34 and 35 on page 12 of our submissions we've dealt with why we say the commissioner was, and it was open to her on the evidence, to find in relation to both of the questions that she posed for herself as to why they couldn't be adequately answered, the commissioner found that she was unable to adequately answer the second question due to the deficiencies in the plans and the materials before her.

[35]

Consideration

To understand whether the Commissioner's conclusion that there was insufficient information to assess the safety of the proposed design has validity, it is appropriate, first, to set out the portions of the Commissioner's reasons for decision that show her conclusion on this point. The relevant extract from her decision is: 39 Yet, Mr Doyle invites the same opportunity for complaint in respect of this application. The design detail before the Court is deficient. The deferral of more detailed plans to the construction certificate stage leaves open the risk that an equally unattractive, yet compliant driveway, may need to be designed because the currently proposed design cannot actually be built to be compliant. The evidence is that the critical gradient on the edge of the driveway has not been assessed by Mr Vardouniotis. While he believes it may be designed to work, I have no assurance from a qualified engineer of that fact. Therefore, I am not satisfied that it is appropriate to vary the requirement in the AS adopted by the relevant DCP in this case. [emphasis added] 40 After assessment, I find on the evidence of Mr Vardouniotis that a critical part of the driveway edge has not been designed in sufficient detail and therefore is not able to be assessed by a qualified engineer as required in order to vary the AS. Moreover, the earlier deferral of that same design detail at the DA stage resulted in a 40m long 3.4m high elevated "land bridge" being approved. The Council maintains that the suitability of the design in all its detail should be assessed as called up by s96 (under section 79C) at this point of time rather than the construction certificate stage. Given the topography of the site, and the evidence led by Mr Doyle that the proposed design is "at the edge of acceptability", I am not prepared to vary an AS without appropriate engineering certification to justify that course. [emphasis added] 41 The final plans relied upon by the Applicant have been prepared by somebody who has not been named and whose qualifications are unknown. While they have been assessed by a qualified engineer, Mr Vardouniotis, his assessment is heavily qualified - only for the purposes of a concept design, only in respect of the centre lines gradients and transitions with no consideration of the critical edges on the curve. In the circumstances I cannot be satisfied on that assessment that the ultimate design will prove acceptable, after assessment under s79C, such as to warrant a variation of the AS that has been adopted by this Council in its DCP. [emphasis added] 42 There is, as the Council submits, insufficient detail to properly assess this application.
It is clear that the Commissioner's complaint is that there is no detail as to the cross-fall of the bend section of the driveway proposed to be constructed. The plans disclose the complete absence of any cross-section that would permit any proper understanding of the cross-fall at this location on the proposed driveway.
It was obvious from the questioning of Mr Vardouniotis, Mr Doyle's own engineering expert, that he had not examined the issues of cross-fall and had only applied himself to the gradient of the centreline of the proposed driveway. This evidence was in the following terms (Transcript, 13 February 2017, page 69, line 21 to page 71, line 21): WITNESS VARDOUNIOTIS: --was to look at the preliminary design of the -- my focus mainly was on the centre line of the driveway, just to see -- or just to examine the feasibility of constructing such a driveway, you know, for the proposed topography. Now, I didn't go into any more detail as far as looking at the left or right hand edges of the driveway; we simply looked at the centre line. COMMISSIONER: So just in terms of that, and bearing in mind your expertise as an engineering expert and having been directed to the centre line, you don't dispute, if there's a cross fall as indicated, that it's going to be at a different level as Mr Clare has suggested, possibly up to 38? WITNESS VARDOUNIOTIS: Yeah, look, I don't have I don't dispute anything that Peter Clare has said, really. I - look, I can't comment whether a cross fall of 30% would cause an unworkable situation unless I examined the area in more detail, but I do accept the fact that, you know, cross falls of driveways typically for when you have normal site constraints would usually be a few per cent cross fall from one kerb to the other. COMMISSIONER: So 2 to 6, I think, were the figures that were put? Was that 2 to 6 or 12? WITNESS CLARE: 2 to 6, Commissioner. WITNESS VARDOUNIOTIS: But this is a site that obviously has extreme-- COMMISSIONER: Sure. WITNESS VARDOUNIOTIS: --circumstances. Now, I was provided with a single elevation, again along the centre line, so that's the gradient which I undertook my examination. But it's just a question of whether I guess it boils down to how much information you provide at the DA stage and whether these are the sort of problems that will be solved at the construction certificate stage, and so I didn't sort of take these as being construction drawings, necessarily, these are just simply a concept of the proposed driveway. COMMISSIONER: So just on that, your analysis is a concept of a proposed driveway, the centre line that has the particular levels that you've indicated in your tables, that would be consistent without a cross fall. You haven't had regard to any cross fall? WITNESS VARDOUNIOTIS: I haven't examined in detail levels other than the driveway centre line. I do accept that the gradings will vary from one edge of the driveway to the other, and COMMISSIONER: And you haven't decided one way or the other if I'm paraphrasing you only because I'm mindful of lunchtime WITNESS VARDOUNIOTIS: Yeah. COMMISSIONER: and I'm sitting here with a number of other people who want to eat, you're suggesting to me that without the analysis of the side edges, you have looked at a concept and its feasibility or workability is no higher than that concept based on the centre line; you'd have to look at more detailed analysis? WITNESS VARDOUNIOTIS: That's right, but this will be this will be the process of preparing construction certificate type documentation. COMMISSIONER: Even for an extreme site like this? WITNESS VARDOUNIOTIS: Yes, well, I mean I think in this case, the design is probably sufficiently close to final levels, in my view, that there might some adjustment required in certain elements of the design, but just broadly speaking, I think it would be very difficult to find a solution that would require full compliance with Australian standards; so I think this is a site where it's not possible to comply with the 25% gradient, so COMMISSIONER: So your position is, and mindful, I assume you have the same experience with domestic driveways in various areas, do you, designing? WITNESS VARDOUNIOTIS: That's that's correct, yeah, I've been a consulting engineer for 27 years, so part of part of my range of duties is to look at geometry design for residential commercial driveways, so-- COMMISSIONER: And in that time, have you ever recommended the approval of a driveway in this type of topography with that particular gradient of 34. - whatever on the centre line because you haven't turned your mind to 38, I won't ask you about that, but have you ever recommended that? WITNESS VARDOUNIOTIS: Well, to be honest, I've never come across a driveway of this gradient before that's being proposed, so COMMISSIONER: Thank you. WITNESS VARDOUNIOTIS: --it's not a common situation. COMMISSIONER: No. So in 27 years, you've never come across a driveway of this gradient in a residential setting? WITNESS VARDOUNIOTIS: Well, other than, you know, I'm aware of some public roads that are in Sydney and in various parts of Sydney that are these sort gradients and a work-type area COMMISSIONER: I'm not interested in public roads or the Harbour Bridge that another witness took me to, all I'm concerned about is a residential driveway in Hornsby Shire Council that's being suggested is an appropriate driveway. You've indicated that it's at a concept level an appropriate driveway at 34, but in your experience, you've never done that before? WITNESS VARDOUNIOTIS: No.

[37]

The Commissioner's findings were ones of fact

The Commissioner's findings concerning inadequacy were ones of fact. Unless the Commissioner's findings of fact are unreasonable to the extent necessary to infect her decision in a fashion that caused her decision-making to miscarry, there can be no error vitiating her decision on the basis of those findings.
The transcript before the Commissioner records the following short exchange with Mr Nash (Transcript, 13 February 2017, page 100, line 36 to page 101, line 3): COMMISSIONER: …So in terms of, also, in this case, deferring such specific design to the construction certificate stage, there would be no further merit assessment of what comes forward at that point to achieve, on the evidence that's available, 34% at least in the midline. Am I correct in that? NASH: There is absolutely no further merit assessment after the DA stage. COMMISSIONER: So that's the basis, despite the wording you have taken me to, of the council's view that this detail needs to be assessed at this point in time for the DA? NASH: Yes, because the certifier, whoever that be, is not undertaking a s 79C assessment. They are merely issuing a certificate, which they must make a judgment, is, whether or not it is consistent with the development consent under cl 145 of the regulation, and that in our submission, at least in this context, and I can't think of any other context where there would be any merit assessment at CC stage.
In this appeal, Mr Nash made the following submission concerning this transcript passage and what I should draw from it. He said (Transcript, 21 February 2018, page 27, lines 15 to 19): In our submission that's plainly correct, given the requirements of clause 145 of the Environmental Planning and Assessment Regulation which provides that the grant of a construction certificate must be consistent with or not inconsistent with the development consent and there being no further section 79C assessment at the time of determining the construction certificate.
The position put by Mr Nash, before the Commissioner and before me, is clearly correct. The merit assessment takes place at the time of development consideration and not at the construction certificate stage.
The Commissioner concluding that she did not have sufficient information to conclude that the proposal was safe and could not be deferred was a finding of fact. Her finding of insufficiency of information was thus a finding of fact open to her. It does not found any error of law unless it is so unreasonable as to give rise to such a legal defect.
I address this possibility immediately below - a possibility I reject for the reasons set out.

[39]

Conclusion on the question of insufficient information

Given that I have concluded that there was no reason why the Commissioner should have upheld Mr Doyle's challenge to Mr Clare's qualification on the basis of his lack of university qualifications, or Mr Doyle's assertion as to Mr Clare's lack of relevant experience to give expert evidence, a careful examination of the transcript of the evidence given before the Commissioner does not disclose any basis upon which I could, or the Commissioner should have, concluded that his evidence was implausible and should not have been given any weight.
It is clear that the basic reason why the Commissioner rejected the proposed design of the driveway is that she accepted Mr Clare's evidence that critical information was not available for her assessment; that the plans which were before her did not enable her to conclude that they provided a basis for approval of the design; that the confidence of Mr Doyle's experts that any problems which might arise were likely to be capable of being rectified at the detailed design stage did not persuade her that it was permissible to defer such rectification to the detailed design stage in circumstances where she had accepted Mr Clare's evidence that it was necessary and appropriate to have that information at the development assessment stage.
Accepting that Mr Clare was an expert witness whose evidence was appropriate to be weighed against the evidence of the relevant experts of Mr Doyle's (a proposition earlier dealt with where I have found that there was no error in the Commissioner concluding that it was appropriate to do so), it was open to the Commissioner, for the reasons she set out, to prefer Mr Clare's evidence in her weighing of the expert evidence (including the lack of absolute certainty on behalf of Mr Doyle's relevant experts).
It therefore follows that the course adopted by the Commissioner of considering Mr Clare's reservations and balancing those reservations against the evidence given by the other witnesses (particularly Mr Vardouniotis who confirmed that further design work would be required later - at the construction certificate stage) was entirely appropriate. This was particularly so as it is clear from that which I have earlier set out that there would be no further merit assessment at the construction certificate stage of a driveway at the limit of design acceptability. The Commissioner accepted that critical information was absent which was necessary for her to assess the safety of the proposal - a finding of fact open to her and not infected by any unreasonableness.
The fact that the Commissioner reached this conclusion was sufficient to cause her to dispose of the appeal by refusing to approve the modification to the original development consent. As I have found that there is no legal error in this aspect of the Commissioner's decision-making process that is sufficient to dispose of this appeal by dismissing it.
Whatever other matters may have been traversed by the Commissioner, together with whatever conclusions she may have reached with respect to them, these are irrelevant, given the fact that, on one fundamental and sufficient basis, the Commissioner's conclusion that the appeal should be dismissed is unassailable.

[40]

Conclusion

In light of that which has been set out above, I have concluded that: 1. The Commissioner undertook a proper assessment of whether or not Mr Clare should be regarded as an expert for the purposes of the proceedings; 2. The conclusion that he should be permitted to give expert evidence was open to her on the basis of his qualifications, knowledge or experience disclosed in his curriculum vitae; 3. There was no defect in her approach to weighing the differing opinions arising from the expert evidence; and 4. There was no demonstrable unreasonableness (let alone any unreasonableness which would amount to an error of law) in her conclusion that the absence of evidence concerning relevant cross‑sectional detail of the proposed driveway meant that she could not conclude that the now proposed driveway design was safe and warranted the setting aside of the 25% maximum grade specified in the DCP and the presumptive maximum in the Standard.
There is no error disclosed in the Commissioner's finding that she had insufficient evidence to be satisfied that the proposed design was safe and that a relaxation of the 25% grade in the Standard should be approved.
As this was the primary reason for her dismissal of the appeal and this reason was entirely sufficient in itself to bring about that result, the fact that this conclusion must stand mandated the Commissioner to reach the overall conclusion concerning this aspect of the proceedings, as she had set out in [40] to [43] of her decision. This reasoning caused her dismissal of the appeal. There is no error demonstrated in her so concluding.
As a consequence, it is unnecessary to turn to address any of the other complaints made by Mr Doyle about the Commissioner's conclusions or reasoning in support thereof.
As Mr Doyle's complaint about the Commissioner's conclusion (of the fundamental lack of necessary information on the plans to permit her to conclude the proposed driveway was safe) lacks merit, the appeal must be dismissed.

Doyle v Hornsby Shire Council

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (43 paragraphs)

Parties

Cases Cited (19)

Cited By (1)