Gary Abrams v The Council of the City of Sydney

Land and Environment Court (NSW)|2019-04-12|Before: Robson J

Nature of appeal and outcome

On 22 December 2017, Gary Abrams lodged development application D/2017/1809 ('DA') for the demolition of an existing commercial building and the construction of a new four-storey building containing 14 residential units at 9 Power Avenue, Alexandria ('site').
After the Council of the City of Sydney ('Council') was deemed to have refused the DA, Mr Abrams appealed to the Court on 15 February 2018. The appeal was heard by Commissioner Dickson on 13 and 14 November 2018 and, on 17 December 2018, the Commissioner delivered judgment dismissing the appeal: Abrams v The Council of the City of Sydney [2018] NSWLEC 1648 ('primary judgment').
On 19 December 2018, Mr Abrams commenced this appeal by way of summons pursuant to s 56A of the Land and Environment Court Act 1979 (NSW) ('Court Act') raising two purported errors of law in the primary judgment as follows: (1) The Commissioner erred at law in failing to provide reasons for dismissing the appeal, in particular by failing to explain how or in what manner or to what extent "the applicant's cl.4.6 written request does not satisfactorily demonstrate that there are sufficient environmental planning grounds to justify contravening the development standard" (at [83] of the primary judgment); and (2) The Commissioner erred at law in confining her assessment of the applicant's 'environmental planning grounds' (pursuant to clause 4.6(3)(b) of the Sydney Local Environmental Plan 2012) to only that part of the written clause 4.6 request so headed (at [82]-[83] of the primary judgment), rather than having regard to the totality of the written clause 4.6 variation request.

Background

The site is zoned B4 Mixed Use pursuant to the Sydney Local Environmental Plan 2012 ('SLEP') and currently contains a two-storey commercial building which occupies the entire site. While residential flat buildings are permitted with consent in the B4 Mixed Use zone, cl 4.4 of the SLEP provides a floor space ratio ('FSR') control of 1.5:1 (including a bonus 0.5:1 that is permissible under cl 6.14 for community infrastructure in Green Square).
Although a number of contentions had been raised by Council, prior to the primary hearing, as a result of expert witness conferencing and amended plans, the primary issue before the Commissioner (referred to in [6] of the primary judgment as "the only remaining issue") was whether Mr Abrams had demonstrated that he was entitled to the flexibility provided for under cl 4.6 of the SLEP to vary the FSR standard. While there had been a separate contention regarding variation of the maximum height standard under cl 4.6, this was ultimately not the subject of dispute before the Commissioner.

The Commissioner's decision

In the primary judgment at [7], the Commissioner summarised Council's reasons for opposing the proposed variation to the FSR control as follows: (1) the written request fails to establish that compliance with the FSR control is unreasonable or unnecessary; and (2) fails to establish that the proposal satisfies: objective (b) and objective (c) of 4.4 which require that development provide for an intensity of development that is commensurate with the capacity of the existing and planned infrastructure; and (3) that new development reflects the desired character of the locality in which it is located and minimises adverse impacts on the amenity of that locality.
At [9], the Commissioner summarised her ultimate finding as follows: Following a consideration of the evidence presented and the submissions of the parties, I find that the applicant's cl 4.6 written request, seeking a variation to the floor space ratio standard in the LEP 2012, does not satisfactorily demonstrate that there are sufficient environmental planning grounds to justify contravening the development standard. As a result the appeal is dismissed as the precondition is not met.
At [10]-[36], the Commissioner described the site and the locality, the planning and development controls of the site, including cl 4.6, and the public submissions. At [37]-[45], the Commissioner dealt with the parties' agreement regarding the written request (made pursuant to cl 4.6) for variation of the height standard in a manner that does not require comment in this appeal except to note that, at [45], she concluded: On the basis of the preceding I accept that each of these elements has been satisfied and the written request seeking a variation to the height standard should be upheld.
At [46], the Commissioner noted: In contrast to the height variation, the experts are not in agreement as to whether the FSR variation should be upheld by the Court.
At [48], the Commissioner recorded the arguments advanced by Council as to why the FSR variation should not be upheld as follows: (1) that the applicants reliance on the FSR breach approved at 117 Wyndham Street is not well founded on that basis that the original approval for that site complied with the FSR standard of 1.5:1 at the time of consent. (2) that the applicant's argument that a development of compliant FSR would be out of character with the context of the site is insufficient justification. Ms McGrath's evidence is: "I maintain the opinion that through redesign and further design investigation that a part three, part four storey building presenting to Power Avenue could be achieved to 'bookend' the street, similar to that proposed without increased GFA. An example would be through the use of voids above the third level to achieve a 4th storey appearance. Alternatively increasing the floor to floor height of the ground floor commercial tenancy to 4.5m in accordance with Section 4.2.12 of the Sydney DCP and/ or providing increased floor to ceiling heights at the residential level" (Exhibit 4). (3) absence of amenity impacts is not sufficient justification for exceeding a key development standard. (4) approval would set an undesirable precedent for other nearby sites. Ms McGrath argues that "such a precedent would result in an increased density beyond that envisaged for the area and prescribed in LEP 2012, therefore the proposal is not in the public interest." (Exhibit 4) (5) that the variation is inconsistent with objective (b) of the FSR standard which seeks to "regulate the density of development, built form and land use intensity and control the generation of vehicle and pedestrian traffic". Ms McGrath argues that: "The 77% exceedence (of) FSR and associated increased intensity of the use is not proportionate to that envisaged for the site of the surrounding area. The proposed development is at odds with the objective which seeks to strategically manage density." (Exhibit 3)
At [49], the Commissioner noted that the applicant's written request seeking to justify contravention of the development standard must adequately address both of the following: • that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case (cl 4.6(3)(a)); • that there are sufficient environmental planning grounds to justify contravening the development standard (cl 4.6(3)(b)).
At [50], the Commissioner acknowledged that the Court must form a positive opinion of satisfaction that the applicant's request adequately addresses the matters in cl 4.6(3).
At [51]-[55], the Commissioner referred to authority regarding the "common ways" an applicant might demonstrate that compliance with a development standard is unreasonable or unnecessary and, at [56]-[77], the Commissioner summarised the parties' submissions.
In relation to whether there were sufficient environmental planning grounds to justify contravening the development standard, the Commissioner noted, at [79]-[80]: In considering the Applicant's case in support of the variation, the focus is on the aspect of the development that contravenes the development standard, not the development as a whole (Initial Action at [24]). Therefore, the environmental planning grounds must be more than the benefits of carrying out the development as a whole: see Four2Five Pty Ltd v Ashfield Council [2015] NSWCA 248 at [15]. The Applicant argues that there are sufficient environmental planning grounds to justify the variation on the following grounds: "Assessment: The accompanying elevations and shadow diagrams demonstrate that there are no unreasonable overshadowing, view or privacy impacts to any dwellings surrounding the site. Updated solar analysis confirms that the dwellings to the south will continue to enjoy greater than required (i.e more than 2 hours solar access to living and private open space areas between 9 am and 3pm). Internally, 66% of the living and private open space areas achieve 2 hours solar access between 9am and 3pm whilst 100% of the units achieve 2 hours solar access when extending the period to 4pm. The proposed bulk and scale are less than that approved by Council on 2 occasions. Council were satisfied that there were no unreasonable external impacts associated with the density variation, as confirmed in the assessment of 2013 and 2015. The proposed internal and external amenity outcomes are consistent with that or better than that approved." (Exhibit C)
In the following four paragraphs, at [81]-[84], under the heading 'Findings', the Commissioner dismissed the appeal in the following terms: Pursuant to cl 4.6(4)(a)(i) the consent authority on appeal must not grant consent for development that contravenes a development standard unless it is satisfied that, the applicant's written request has adequately addressed the matters required to be demonstrated by subclause (3). One of those matters is cl 4.6(3)(b) that there are sufficient environmental planning grounds to justify contravening the development standard. I have considered the written request prepared by ABC Planning Pty Ltd in November 2018 seeking to vary the height standard [sic - FSR] (Exhibit C). In particular I have given consideration to the environmental grounds proposed in the request to justify the variation. Noting that these grounds are reproduced at paragraph [80]. I find that the applicant's cl 4.6 written request does not satisfactorily demonstrate that there are sufficient environmental planning grounds to justify contravening the development standard. Consequent to these findings there is no power to grant consent to the development application and the appeal must fail.

Ground 1

Mr Abrams submits that his appeal was dismissed solely on the basis that the Commissioner was not satisfied that the cl 4.6 request seeking a variation of the FSR standard in the SLEP "satisfactorily demonstrate[d] that there [were] sufficient environmental planning grounds to justify contravening the development standard" in circumstances where the Commissioner's reasons are confined to [82]-[83] of the primary judgment.
Mr Abrams cites authority for the proposition that a commissioner is obliged to give adequate reasons for their decision which must do justice to the issues posed so that the parties can identify the basis of the decisions, the extent to which the arguments advanced have been understood and accepted, and why one case is preferred over another.
Mr Abrams submits that an objective review of the Commissioner's findings at [81]-[84] of the primary judgment reveals a complete absence of any exposure of the reasons as to why she favoured Council's case over his case.
Mr Abrams further contends that as the Commissioner's decision rested exclusively on the issue relating to the FSR variation request, this was a principal contested issue and therefore required the Commissioner to articulate her reasons on that issue. Mr Abrams submits that the Commissioner made an error of law in failing to do so.
At the hearing on this appeal, Ms Duggan, on behalf of Mr Abrams, submitted that if she succeeded on the first ground of appeal, the second ground need not be determined: see Tcpt, 12 April 2019, p 1(36-37).

Ground 2

In relation to the second ground of appeal, Mr Abrams submits that the Commissioner's reference at [80] in the primary judgment to an extract of Exhibit C, being the 'Updated Clause 4.6 variation request FSR' prepared by ABC Planning Pty Ltd dated November 2018, did not account for the totality of the written cl 4.6 request on this issue and the evidence.
Mr Abrams submits that ignoring evidence critical to an issue in a case and contrary to an assertion of fact made by one party may promote a sense of grievance: Mifsud v Campbell (1991) 21 NSWLR 725 at 728. The Commissioner's failure to refer to all of the environmental planning grounds provided for in the updated cl 4.6 request in her determination of that issue, being the sole issue on which the Commissioner refused the appeal, amounts to an error of law.

Orders sought

For the reasons stated above, Mr Abrams submits that the appeal should be upheld, that orders (3) and (4) in the primary judgment should be set aside and that Council pay his costs. For convenience, orders (3) and (4) in the primary judgment are reproduced: (3) The appeal is dismissed; (4) Development Application No. D/2017/1809 for demolition of the existing commercial building on the site and construction of a new four storey residential flat building containing 14 units and associated bicycle parking and waste storage is refused;
Given that no new findings of fact are necessary for the Court to grant development consent, and there is no issue concerning the merits of the DA in this case, pursuant to s 56A(2)(b) of the Court Act, Mr Abrams submits that the Court would approve the DA. Alternatively, he submits that the matter would be remitted to the Commissioner to be dealt with according to law. However, as the latter requires the Commissioner to change her mind about opinions and conclusions expressed by Mr Abrams' experts and in the updated cl 4.6 request with which she has already disagreed, an exclusionary remitter order is appropriate: Preferred Projects (Buildings) Pty Ltd v Warringah Council [1999] NSWLEC 283; (1999) 106 LGERA 144 ('Preferred Projects') at [24].

Ground 1

Council relies upon various authorities and submits that the scope of the reasons required depends upon the particular matter and the particular circumstances of the case.
Council cites the requirements for adequate reasons espoused by Meagher JA in Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430 ('Beale') at 443 and submits that the Commissioner referred to the relevant evidence, that being the cl 4.6 request, and made a sufficient factual finding in relation to it.
Council submits that in the context of a Class 1 merit appeal, the Commissioner was bound to determine the appeal by addressing the principal contested issues. As the experts agreed that the written request seeking a variation to the height standard should be upheld, the Commissioner identified that the remaining contentions related to whether the proposed variation to the FSR control was supportable. She then determined the sufficiency of the cl 4.6 objections for both the height standard and the FSR. While the former was no longer contentious, the Commissioner was bound to consider it prior to exercising her jurisdiction to grant consent. The Commissioner then assessed the cl 4.6 request in respect of the FSR standard. It could not be argued that that she failed to determine the principal contested issue. Rather, the question is whether the underlying reasoning on that issue was adequately disclosed.
Looked at as a whole, Council submits that the Commissioner's reasons were "quite extensive" and contained a summary of the evidence and submissions made in relation to both cl 4.6 requests. This is so despite the absence of a requirement that reasons be elaborate.
Council submits that the Commissioner referred to the relevant evidence on the principal issue, being the FSR standard and the cl 4.6 objection, at [46]-[47], [54]-[55] and [80] of the primary judgment. Despite the fact that the Commissioner was under no obligation to recite the evidence in as much detail as she did, Council submits that she set out relevant parts of the cl 4.6 objection verbatim. Council submits (presumably in relation to both grounds of the appeal) that it was evident from [82] in the primary judgment that the Commissioner had regard to the document in its entirety.
Given the emphasis added at [81] in the primary judgment, Council submits that the Commissioner was cognisant of the principle that, in circumstances concerning whether a request under cl 4.6 should be upheld, the applicant bears the onus of establishing that the request has adequately addressed the matters required to be addressed by cl 4.6(3)(a)-(b): Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118 ('Initial Action') at [25]. In determining whether or not there were sufficient environmental planning grounds advanced by Mr Abrams to justify a departure from the development standard, Council submits that it was sufficient for the Commissioner to refer to the written request and to determine whether the reasons offered were adequate.
As Mr Abrams' environmental planning grounds were incorporated in the primary judgment at [80], Council submits that any insufficiency in reasons stems from Mr Abrams, as he bore the onus of showing that there were sufficient environmental planning grounds to justify a variation to the standard. Council cites Mahoney JA in Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 ('Soulemezis') at 271 to demonstrate that the law does not necessitate that a judge make an express finding in respect of every fact leading to, or relevant to, his final conclusion of fact.
Rather than confining the Commissioner's reasons to [83] in the primary judgment, Council submits that the judgment should be read as a whole. Importantly, at [9] in the primary judgment, the Commissioner explicitly referred to the evidence, the submissions of the parties and the cl 4.6 request. Council submits that the Commissioner was not persuaded that the development reflected the desired character of the locality or minimised adverse impacts on the locality, particularly in terms of overshadowing.
Council submits that the way the first ground of appeal has been framed demonstrates that the issue is not so much that there was a lack of sufficient reasons, but rather that Mr Abrams seeks a more detailed explanation as to why his cl 4.6 request was denied.
The reason for the decision was that the Commissioner was not persuaded by Mr Abrams' environmental planning grounds. Council contends that the Commissioner was under no obligation to explain how or in what manner the environmental grounds in Mr Abrams' request were not to her satisfaction.
Considered as a whole, Council submits that the Commissioner did give sufficient, albeit brief reasons for her decision on the principal contested issue in the primary judgment. The decision is not so devoid of reasoning as to constitute an error of law.

Ground 2

Council submits that the mere fact that the Commissioner only cited part of Mr Abrams' cl 4.6 written request at [80] in the primary judgment does not mean that she did not have regard to the request as a whole. This is particularly so given that the Commissioner explicitly stated that she had regard to the written request at [9], [82] and [83] in the primary judgment.
Council submits that it was not necessary to recite the evidence in detail, consistent with the second principle in Beale at 443 (referenced at [46] below), that the requirement to give reasons should be measured against the burden that it imposes, and that a "fine-tooth comb" approach should not be employed when assessing the Commissioner's decision.
In response to Mr Abrams' contention that the Commissioner failed to refer to all of the environmental planning grounds at [80] in the primary judgment, Council submits that it was not unreasonable for the Commissioner to assume that the grounds advanced were those which appeared under the appropriate heading in the cl 4.6 request. It does not necessarily follow that the Commissioner did not have regard to the whole of the request, but given that Mr Abrams' town planner carefully split the request into the enumerated parts of cl 4.6, Council submits that Mr Abrams cannot now complain of a failure to consider other parts of the request.

Orders Sought

If the Court upholds the appeal, Council submits that Mr Abrams' contention that no new findings of fact are required for the Court to grant development consent is unsustainable in the context of a jurisdictional requirement such as cl 4.6 as it would be necessary to first determine whether the cl 4.6 request should be upheld before consent could be granted. This involves a fresh determination of that jurisdictional fact. This may not require an entirely new hearing given that in appropriate cases an appeal court may determine the matter: Beale at 444.
Council submits that while the Court could exercise that power on appeal pursuant to s 56A(2)(b) of the Court Act, this would require consideration of the cl 4.6 request and the plans. It would also require the Court to hear submissions regarding the jurisdictional issue. Council submits that such a course is not appropriate in the context of this appeal.
If the Court decides not to consider the request itself pursuant to s 56A(2)(b) of the Court Act, Council submits that an exclusionary remitter order is not appropriate. Council distinguishes this case from Preferred Projects as in that case, the Commissioner had expressed an opinion about the merits. In this case, the Commissioner only determined a question of jurisdictional fact. Council cites Tobias JA in Baulkham Hills Shire Council v Basemount Pty Ltd [2003] NSWCA 189; (2003) 126 LGERA 339 at [23] to demonstrate that not every case where an appeal is upheld warrants the making of an exclusionary remitter order. Council contends that the mere fact that the Commissioner may come to the same conclusion if the case were remitted to her is not, of itself, sufficient to warrant an exclusionary order.

Ground 1

The duty to give reasons is well established and has been considered in a number of cases by various courts. A judge is not required to make an explicit finding on each disputed piece of evidence. It will be sufficient if the inference as to what is found is appropriately clear: Housing Commission (NSW) v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 ('Tatmar') at 385.
While there has been commentary over the years in relation to the jurisdiction and functions of commissioners and the conduct of Class 1 proceedings (see Brimbella Pty Ltd v Mosman Municipal Council (1985) 79 LGERA 367 ('Brimbella') at 368, Ku-ring-gai Council v Bunnings Properties Pty Ltd [2019] NSWCA 28 at [39]-[45] (per Basten JA), [142]-[162] (per Preston CJ of LEC) and Al Maha Pty Ltd v Huajun Investments Pty Ltd [2018] NSWCA 245; (2018) 233 LGERA 170 ('Al Maha') at [25]-[26] (per Basten JA), [199]-[202] (per Preston J)), I consider the duty of a judge to give reasons (and therefore the principles stated below) is similar to that of a commissioner.
In Pollard v RRR Corp Pty Ltd [2009] NSWCA 110 ('Pollard'), at [58]-[59], McColl JA provided a useful summary of a judge's duty to give reasons as follows (citations omitted): The extent and content of reasons will depend upon the particular case under consideration and the matters in issue. While a judge is not obliged to spell out every detail of the process of reasoning to a finding, it is essential to expose the reasons for resolving a point critical to the contest between the parties. …Discharge of this obligation is necessary to enable the parties to identify the basis of the judge's decision and the extent to which their arguments had been understood and accepted…it is necessary that the primary judge "'enter into' the issues canvassed and explain why one case is preferred over another".
The principles underpinning the giving of reasons, adapted for present purposes, were earlier espoused in Beale at 433 as follows: first, reasons need not be lengthy or elaborate; secondly, a judge should refer to the relevant evidence, and while they are not required to refer to the evidence in detail, where conflicting evidence of a significant nature is given, both sets of evidence should be referred to; thirdly, where one set of evidence is accepted over another, the judge should set out findings as to how they came to favour one over the other, however this does not require an explicit finding on each disputed piece of evidence, particularly if the inference as to what is found is sufficiently clear; and finally, a judge should provide reasons for making the relevant findings of fact (and conclusions) and reasons in applying the law to the facts found.
Further, in Beale, at 442, Meagher JA found that just as the requirement to give reasons depends on the particular matter, the content of the reasons depends on the particular circumstances of the matter being considered. At 443, his Honour noted that the scope of the reasons relates to the function served by the giving of reasons and is not amenable to mechanical formulation, meaning that the content of the obligation differs depending on the decision in question.
In Segal v Waverley Council (2005) 64 NSWLR 177; [2005] NSWCA 310 ('Segal'), Tobias JA, at [93], also provided a useful summary of the authorities in relation to the general duty to give reasons as follows (citations omitted): In my opinion, it follows that the statements in the authorities to which I have referred above to the effect that the judge must enter into the issues canvassed before him or her and explain why he or she prefers one case over the other, or that for a judge to ignore evidence critical to an issue in a case contrary to an assertion of fact made by one party may promote a sense of grievance in the adversary, or that it is the duty of a judge to expose his or her reasons for his or her decision where a point is vital and where its resolution is crucial to the contest between the parties, need to be read in context and are not, in my opinion, authority for the proposition that every argument or issue advanced by a party in support of the principal issues must be considered by the judge and reasons given for accepting or rejecting it. A judge's duty to give reasons is, in my opinion, confined to the essential ground or grounds upon which the decision rests and does not include a requirement to deal with a submission or argument that is otherwise unnecessary to the decision arrived at provided that, in respect of that decision, the judge's reasoning process is articulated and relevant findings made.
Accepting as I do that the above principles apply to commissioners, it could be argued that all that was required of the Commissioner was for her to state her finding (i.e. that the cl 4.6 request did not satisfactorily demonstrate that there were sufficient environmental planning grounds to justify contravening the development standard) and reasoning process (which could merely be that she considered the written request prepared by ABC Planning Pty Ltd and considered the environmental grounds proposed in the request to justify the variation). However, this entails consideration of the words "reasoning process" which I consider requires the Commissioner to articulate the rationale underlying her final decision. This was not done.
While I accept the cautionary note in Brimbella at 368 that "it is undesirable in an appeal from a lay tribunal, where the appeal court is confined to a question of law, that it should examine too narrowly the words used in the decision, at least unless these words are central to the decision involved…" and that "…the parliament has specifically envisaged a tribunal which included lay assessors. It would be quite wrong, in my opinion, for this Court to examine their decisions as if they were written by a lawyer", I note that the aforementioned analysis in Pollard was referenced in The Village McEvoy Pty Ltd v Council of the City of Sydney (No 2) [2010] NSWLEC 17; (2010) 176 LGERA 119 ('The Village McEvoy') at [26] in relation to a commissioner's duty to give reasons.
The adequacy of reasons (or indeed explanation) needs to be assessed having regard to the nature of the appeal available, noting that a rationale for requiring adequate reasons is to facilitate the losing party's right of appeal (Soulemezis at 259), and noting that rights of appeal differ: Council of the City of Sydney v Vision Land Glebe Pty Ltd [2019] NSWLEC 60 ('Vision Land Glebe') at [67]. In appeals under s 56A of the Court Act, a party's right of appeal is limited to questions of law (as opposed to an appeal on all grounds, including in relation to findings of fact).
While a commissioner must give adequate reasons for their decision, this does not require that every argument advanced by a party must be considered by the Commissioner, nor does it require reasons to be given for accepting or rejecting it: Segal at [93]. However, the Commissioner must refer to evidence that is important to the determination of the principal issues in the case: Segal at [44]-[45], [62], [92], [99], The Village McEvoy at [26]. The Commissioner's reasons must be read as a whole and considered reasonably and a "verbal slip or infelicity of expression does not necessarily warrant drawing an inference of an error of law": Council of the City of Sydney v Base Backpackers Pty Ltd [2015] NSWLEC 63 at [57].
Even if it were the case, as Council submits, that this is not a case where there was a failure to give reasons on the principal issue but a challenge that the reasons were inadequate at law (which I do not accept), the question would involve "whether the reasons provided have reached a minimum acceptable level to constitute a proper exercise of judicial power" (Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33 at [48], Vision Land Glebe at [58]), accepting that the extent and content of the reasons "would depend upon the particular case under consideration and the matters in issue": Pollard at [58]. I do not consider that quoting the parties' submissions and extracts from the cl 4.6 written request is sufficient to reach this "minimum acceptable level".
While a commissioner's reasons need not be lengthy or elaborate, there is a common law duty to give reasons on principal contested issues. This is particularly so in circumstances where the Commissioner's decision is taken to be an order of the Court and involves consideration of prerequisites to the exercise of a power, being whether or not to grant development consent to a development application in this case: Al Maha at [26].
It is clear that the sufficiency of the FSR variation request was a principal contested issue before the Commissioner, particularly because it was the only remaining issue in circumstances where the parties were in agreement in relation to the height standard variation request. Despite summarising the evidence and the parties' submissions, the Commissioner made no (separate) finding in relation to whether compliance with the development standard was unreasonable or unnecessary before dealing with the second matter in cl 4.6(3), being whether there were sufficient environmental planning grounds to justify contravening the development standard.
In all the circumstances, I do not find that the Commissioner gave sufficient reasons (let alone "quite extensive" reasons as submitted by Council) as to why she found that Mr Abrams' cl 4.6 written request seeking to vary the FSR standard did not satisfactorily demonstrate that there were sufficient environmental planning grounds to justify contravention of the development standard.
As stated in Segal, at [99], the Commissioner's reasons on this issue had to be "adequate to explain, by way of findings and reference to the evidence supporting the findings, the reasoning process adopted by the Commissioner or judge and which has led to his or her conclusion". While it is clear that the Commissioner set out the relevant test in cl 4.6(4)(a)(i) (at [81] of the primary judgment), stated that she considered the evidence and the submissions of the parties (at [9]) and the written request (at [82]), referenced and incorporated the environmental planning grounds proposed in the written request (at [80] and [82]), I do not find that the text of her judgment discloses the reasoning process she adopted which led to her conclusion. A restatement of Mr Abrams' submissions and the relevant section of the cl 4.6 request without any analysis or articulation of the rationale which led to the final decision does not meet this threshold.
In Al Maha, at [21]-[22], Basten JA discussed two possible formulations of cl 4.6(4)(a)(i) as follows: On a literal reading, subcl (4)(a)(i) merely required that [the Commissioner] be satisfied that the applicant had taken two steps, namely, that it had, first, made a written request to be excused compliance with the development standard and, secondly, "adequately addressed" the matters set out in subcl (3). On that (narrow) reading, the Commissioner did not need to form any view herself about the justification for failing to comply with the development standard. The alternative reading is that the matters would not be "adequately" addressed unless they in fact justified the non-conformity. In other words, the Commissioner had to be satisfied that there were proper planning grounds to warrant the grant of consent, and that the contravention was justified.
While it was not necessary to resolve the construction of cl 4.6(4)(a)(i) in that case, at [23], his Honour expressed a preference for the "alternative reading" for several reasons (footnotes omitted): …First, in its terms, it gives work to the evaluative requirement implicit in the need to be satisfied that certain matters have been "adequately" addressed. Secondly, this is not a gateway provision prior to public consultation or further assessment; it is a criterion for the ultimate grant of consent. Thirdly, the narrow approach fails to give separate work to subcll (3) and (4). Thus, subcl (3) requires the consent authority to have "considered" the written request and identifies the necessary evaluative elements to be satisfied. That is, to comply with subcl (3), the request must demonstrate that compliance with the development standard is "unreasonable or unnecessary" and that "there are sufficient environmental planning grounds to justify" the contravention. It would give no work to subcl (4) to simply require the Commissioner to be satisfied that the demonstration required under subcl (3) had occurred. The additional step is that the request satisfied the Commissioner that it should be granted.
This analysis was implicitly adopted by Preston J in Baron Corporation Pty Limited v Council of the City of Sydney [2019] NSWLEC 61 ('Baron'), at [80], as he states: To recognise that a consent authority might need to form its own view about whether the matters in cl 4.6(3) have been achieved, in order to discharge its responsibility to determine whether it is satisfied that the applicant's written request has adequately addressed the matters required to be demonstrated by cl 4.6(3), is not to apply the wrong test. The test remains that set by the terms of cl 4.6(4)(a)(i). It simply recognises that application of that test might involve the consent authority forming its own view about the matters in cl 4.6(3). I read Basten JA's remarks in Al Maha Pty Ltd v Huajun Investments Pty Ltd (2018) 233 LGERA 170; [2018] NSWCA 245 at [21]-[23] as making a similar point.
Accordingly, I note that while the Commissioner was not obligated to express an opinion in relation to the matters required to be demonstrated by cl 4.6(3), it would not have been an error for her to have done so provided this was done to consider Mr Abrams' request under cl 4.6(3) and determine whether she was satisfied under cl 4.6(4)(a)(i) that his request adequately addressed the matters required to be demonstrated by cl 4.6(3): Baron at [75]. Such a course may have provided some clarity as to why the Commissioner reached the decision that she did.
In Initial Action, at [23], Preston J acknowledged that the adjectival phrase "environmental planning grounds" is not defined, but would refer to grounds that relate to the subject matter, scope, purpose and objects of the Environmental Planning and Assessment Act 1979 (NSW) ('EPA Act'). The Commissioner was required, albeit briefly, to indicate how she satisfied herself in those regards. Put simply, it is unclear from the Commissioner's judgment why she was not satisfied that the environmental planning grounds advanced by Mr Abrams adequately addressed the subject matter, scope, purpose and objects of the EPA Act.
The Commissioner has not explicitly adopted either of the parties' submissions in relation to the request seeking to vary the FSR standard so the facts are somewhat distinguishable from cases such as Tatmar. Nevertheless, the essential question can be drawn from the judgment in Tatmar and relates to whether the Commissioner's reasons can be inferred (with clarity) from her judgment read as a whole. I consider that the judgment read as a whole does not, even inferentially, indicate with clarity the Commissioner's reasons as to why the applicant's cl 4.6 request did not satisfactorily demonstrate that there were sufficient environmental planning grounds to justify contravening the development standard: Tatmar at 385.
Council draws parallels between this case and Randwick City Council v Micaul Holdings Pty Ltd [2016] NSWLEC 7; (2016) 225 LGERA 94 ('Micaul') at [33], [37] where Preston J held that where a commissioner had regard to the evidence and in particular the written objections prepared, the Commissioner's reasons were adequate. The Commissioner did not, either directly or impliedly, adopt the reasons in Mr Abrams' cl 4.6 request as her reasons as per Micaul at [19]. Indeed, the Commissioner could not have adopted Mr Abrams' reasons by quoting the written request given that she dismissed the appeal and found in Council's favour.
In Beale, at 444, Meagher JA stated that just because the reasons given for a decision are inadequate, it does not necessarily follow that an appealable error has occurred, and that intervention by an appeal court is only required where no reasons have been given in circumstances where there was an obligation to provide them and where a statement of reasons is so deficient that it constitutes a miscarriage of justice. Given my finding that the Commissioner has not provided reasons for her decision in circumstances where there was an obligation to do so, I consider that an appealable error has occurred.

Ground 2

As I have found in favour of Mr Abrams in relation to the first ground in this appeal, and despite the oral submissions of Ms Duggan to the effect that if the appellant enjoyed success on the first ground, then the second ground did not require consideration, for completeness I note the following.
The second ground is that the Commissioner erred in law by confining her assessment of Mr Abrams' environmental planning grounds to only that part of the cl 4.6 request so headed (noting that this part of the written request was reproduced at [80] in the judgment). In response, Council submits that that fact alone cannot lead to the conclusion that the Commissioner did not have regard to the whole of the written request. As referred to above, Council points to the fact that the Commissioner stated that she had regard to the written request at [9], [82] and [83] in her judgment. Further, Council submits that, in any event, it was not necessary for the Commissioner to recite the evidence in detail, relying upon the comments of Meagher JA in Beale at 444.
Although a finding on this point is not determinative of this appeal, I am not satisfied that the Commissioner's comments at [80] and [82] necessarily indicated that she did not have regard to the whole of the written request. I note that, at [82], the Commissioner explicitly stated that she "considered the written request prepared by ABC Planning Pty Ltd". While she may have given particular consideration to the environmental grounds under that part of the request so headed, that does not negate the fact that she considered the request in its entirety. Accordingly, I am not satisfied that the Commissioner did not have regard to the whole of the cl 4.6 written request.

Consequences

While it is possible for the Court in a s 56A appeal to exercise its power to grant development consent pursuant to s 56A(2)(b) of the Court Act, as Mr Abrams seeks, it would require the Court to embark upon a consideration of the cl 4.6 request and the plans and receive submissions at least in relation to the jurisdictional issue about which this appeal is concerned. For that reason, I do not consider this to be an appropriate course in the context of this appeal.

Remitter

In the alternative, Mr Abrams seeks an exclusionary remitter order. That is, that the matter be remitted to a commissioner other than Commissioner Dickson to be determined in accordance with law as he submits that there is a reasonable apprehension that Commissioner Dickson will not decide the matter impartially in the sense that she would be required to change her mind about opinions and conclusions which she has already formed.
Council submits that where an error of law is limited to a failure to give reasons, it is appropriate for the matter to be remitted to the Commissioner so she can be given the opportunity to give full reasons.
I do not consider that there is a reasonable apprehension that the Commissioner will not decide the case impartially should it be remitted to her. While there may be situations where previous decisions of a judicial officer or commissioner may generate an expectation that they are likely to decide issues adversely to one of the parties, this does not mean that the outstanding issues would be considered other than with an impartial and unprejudiced mind. Further, there are other types of error where an exclusionary remitter order may be appropriate, such as where proceedings have been conducted in such a way as to give rise to a reasonable apprehension of bias, or where there has been a denial of procedural fairness in the determination of proceedings below. In the circumstances of this case, I do not consider that there is a reasonable apprehension that Commissioner Dickson will not bring an impartial mind to the resolution of the matter.
Where the sole reason for seeking an exclusionary remitter order is the failure to articulate with appropriate specificity the reasons for a discrete finding, I do not consider the facts of this case to be similar to Preferred Projects, as submitted by Council. In the circumstances, having regard to the error made by the Commissioner, and for the reasons stated above, I do not consider that it is appropriate to make an exclusionary remitter order.

Orders

The orders of the Court are: 1. The appeal is upheld. 2. Orders (3) and (4) made by Commissioner Dickson are set aside. 3. The proceedings are remitted to Commissioner Dickson to be determined in accordance with these reasons for judgment. 4. The respondent is to pay the appellant's costs of the appeal.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 03 June 2019

(2018) 233 LGERA 170

(2003) 126 LGERA 339

(1999) 106 LGERA 144

(2010) 176 LGERA 119

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