Farnworth Holdings Pty Limited v Botany Bay City Council

Background 1 This is an appeal under s 56A of the Land and Environment Court Act 1979 by the respondent, Botany Bay City Council ("the council"), against a decision of Commissioner Nott, such an appeal being limited to a question of law. The applicant before the Commissioner had appealed against the council's refusal of a development application for the subdivision of lots 29 and 30 in deposited plan 344243 at Nos. 55- 57 Carinya Avenue, Mascot, into four lots. Each existing lot presently contains a pair of semi- detached dwellings, so that after subdivision there would be one dwelling on each lot. Commissioner Nott granted consent to the subdivision in part. 2 In the present proceedings the respondent council appeals from so much of the decision and order of Commissioner Nott granting development consent for a subdivision to create the proposed lots 3 and 4 and a residue lot out of lots 29 and 30 in deposited plan 344243 at the subject property. The grounds of appeal 3 At issue is the Commissioner's consideration of the council's Subdivision Development Control Plan ("the DCP") pursuant to s 79C(1)(a)(iii) of the Environmental Planning and Assessment Act 1979 ("the EP&A Act"). The council relies upon four grounds in this appeal which, it is claimed, amount to errors of law: 1. The Commissioner erred in that he failed to consider or properly consider cll 9.1 and 11 of Botany Bay City Council Subdivision Development Control Plan ("the DCP"). 2. The Commissioner erred in his construction of cl 11 of the DCP. 3. The Commissioner erred in that in purporting to properly take into consideration the DCP he varied the development standards in cl 9.1: (a) Without making a finding or forming a view as to whether exceptional circumstances had been established within the meaning of cl 11 of the DCP. (b) Without making a finding or forming a view as to whether the applicant has submitted a well- founded and detailed planning submission which demonstrated each of the four matters identified by dot points in cll 11 of the DCP. 4. To the extent that the Commissioner did make such a finding or form such a view referred to Ground 3, the Commissioner erred in that he failed to give reasons or proper reasons with respect thereto. The relevant planning provisions 4 The clauses of the DCP which are relevant are cll 9.1 and 11. Clause 9.1 of the DCP, headed "Zone No. 2(a) Residential A", relevantly states as follows: Council shall not grant consent to the residential subdivision of land within Zone No. 2(a) unless it is satisfied that: (a) The area of each allotment to be created is not less than that required by the Subdivision Precincts and Development Control Map. (b) The frontage of each allotment to be created to a public road is not less than required by the Subdivision Precincts and Development Controls Map. … 5 In the present case the effect of this clause is to require a minimum area of each allotment of 300 square metres and a minimum frontage of each allotment of 10 metres. 6 Clause 11 of the DCP, headed "Special Circumstances", allows exceptions to the application of the DCP. It provides: Notwithstanding the provisions of the DCP, Council may in exceptional circumstances consider varying the development standards set out in this plan subject to the submission of a well founded and detailed planning submission which demonstrates that: · Compliance with the relevant development standard is unreasonable and unnecessary in the circumstances. · Strict compliance with the DCP would tend to hinder the objects specified in Section 5(a)(i) and (ii) of the Environmental Planning and Assessment Act, 1979. · Variation of the relevant development standard will not undermine the objectives of the DCP. · Variation of the relevant development standard will not establish an undesirable precedent within the City of Botany Bay. When considering an application under Clause 11 of this DCP Council will examine whether the proposed subdivision in terms of its allotment areas and frontages fits in with the general subdivision pattern in the immediate locality. Generally speaking the applicant will need to demonstrate that the allotment that is proposed to be subdivided is at least twice as large as other allotments in its immediate vicinity (i.e. it is a "double- block"). Notwithstanding the provisions of this DCP Council will consider on its merits: · Any application by the Crown or a public authority to subdivide. · Any subdivision for those purposes set out in clause 6 of State Environmental Planning Policy No. 4. 7 The subdivision as approved by the Commissioner comprises one lot having a frontage of 7.845 metres and an area of 241.1 square metres; one lot having a frontage of 7.835 metres and an area of 241.6 square metres (being the subdivision of one existing lot); and leaving the other existing lot having a frontage of 15.8 metres and an area of 486.6 square metres. The parties' submissions 8 Mr T S Hale SC, appearing for the appellant council, relies on the following submissions: (a) Taking the DCP into consideration under s 79C(1) requires a " proper, genuine and realistic consideration of the provisions of the DCP ": Zhang v Canterbury City Council (2001) 51 NSWLR 589 at 595, 601; North Sydney Council v Ligon 302 Pty Ltd (No. 2) (1996) 93 LGERA 23 at 28. (b) Adherence to cl 11 of the DCP would permit the council (and the Court on appeal) to consider varying the development standards in " exceptional circumstances … subject to the submission of a well founded and detailed planning submission which demonstrates …" each of the four dot points which follow that phrase. That is, these are conditions precedent to considering a variation of a development standards set out in the DCP. (c) The Commissioner made no finding that the applicant had demonstrated any of the four matters which cl 11 required to be demonstrated, due to his erroneous interpretation of cl 11. Moreover, the Commissioner did not seek to address the third and fourth dot points in cl 11, critical in the circumstances of the proceedings. Whether or not this is the case, he failed to properly consider cl 11. (d) The failure to refer to such a critical finding in the judgment would lead an appellate court to infer that the lower court had failed to give consideration to it or that it had failed to form the requisite opinion: Beale v GIO of NSW (1997) 48 NSWLR 430 at 443; Currey v Sutherland Shire Council (1998) 100 LGERA 365 at 375. (e) The Commissioner's failure to include in his reasons that he was satisfied that the relevant matters had been demonstrated in this case was an error of law: Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd (1983) 3 NSWLR 378 at 385- 386. 9 Mr G B Newport, appearing for the applicant for consent (the respondent in this appeal), relies, inter alia, on the following submissions: (a) The critical issue to be determined (identified in par [5] of the Commissioner's decision) was the size and width of the proposed lots, which did not comply with the numerical requirements of cl 9 of the DCP. Clause 11 dictated the approach to be taken, namely examination of the subdivision pattern in the immediate locality and determining whether the existing allotments were double blocks. (b) Despite the absence of an express reference to the first three dot points of clause 11, the clearest inference is that the Commissioner understood the provisions and properly considered them. The approach taken by the Commissioner, of examining the subdivision pattern and the double block size, disclosed his reasoning. (c) The duty to provide sufficient reasons for decisions imposed upon adjudicators ( Kiama Constructions Pty Ltd v Davy (1996) 40 NSWLR 639 at 640) extends to exposing findings upon the crucial issues ( Westport Marina Developments Pty Ltd v Concord Council (2000) 109 LGRA 451) and " his train of thought " ( City Plan Services Pty Ltd v Sydney City Council (1999) 105 LGERA 283 at 289). The only way to discern whether a consideration critical to the case was taken into account is by examining the reasons of the Commissioner, but not with a " fine-tooth comb " ( Randwick Municipal Council v Crawley & Ors (1986) 60 LGRA 277 at 284), nor " in an overly critical or pernickety way ": North Sydney Council v Ligon 302 Pty Ltd (No. 1) (1995) 87 LGERA 435 at 442. (d) The Commissioner had before him the expert evidence of the applicant's town planner, Mr R B Smyth, who had identified the DCP and the parts of clause 9.1 relevant to the application of clause 11. (e) The DCP was identified as the focal point of consideration in par [13] of the Commissioner's decision. The Commissioner identified the DCP, the relevant requirements of cll 9 and 11 and the special circumstances that may result in a variation of the standards (in par [10]); and then stated that he had taken these provisions into account. (f) Despite not having expressly referred to the results of his consideration of the first to third dot points in cl 11, the Commissioner did (at par [24]) expressly refer to the considerations constituting the approach to the application of cl 11 as well as expressly referring to the consideration of the fourth dot point. Further, the considerations in the 2 paragraphs following the four dot points in cl 11 were expressly applied to the present case (in pars [7] to [26] of the decision). The consideration given to clause 11 10 Clause 11 of the DCP contains three separate limbs as follows: (a) notwithstanding the provisions of the DCP, the council may in exceptional circumstances consider varying its development standards; (b) given the submission of a well founded and detailed planning submission which demonstrates the matters described under the four dot points set out in the clause; (c) the council can vary a standard under the clause, and in so doing, it must consider the matters which are set out in the two paragraphs following the four dot points. 11 In the proceedings before the Commissioner there was in evidence a planning submission which satisfied the second limb of cl 11. That was a statement of evidence of consultant town planner, Mr R B Smyth. After setting out the terms of cl 11, Mr Smyth's report states: Compliance with the nominated guidelines quoted above is unreasonable and unnecessary in this case because there is an existing development on the land that already establishes the pattern of development on the land. The Objects found in S5(a)(i) and (ii) of the Environmental Planning and Assessment Act 1979 would be satisfied by variation of the DCP provisions. The subdivision would lead to separate ownership and retention and improved maintenance of existing dwelling houses. Consent would not be inconsistent with the said objects. Variations of the relevant guidelines will not undermine the objectives of the DCP. Variation of the relevant guidelines in this case will not establish an undesirable precedent within the city of Botany Bay as there are few if any similar situations and if there were any, each application should be dealt with on its merits. All other semi detached dwellings in close proximity to the subject site have already been subdivided. In terms of allotment areas and frontages does fit with the general subdivision pattern of the area. The majority of nearby allotments along Carinya Avenue have about a 12 metre frontage and a depth of about 30 metres and an area of about 360 m 2 . However along the same side of Carinya and on the opposite side there are original allotments that ranges up to about 16 metres in width that have been developed with a pair of semi-detached dwellings and are also subdivided. The location of such nearby developments is shown on Figure 1. Obviously the early planners of this area intended to provide a variety of housing types by allowing a proportion of slightly wider allotments for semi-detached houses. In addition the proposed allotment sizes and widths are only slightly below Council's requirements and presently easily accommodate the dwellings with more than 5 times the minimum open space requirement. 12 It can be seen that the report covers each of the four dot points in cl 11, so that the second limb was satisfied. The Commissioner notes in his judgment the fact that evidence was given for the applicant by Mr Smyth (par [6] of his decision), thereby acknowledging the report. The Commissioner then states as follows: [10] The council's Subdivision Development Control Plan , which became effective on 8 June 1999, specifies that in the subject locality each lot to be created should not be less than 300 m2 and that it should have a minimum frontage of 10 m. The DCP requires that vehicular access be provided directly from a public road to each lot, and that provision should be made for carparking for each dwelling in accordance with council's carparking requirements. These and other requirements are set out in cl 9.1 of the DCP. As more fully set out in cl 11 of the DCP (all of the provisions of which I take into account), the council may vary these standards in special circumstances. Clause 11 includes the foolowing: When considering an application under clause 11 of this DCP, Council will examine whether the proposed subdivision in terms of its allotment areas and frontages fits in with the general subdivision pattern in the immediate locality. Generally speaking, the applicant will need to demonstrate that the allotment that is proposed to be subdivided is at least twice as large as other allotments in the immediate vicinity (i.e. it is a double-block). … [13] In determining whether to grant development consent, the council's DCP should be a focal point of consideration: Zhang v Canterbury City Council [2001] NSWCA 167 at par 75 per Spigelman CJ. However, on the one hand, the mere fact that a proposed subdivision meets the numerical requirements of the DCP or comes within the special circumstances of cl 11 does not automatically mean that development consent will be granted. On the other hand, if a proposed development does not meet the numerical requirements and does not strictly speaking fall within the special circumstances of cl 11, the council is not precluded in an appropriate case from granting development consent, having given proper and genuine consideration to the DCP and having considered all other relevant matters under s 79C of the Environmental Planning and Assessment Act 1979 . 13 The Commissioner also sets out his assessment of the considerations required by the third limb of cl 11 (in pars [17] to [23] of his decision). In the course of doing so the Commissioner describes the general subdivision patterns in the immediate locality, including a comparison of the subject lots with the sizes of other allotments in the immediate locality, and, in particular, a description of the sizes of lots both opposite and behind the subject land (some being smaller than the proposed subdivided lots in this instance). 14 The Commissioner concludes his discussion of this section of his decision as follows: [23] Nevertheless, having regard to the varied size and frontage of lots in the immediate locality, the proposed lots, being near the western end of Carinya St, will fit in with the existing subdivision pattern. I also take into account as a reason for departing in this case from the strict numerical requirements of the DCP that the proposed lots 3 and 4 each contain an exiting [sic] semi-detached dwelling of solid brick construction. Conclusions 15 It has been long settled that a judicial officer is duty bound to state grounds upon which a decision is based, and that a failure to do so amounts to an error of law (Pettitt v Dunkley [1971] 1 NSWLR 376, Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, City Plan Services Pty Ltd v Sydney City Council (1999) 105 LGERA 283). The duty extends to findings on any issue which is critical to the case (Mifsud v Campbell (1990) 21 NSWLR 725, North Sydney Council v Ligon 302 Pty Ltd (No. 1) (1995) 87 LGERA 435). 16 The requirement to provide reasons, however, does not necessitate a tedious examination of the detailed evidence or a minute explanation of every step in the reasoning process that leads to the conclusion (Soulemezis at 259). Reasoning should be such so as to "expose his train of thought" (City Plan Services Pty Ltd v Sydney City Council at 289). In Athens v Randwick City Council [2002] NSWCA 83, Giles JA (Handley and Beazley JJA concurring) said at [16]: What is sufficient to fulfil the duty, however, depends on the circumstances. The touchstone of ability to understand why the decision was made does not call for reference to all the evidence in the case, or for resolution of all conflicts of fact. Nor does it call for explicit description of every step in a chain of reasoning… 17 Given the foregoing principles, it follows that reasoning need not be lengthy or elaborate (Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430 at 433). It is also established that the duty of a judge to disclose reasons for a decision is more onerous than that imposed upon a lay commissioner (Brimbella Pty Ltd v Mosman Municipal Council (1985) 79 LGERA 367 at 368) and that a "fine-tooth comb" approach should not be employed when examining such decisions for errors of law (Coles v Woollahra Municipal Council (1986) 59 LGRA 133 at 138, Randwick Municipal Council v Crawley (1986) 59 LGRA 277 at 283, Brimbella at 368). Likewise, it would be wrong for a court on appeal to examine the decision as if it were written by a lawyer (Brimbella at 368 per Priestley JA, Kirby P and McHugh JA agreeing, Fast Buck$ v Byron Shire Council (1999) 103 LGERA 94 at 98 per Handley JA). (Although the Commissioner in the present case happens to be a lawyer, he is not a judge and the more onerous duty imposed upon a judge would not extend him.) 18 The approach by which to discern whether the Commissioner provided adequate reasoning and whether factors critical to the case were properly considered, is by examining the reasons given for the decision. This procedure, however, must not be undertaken "in an overly critical or pernickety way" (North Sydney Council v Ligon 302 Pty Ltd (No. 1) at 442). 19 It is with these principles in mind I turn to the grounds of appeal. Ground 1: The Commissioner erred in that he failed to consider or properly consider cll 9.1 and 11 of Botany Bay City Council Subdivision Development Control Plan ("the DCP"). 20 The Commissioner, despite qualifying his observation, states in par [13] that the DCP should be a focal point in considering the development appeal (citing Zhang v Canterbury City Council [2001] NSWCA 167; (2001) 51 NSWLR 589). This serious consideration of the provisions of the DCP is found in pars [9] to [13] of the decision, under the heading "planning controls". In par [10] the Commissioner expressly refers to the relevant development controls set out in cl 9.1: "[the DCP] specifies that in the subject locality each lot to be created should not be less than 300 m2 and that it should have a minimum frontage of 10 m." Further, given the Commissioner's statement that "[t]hese and other requirements are set out in cl 9.1 of the DCP", it is clear that the Commissioner was fully appreciative of the requirements of cl 9 in relation to the proposed development. 21 Moreover, in considering the implications of the controls imposed by cl 9.1, the Commissioner, in the fourth sentence of par [10], refers to the entirety of clause 11 of the DCP in illustrating what is required to vary such standards: "[a]s more fully set out in cl 11 of the DCP (all of the provisions of which I take into account), the council may vary these standards in special circumstances". The Commissioner then extracts the two paragraphs which follow the four dot points in cl 11, introducing them with the words: "Clause 11 includes the following…". Given this, it is clear that rather than setting out in full the express terms of cl 11, the Commissioner has acknowledged all the provisions of that clause. That is, he sets out the two considerations which require assessment by the consent authority (having previously acknowledged the evidence of Mr Smyth). 22 This construction of par [10] is supported by pars [11] and [12] of the decision, in which the Commissioner compares the present appeal with two previous cases that dealt with the requirements of cll 9.1 and 11 of the DCP. It follows from this analysis, together with his consideration of the subdivision pattern and allotment sizes in the vicinity (in par [17] to [23]), that the Commissioner did undertake a "proper, genuine and realistic consideration" (Zhang at 595) of cll 9.1 and 11 of the DCP, and has not erred in law in this respect. Ground 2: The Commissioner erred in his construction of cl 11 of the DCP. 23 As noted above, in par [10] of his decision, the Commissioner extracts a portion of cl 11. However, also as noted above, he is careful to state that "[a]s more fully set out in cl 11 of the DCP (all of the provisions of which I take into account), the council may vary these standards [in cl 9.1] in special circumstances." Although it would have been clearer if the Commissioner had stated cl 11 in its entirety, he referred to and "[took] into account" the whole of cl 11 before extracting a segment of it, so that the Commissioner did consider cl 11 in its complete form, and relevantly, has not erred in his construction of cl 11. Moreover, the Commissioner's subsequent consideration of cl 11 in pars [11] to [13] and in pars [17] to [23] demonstrates a proper understanding of the clause. Ground 3: The Commissioner erred in that in purporting to properly take into consideration the DCP he varied the development standards in cl 9.1: (a) Without making a finding or forming a view as to whether exceptional circumstances had been established within the meaning of cl 11 of the DCP. 24 This ground is a reference to the first limb of cl 11 of the DCP. It is submitted by Mr Hale that the Commissioner had an obligation to make preliminary findings in considering a variation of the standards of cl 9.1 pursuant to an application under cl 11 of the DCP. Specifically, Mr Hale submits that the Commissioner had to first determine that "exceptional circumstances" had been established within the meaning of cl 11 of the DCP. Secondly, he submits that the Commissioner then had to find that the applicant had submitted a "well founded and detailed planning submission which" demonstrates the issues raised by the four dot points in clause 11. 25 It was observed by the Commissioner in par [5] of his decision that the issues dealt with in cll 9.1 and 11 of the DCP were critical to the appeal: "[a]t the hearing, the main issue related to the size and width of the proposed lots, which do not comply with the numerical requirements of council's Subdivision Development Control Plan." Therefore, the Commissioner was duty bound to make such preliminary findings in relation to the application of cl 11 within the process of arriving at his ultimate decision: Mifsud, Ligon (No. 1). 26 My findings that the Commissioner properly considered and construed cll 9.1 and 11 of the DCP illustrates that the Commissioner accepted the existence of "exceptional circumstances" as a pre-condition to considering a variation of the controls imposed by cl 9.1. Further, in par [8] of his decision, the Commissioner states that he considered all the evidence led and submissions made in the ultimate determination of the appeal. This clearly included the submission in the statement of evidence provided by Mr Smyth. 27 I have previously described the considerations set out in pars [17] to [26] of the Commissioner's decision, such deliberation effectively resulting in findings that the present configuration (before subdivision) of the subject land was an exceptional circumstance. In particular, such remarks as "most of the other lots are not as large as the applicant's existing two lots…", that "each of the existing lots 29 and 30 is double the average size and width of these five lots" (see pars [19] and [20] of the decision), and that "every one of the many other semi- detached dwellings in Hughes Ave and Carinya St is already on its own separate title; there would appear to be no other pair of semi- detached dwellings in the locality that are not subdivided" (see par [25] of the decision), illustrate this conclusion. 28 Therefore, analysing the decision, without the use of a "fine-tooth comb", and avoiding "an overly critical or pernickety" approach, I find that the Commissioner did in fact "expose his train of thought", and in doing so, formed a view that exceptional circumstances had been established within the meaning of cl 11 of the DCP. Given such conclusion, the Commissioner has not erred in law.