GJE & GKA v Inner West Council

NCAT Administrative and Equal Opportunity|2024-07-24

Introduction

GJE has multiple sclerosis (MS). She and her husband, GKA, submitted a development application (DA) to the respondent - their local government council - seeking approval for renovations to their home. GJE and GKA contend that the renovations were intended to accommodate GJE's disability.
GJE and GKA lodged the application on 22 December 2021. The respondent refused the application by decision dated 22 July 2022. GJE and GKA appealed this decision to the Land and Environment Court in August 2022. There was a conciliation conference in December 2022 and on 2 December 2022 the Land and Environment Court made consent orders upholding the appeal and granting consent to the DA subject to certain conditions.
On 19 June 2023, GJE and GKA lodged a complaint with the respondent in relation to concerns about how their DA was processed and decided. They alleged disability discrimination under the Anti-Discrimination Act 1977 (NSW) (ADA) and a breach of privacy. The complaint was investigated by the respondent's general counsel and GJE and GKA were advised of the outcome by letter dated 11 October 2023. In brief, the respondent concluded that there was no breach of privacy and no unlawful discrimination.
GJE and GKA also lodged a complaint with the NSW Anti-Discrimination Board (ADB) on 20 July 2023. The President identified the grounds of the complaint as disability discrimination in relation to goods and services under ss 49A-49C, 49M and 53 of the ADA. The period of the complaint is 12 May to 2 December 2022 and the complaint is summarised by the President to the effect that GJE has MS, a DA was submitted seeking to accommodate GJE's disability and the respondent refused the application and did not follow their disability inclusion plan. On 15 September 2023, the respondent provided a response to the complaint, denying discrimination. The respondent contended the complaint was not substantiated and that the respondent, and its employees, complied with statutory requirements in relation to the consideration of the DA. On 21 December 2023, GJE and GKA requested that the complaint be referred to the Tribunal.

Statutory framework

The ADA renders unlawful discrimination on certain grounds and in certain circumstances.
Section 4A provides: 4A Act done because of unlawful discrimination and for other reasons If-- (a) an act is done for 2 or more reasons, and (b) one of the reasons consists of unlawful discrimination under this Act against a person (whether or not it is the dominant or a substantial reason for doing the act), then, for the purposes of this Act, the act is taken to be done for that reason.
Part 4A deals with discrimination on the ground of disability.
Section 49A provides that disability includes past, future and presumed disability. Section 49B sets out what constitutes discrimination on the ground of disability and provides: 1) A person ("the perpetrator") discriminates against another person ("the aggrieved person") on the ground of disability if the perpetrator-- (a) on the ground of the aggrieved person's disability or the disability of a relative or associate of the aggrieved person, treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person who does not have that disability or who does not have such a relative or associate who has that disability, or (b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons who do not have that disability, or who do not have a relative or associate who has that disability, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply. (2) For the purposes of subsection (1) (a), something is done on the ground of a person's disability if it is done on the ground of the person's disability, a characteristic that appertains generally to persons who have that disability or a characteristic that is generally imputed to persons who have that disability. (3) For the purposes of, but without limiting, this section, the fact that a person who has a disability of or relating to vision, hearing or mobility has, or may be accompanied by, a dog which assists the person in respect of that disability, is taken to be a characteristic that appertains generally to persons who have that disability, but nothing in this Act affects the liability of any such person for any injury, loss or damage caused by the dog. (3A) For the purposes of, but without limiting, this section, the fact that a person who has a disability-- (a) is accompanied by, or possesses, a palliative or therapeutic device, or other mechanical equipment, that provides assistance to the person to alleviate the effect of the disability, or (b) is accompanied by an interpreter, a reader, an assistant, or a carer, who provides interpretive, reading or other services to the person because of the disability, or because of any matter related to that fact, is taken to be a characteristic that appertains generally to persons who have that disability. (4) A reference in this section to persons who have a disability ("the particular disability") is a reference to persons who have the particular disability or who have a disability that is substantially the same as the particular disability.
Section 49C sets out what constitutes "unjustifiable hardship" for the purposes of Part 4A and provides: In determining what constitutes unjustifiable hardship for the purposes of this Part, all relevant circumstances of the particular case are to be taken into account including-- (a) the nature of the benefit or detriment likely to accrue or be suffered by any persons concerned, and (b) the effect of the disability of a person concerned, and (c) the financial circumstances and the estimated amount of expenditure required to be made by the person claiming unjustifiable hardship.
Section 49M provides that it is unlawful to discriminate in respect of the provision of goods or services as follows: (1) It is unlawful for a person who provides, for payment or not, goods or services to discriminate against a person on the ground of disability-- (a) by refusing to provide the person with those goods or services, or (b) in the terms on which he or she provides the person with those goods or services. (2) Nothing in this section renders it unlawful to discriminate against a person on the ground of the person's disability if the provision of the goods or services would impose unjustifiable hardship on the person who provides the goods or services.
Section 49T sets out what constitutes discrimination on the grounds of responsibility as a carer and provides that there is unlawful discrimination if the perpetrator treats the aggrieved person with caring responsibilities less favourably than in the same circumstances, or in circumstances which are not materially different, that the perpetrator treats or would treat a person who does not have those responsibilities. It is also unlawful discrimination if the perpetrator requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons who do not have such responsibilities comply or are able to comply, being a requirement that is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply.
Section 53 provides for liability of principals and employers for acts done by agents or employees, unless the principal or employer took all reasonable steps to prevent the agent or employee from contravening the ADA.
Section 4 is the definition section and defines the terms "disability", "services" and "relative". Disability means: (a) total or partial loss of a person's bodily or mental functions or of a part of a person's body, or (b) the presence in a person's body of organisms causing or capable of causing disease or illness, or (c) the malfunction, malformation or disfigurement of a part of a person's body, or (d) a disorder or malfunction that results in a person learning differently from a person without the disorder or malfunction, or (e) a disorder, illness or disease that affects a person's thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour.
Section 4 provides that a "relative" of a person means any person to whom the person is related by blood, marriage, affinity or adoption, or the de facto partner of the person.
There is no dispute that GJE has a disability and that GKA is a relative of GJE for the purposes on the complaint made.
The term "services" is defined in s 4 as follows: "services" includes-- (a) services relating to banking, insurance and the provision of grants, loans, credit or finance, (b) services relating to entertainment, recreation or refreshment, (c) services relating to transport or travel, (d) services of any profession or trade, (e) services provided by a council or public authority, (f) services consisting of access to, and the use of any facilities in, any place or vehicle that the public or a section of the public is entitled or allowed to enter or use, for payment or not.
Section 54 relates to acts done under statutory authority and provides: (1) Nothing in this Act renders unlawful anything done by a person if it was necessary for the person to do it in order to comply with a requirement of-- (a) any other Act, whether passed before or after this Act, (b) any regulation, ordinance, by-law, rule or other instrument made under any such other Act, (c) an order of the Tribunal, (d) an order of any court, not including an order or award of a court or Tribunal having power to fix minimum wages and other terms and conditions of employment
Section 90 of the ADA provides that the President is to investigate each complaint that has been accepted under s 89B, which may be amended pursuant to s 91C. There are various provisions of the ADA, including sections 93A, 93B and 93C, which set out circumstances when the President must, or may, refer the complaint to the Tribunal. Section 103 provides that the Tribunal may, on the application of a party to a complaint or on its own motion, at any stage in proceedings relating to the complaint, amend the complaint. A complaint may be amended to include additional complaints and anything else that was not included in the complaint as investigated by the President.
The powers of the Tribunal in dealing with a complaint are set out in s 108, which relevantly provides as follows: (1) In proceedings relating to a complaint, the Tribunal may-- (a) dismiss the complaint in whole or in part, or (b) find the complaint substantiated in whole or in part. (2) If the Tribunal finds the complaint substantiated in whole or in part, it may do any one or more of the following-- (a) except in respect of a matter referred to the Tribunal under section 95 (2), order the respondent to pay the complainant damages not exceeding $100,000 by way of compensation for any loss or damage suffered by reason of the respondent's conduct, (b) make an order enjoining the respondent from continuing or repeating any conduct rendered unlawful by this Act or the regulations, (c) except in respect of a representative complaint or a matter referred to the Tribunal under section 95 (2), order the respondent to perform any reasonable act or course of conduct to redress any loss or damage suffered by the complainant, (d) order the respondent to publish an apology or a retraction (or both) in respect of the matter the subject of the complaint and, as part of the order, give directions concerning the time, form, extent and manner of publication of the apology or retraction (or both), (e) in respect of a vilification complaint, order the respondent to develop and implement a program or policy aimed at eliminating unlawful discrimination, (f) make an order declaring void in whole or in part and either ab initio or from such time as is specified in the order any contract or agreement made in contravention of this Act or the regulations, (g) decline to take any further action in the matter.
Section 116 provides: This Division applies in addition to the provisions of the Administrative Decisions Review Act 1997 and the Civil and Administrative Tribunal Act 2013 but prevails over those provisions to the extent of any inconsistency.
While the ADA does not expressly refer to 'direct' and 'indirect' discrimination, s 49B makes the distinction within subs (1).
Section 49B(1)(a) sets out the grounds for discrimination where the perpetrator discriminates against the aggrieved person on the ground of disability if the perpetrator treats the aggrieved person less favourably than, in the same circumstances, or in circumstances which are not materially different, that the perpetrator treats or would treat a person who does not have the disability. This requires something to be done on the grounds of the person's disability or a characteristic that appertains generally to a person who has that disability and involves direct discrimination. There must be a causal link between the less favourable treatment and the disability. In other words, the disability must explain or partly explain the treatment or conduct of the perpetrator which resulted in the less favourable treatment. This is a question of fact.
As observed in Discrimination Law and Practice (Ronalds and Raper, 2019 at p 37-38) the test for direct discrimination requires a comparison with the person without the particular disability but otherwise in the same position in all material respects as the complainant. There are two questions. The first question is how, in the particular circumstances of the complainant, would the alleged perpetrator have treated a person without the particular disability. Second, if the treatment was less favourable than the treatment given to a person without the disability, the issue then becomes whether this was because of the disability or whether it was for some other reason. The comparator can be a real or hypothetical person but ultimately the assessment must be objective based on all the material available.
In contrast, s 49B(1)(b) provides that requiring an aggrieved person to comply with a condition or requirement with which a substantially higher proportion of persons who do not have that disability comply or are able to comply, being a requirement which is not reasonable, is unlawful discrimination. This is indirect discrimination and often involves consideration of the impact of policies and practices which, on their face, appear to operate in a neutral or non-discriminatory manner but which have a disproportionately detrimental impact on the person with a disability, which is unreasonable.
It is necessary to first identify the requirement or condition and then to identify the pool or base group with which the person seeks to compare themselves. As observed by Dawson J in Australian Iron & Steel v Banovic [1989] HCA 56; (1989) 68 CLR 165 (at [17]) a proportion "must be a proportion of something, so that it is necessary to determine the appropriate grouping or pool within which to calculate the proportions which are to be compared". This may be a complicated issue. It is not merely a numerical comparison. For instance, if the pool is too broad then the inclusion of members of the population who do not have the relevant attribute or characteristic is likely to mask the consequences of the application of the requirement or condition on those who have the relevant attribute or characteristic. The challenge is to select a comparator pool which is equal in all or most respects save for the relevant attribute or characteristic - in this case, mobility disability.
According to Deane and Gaudron JJ, the base groups which are appropriate will vary according to the context in which the conditional requirement is imposed. The determination of the appropriate base group will ordinarily involve the making of findings of fact and a decision to select a particular base group will involve a question of law (at [14]-[18]).
The discrimination claimed necessarily raises issues about the operation of the planning laws in New South Wales. These laws are examined in more detail later in our reasons.

Points of claim

The following is a summary of the claims made by GJE and GKA in their points of claim.
GJE was diagnosed with MS in 2020 and GKA is her carer. They reside in Stanmore and are the registered owners of the property in which they reside. On 22 December 2021 they lodged a DA with the respondent seeking the approval of certain modifications to the residence. The reference to the DA number has not been included in these reasons as it may disclose the applicants' identity.
The DA proposed alterations and additions to the existing dwelling including an upper-level addition, landscaping and construction of a detached rear garage with a studio above.
GJE and GKA contend that the design of the additions was intended to accommodate their need to adapt their home for GJE's disability - in particular, to accommodate her anticipated future mobility and caring needs. The DA was refused because the respondent required the applicants to meet the conditions of the Marrickville Development Control Plan 2011 (MDCP 2011) and it is alleged that these are conditions with which a substantially higher proportion of persons who do not have GJE's disability, or who do not have a relative who has such disability, comply or could comply. It is also contended that the respondent imposed conditions and requirements for approval of the applicants' DA of a higher standard than, or more onerous than it would have, and has, imposed on persons with a similar DA who do not have a disability associated with MS. The applicants provide examples of DAs and delegated assessment reports as comparators.
It is contended that the respondent did not follow internal guidelines, including its own Disability Inclusion Action Plan 2017-2021 (DIAP).
The applicants also contend that the respondent had full knowledge of the nature and extent and prognosis of GJE's disability when it assessed the DA and had knowledge of the need to create a "universally designed home" to accommodate her disability and the requirements of GKA to care for her. The MDCP 2011, which deals with variations to development controls in the plan, acknowledges flexibility in the application of development controls where strict compliance with the controls is unreasonable or unnecessary. The very characteristics of GJE's disability means that strict compliance with a number of those controls was unachievable, unreasonable and unnecessary in regard to the following conditions: 1. Condition 12, Part 2.18 of the MDCP 2011 whereby the respondent refused to make adjustments from full numerical compliance of a minimum of 20% (or 53 sqm) of the site area for open space to allow the applicants circulation space for disability, despite the fact that the applicants' existing home on the site, in its current state, did not meet full numerical compliance; 2. Condition 22, Part 8.3.2.6 of the MDCP 2011 whereby the applicants requested to alter the original roof, where it was not visible to anyone, to create a "universally designed home" that could be further adapted and prepared to accommodate the installation of a lift in the future, which would directly address GJE's projected needs with regard to the nature of the dwelling.
After issues were raised by the respondent, including in a request for information dated 14 April 2022, the applicants met on several occasions with respondent's staff and presented numerous amended proposals. Each of these proposals was rejected and, in this regard, the respondent refused to make reasonable adjustments to these conditions that could not reasonably be complied with by reason of GJE's disability.
The respondent refused or wilfully neglected to apply the same planning merits to the applicants' DA which the respondent had applied to others who have, or had, applications that were not materially different to the applicants' DA, who did not themselves achieve full compliance with the conditions referenced above, and who did not have a disability.
In conflict with its model Code of Conduct, the respondent failed to include in its decision all relevant information available to it and ignored important considerations, such as Objective O1 (improving level of access for all people from all new builds and substantial alternations) and Objective O3 (the desire to significantly increase supply of adaptable housing stock) in Part 2.5.1 - Equity of Access and Mobility of the MDCP 2011. These objectives, which were relevant to the applicants' circumstances, and which were complied with by the applicants, were not referred to by the respondent in any assessment documentation.
The respondent failed to include in the assessment, and therefore uphold, the commitments outlined in their Disability Inclusion Plan 2017 - 2021. This plan was not referred to during the assessment of the application, notwithstanding the direct relevance of the document. The plan outlines the respondent's commitment to respecting the rights and improving opportunities for people with disability of all ages to participate fully in community life and specifically acknowledges that access to suitable housing (that is, the supply, design and affordability) is lacking. The plan outlines the respondent's commitment to: embed universal design principles into planning controls to provide; encourage and deliver improved accessibility and inclusion across the urban environment; continue to advocate for universal design principles for housing developments; explore opportunities to showcase, raise awareness and educate about the benefits of affordable liveable housing in the local government area; and review and address conflicts between access and other regulatory outcomes. The applicants contend that the respondent did not have regard, or appropriate regard, to these commitments in the assessment of their DA.
Because of the respondent's refusal to approve their DA, the applicants were required to commence proceedings in the Land and Environment Court. The applicants and the respondent each engaged independent experts to provide evidence as part of the Land and Environment Court appeal process. The respondent's experts only supported two reasons given by the respondent for refusing the application, relating to the disputed Conditions 12 and 22, and the balance of the issues were resolved during conciliation on the first hearing day, and the applicants contend the outcome was substantially in their favour.
During the conciliation process, the respondent agreed to amendments to the DA which were not materially different to those which the applicants had proposed, and the agreement confirmed that the respondent had discretionary powers which it could have applied as the statutory authority to approve the DA, with amendments. The applicants contend that the acceptance of the amendments confirm that reasonable adjustments could, and should, have been made by the respondent to disputed Conditions 12 and 22 as part of the development assessment so that approval could have been granted, having proper regard to the "various disabilities" suffered by GJE and the "needs of the Applicants in respect to accommodation needs". The applicants are aggrieved because they had to undertake a lengthy, stressful and costly court process to achieve an equitable outcome and they incurred $117,000 in legal and associated fees that others have not had to pay to achieve the same outcome.
According to a report from GJE's neurologist, Dr. Ian Sutton, GJE has suffered significant disease activity during the period in which the discrimination occurred by reason of the stress caused to GJE by the respondent's conduct in not applying appropriate guidelines or policies and in discriminating against the applicants, thereby exacerbating GJE's condition. GJE also relies on a report from her treating psychologist about the impact on her.
The applicants also contend that the respondent conducted an internal investigation, following a complaint made by the applicants, during which they were further discriminated against by the respondent because they were treated less favourably than others who lodged complaints who do not have a disability. The complaint was made on 19 June 2023 and the respondent conducted an internal investigation and notified the applicants of the outcome set out in its report dated 11 October 2023. The complaint was investigated by the General Counsel for the respondent. In short, the respondent did not accept the matters raised in the complaint.
The applicants contend that the respondent failed to accord the degree of seriousness in investigating and responding to the applicants' complaint that was warranted having regard to the nature of the issues raised. The respondent did not conduct its investigation in line with its own complaint handling policy and the respondent did not address the applicants' complaint with procedural fairness and natural justice, and without bias. The respondent only sought the opinions of staff who were involved in the discriminatory conduct. Notably, the investigation did not seek to compare or contrast decisions made in relation to the applicants' DA with other DA decisions made by the respondent. The respondent failed to resolve the investigation within the agreed time frame, and the investigation took more than three months to complete. The response to the complaint acknowledges GJE's disability but dismisses its relevance to the assessment process.
These allegations regarding the complaint to the respondent were not included in the applicants' complaint to the ADB because at the time the applicants lodged their complaint to the ADB the respondent had not finalised its internal investigation process. Accordingly, this matter was not the subject of investigation and referral by the President of the Board. At the hearing, the applicants requested that the Tribunal amend their complaint to include these claims pursuant to s 103 of the ADA.
GJE further alleges that the respondent breached her privacy under the Health Records and Information Privacy Act 2002 (NSW) (HRIPA) by publishing GJE's private health information, being her diagnosis of MS, on a publicly accessible portal without redaction of the private health information. This information was included in the applicants' response to the request for information sent to the applicants by the respondent, which the applicants submit was wrongfully disclosed, and available to the public, on the respondent's Planning Portal without redaction. It is not apparent that this breach is alleged to be unlawful discrimination but rather that it is a separate allegation.
The applicants seek findings of breach of the ADA and the HRIPA and an order for damages and compensation.

Points of defence

The following is a summary of the respondent's contentions as set out in the points of defence.
The respondent denies that it was providing goods or services for the purposes of s 49M(1) of the ADA and, as such, denies that there was any unlawful discrimination as alleged. Relevantly, the respondent contends that it was discharging its statutory functions under the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) and/or the Marrickville Local Environmental Plan 2011 (MLEP 2011) and/or the MDCP 2011. The respondent was discharging statutory functions under the EPA Act in assessing and determining the DA and it did not refuse to provide the applicant with goods or services for the purposes of s 49M(1)(a) of the ADA, nor was it providing goods or services on particular terms for the purposes of s49M(1)(b) of the ADA. It is further submitted that the respondent, in assessing and determining the DA, was complying with the requirements of the EPA Act. Accordingly, by reason of s 54 of the ADA, nothing that was done by the respondent in assessing and determining the DA was, or could have been, unlawful. In other words, the respondent relies on the statutory protections in s 54 of the ADA.
The respondent accepts that GJE is disabled but denies there was a discriminatory approach in relation to its determination of the applicants' DA. The respondent was unaware that GJE had MS when it first considered the DA and its officers issued a request for information on 14 April 2022, which set out the respondent's view that the DA required amendments to comply with the provisions of the MLEP 2011 and the MDCP 2011. Those amendments related to heritage and design, built form, solar access and overshadowing, visual and acoustic privacy, private open space, tree management and open space, floor ratio space, and the proposed studio above the garage appeared to present as a secondary dwelling, which did not provide adequate and separate open space. GJE disclosed her disability after the request for information but nonetheless the respondent denies that its assessment was discriminatory. The respondent accepts that cl 1.1.13 of the MDCP 2011 provided there could be flexibility in the application of development controls where strict compliance with controls was unreasonable or unnecessary but contends that a variation would only be considered where written justification for each variation requested demonstrated why the development control was unreasonable or unnecessary in the circumstances.
The respondent submits that the applicants have not identified the condition or conditions of the MDCP 2011 that they were required to comply with which a substantially higher proportion of persons who did not have a disability, or do not have a relative who has a disability, comply with and it is submitted that the applicants have not identified the specific provisions of the internal policy that should have been applied. It is also submitted that the applicants have not demonstrated why compliance with the provisions of the MDCP 2011 was unreasonable or unnecessary in the circumstances of the case.
The respondent contends that the EPA Act is an exhaustive list of the matters for consideration when determining a DA and there is no ability to consider matters that are not included in s 4.15(1) of the EPA Act. The EPA Act makes no reference to the Disability Inclusion Plan.
The respondent also contends that the reasons for refusing to consent to the applicants' DA were wholly set out in the notice of determination issued on 22 July 2022 and those reasons included that the proposed development was inconsistent with, and the applicants had not demonstrated compliance with, the Marrickville Local Environmental Plan, the Inner West Local Environmental Plan 2020 (IWLEP 2020) and the MDCP 2011. The applicants had a right to appeal to the Land and Environment Court under s 8.7 of the EPA Act against refusal of their DA. They exercised their right, however they did not allege in the proceedings that the respondent engaged in discriminatory conduct, and the proceedings were resolved by consent following conciliation without reference to discrimination or disability.
In relation to the complaint made by the applicants to the respondent, the respondents contend that allegations of discrimination regarding this complaint were not included in the referral from the ADB, although it accepted that the Tribunal may amend the complaint under s 103 of the ADA to include these claims. The respondent denies that dealing with the complaint is a "service" for the purposes of s 49M and also denies that its management of the complaint was discriminatory.
The respondent contends the information about GJE's medical condition was originally lodged by the applicants' consultant and therefore automatically uploaded onto the Planning Portal. In any event, the Tribunal has no jurisdiction to deal with the matter because the applicants, or at least GJE, would first need to have made an application for an inquiry pursuant to s 48 of the HRIPA and, once an application is made, any complaints would be the subject of a report by the Privacy Commissioner under s 47 of the HRIPA. There is no dispute that this did not occur and, in so far as the applicants seek orders pursuant to the HRIPA, this claim should be dismissed.
The respondent seeks dismissal of the proceedings.

Submissions and Issues in dispute

The applicants claim direct and indirect discrimination on the grounds of GJE's disability and GKA being a relative and carer. The applicants allege indirect discrimination in the manner in which their DA was approved and direct discrimination in relation to the handling of their complaint. The applicants allege that the respondent should have made reasonable accommodation to approve their DA given GJE's disability arising from her medical condition and potential need for wheelchair circulation space and a lift. The applicants contend that the respondent was required to have regard to its Disability Inclusion Plan policy and to Part 2.5 of the MDCP 2011 when making its assessment. GJE also alleges breach of her privacy in relation to the disclosure of her medical condition.
In summary, the respondent submits that there was no unlawful discrimination. First, the processing of a DA is not a "service" for the purposes of the ADA nor in respect of the consideration of a complaint. Even if consideration of a DA was a service, there was no unlawful discrimination and, in any event, s 54 provides protections because nothing under the ADA renders unlawful acts done under statutory authority. Furthermore, the Tribunal has no jurisdiction to deal with the alleged privacy breach, which is, in any event, denied.
While the respondent noted that the allegation in relation to the complaint was not referred by the President of the ADB, it was also noted that the Tribunal could amend the complaint to include consideration of this matter in the proceedings. At the outset of the proceedings, the Tribunal formed the view that these allegations, which arose from the claims made in respect of the refusal of the applicants' DA, could conveniently be considered as part of the proceedings. In the interests of the effective and efficient disposition of all issues in dispute relating to this matter, we decided to amend the complaint to include the allegations made in respect of the investigation and resolution of the complaint made to the respondent in June 2023.
Having regard to the points of claim and points of defence and the submissions of the parties, the issues for determination are as follows: 1. Is there jurisdiction to consider GJE's claim about the breach of privacy under the HRIPA? 2. Did the respondent provide "services" to the applicants for the purposes of the ADA in respect of the DA and/or in dealing with their complaint? 3. If so, did the respondent unlawfully discriminate against the applicants on the grounds of GJE's disability and against GKA as a relative and/or as carer in: 1. dealing with their DA, and/or 2. dealing with their complaint dated 19 June 2023? 1. Is the respondent entitled to rely on the protections in s 54 of the ADA? 2. If the answer to (3) is yes and the answer to (4) is no, what orders should be made?

DA Process

There are a number of critical planning guides and documents referred to in these reasons and for convenience we have abbreviated the references to those documents by using acronyms: the Marrickville Development Control Plan 2011 is referred to as the MDCP 2011; the Marrickville Local Environmental Plan 2011 is referred to as the MLEP 2011; and the Inner West Local Environmental Plan 2020 is referred to as the IWLEP 2020. The differences in the names of the planning authorities and councils relates to the policy of amalgamating councils in adjoining local government areas (Ashfield, Leichhardt and Marrickville Councils) which was implemented in 2016. The MDCP 2011 was the relevant development control plan in operation at the time the applicants' DA was being considered. This appears to be uncontentious.
A DA was lodged on behalf of the applicants by the planning consultant on 22 December 2021. The proposed development was for alterations and additions to the existing dwelling and the construction of a new garage structure at the rear of the property with a first-floor studio above the garage.
By letter dated 14 April 2022 the respondent wrote to the consultant and advised as follows: Council is committed to working with you toward a proposal that can be supported. A preliminary view of the above proposal has been carried out and it is considered that a first-floor addition is able to satisfy the relevant objectives, however, the current design requires some amendments to achieve the below provisions of the Marrickville Local Environmental Plan 2011 (MLEP 2011) and the Marrickville Development Control Plan 2011 (MDCP 2011).
The letter then went on to identify nine areas that needed to be considered and resolved. Those issues related to: heritage and design; built form; solar access and overshadowing; visual and acoustic privacy; private open space; tree management open space; floor space ratio; secondary dwelling; public notification submissions and general documentation matters. Two of the issues raised were contentious, and remained so until the Land and Environment Court proceedings were resolved. Those conditions were Condition 22 of Part 8.3 of MDCP 2011 (existing roof form) and Condition 12 of Part 2.18 of MDCP 2011 (minimum open space percentage of total site).
The letter identified particular clauses, objectives, and controls or conditions of the planning documents, being MLEP 2011 and MDCP 2011, that were identified as not having been complied with and the author, Analise Ifield, assessment planner, requested that certain design considerations be taken into account to address the concerns. There were extensive issues raised in the letter, with suggested solutions to address the concerns. The letter advised that the applicants would be allowed 21 days to submit amended plans or information.
By letter dated 12 May 2022, the applicants' consultant responded to the request for information and provided amended plans. The response was extensive and included a number of proposals to address the respondent's concerns. In response to the issues raised about the first-floor rear setback and the height of the dwelling, the applicants' consultant advised as follows: Furthermore, the owner has been diagnosed with MS and requires amenity for adaptation should the provision of a lift and further accessibility requirements be prescribed in the future. Reduction of the rear set back will be detrimental to the owner's future accessibility needs. As such, the owners ask Council to reconsider the rear setback.
In relation to the minimum open space issues, the respondent had requested that the ground floor setbacks be amended to provide a minimum of 53.12 square metres of private open space. The consultant submitted that the proposed curtilage between the house and the garage was similar to what had been allowed in relation to neighbouring properties and that the rear setback aligned with the neighbouring properties. It was noted that the existing dwelling already had a private open space percentage below the prescribed minimum and that the proposal for open space of 39.35 square metres was directly accessible from the new/revised open plan primary living spaces. It was argued that this served as an extension to the rooms and was a purposeful functionality. It was also noted this provision of open space was not dissimilar to that which exists in neighbouring and nearby properties. In other words, the consultant was requesting that the respondent consider these amendments favourably even though they did not strictly comply.
There were meetings and exchanges of emails between the applicants, their consultant and the respondent after this correspondence and before the respondent refused to approve the applicants' DA. Details of these communications are set out below.
In an email dated 14 June 2022 from the applicants' consultant to the respondent, specifically Annalise Ifield and Martin Amy, the consultant referred to a meeting the previous week and noted that the applicants had reviewed the overshadowing impact. The email included a number of submissions about why the overshadowing issue was not a problem. It was noted these submissions were provided in advance of organising a meeting to discuss any proposed amendments.
Annalise Ifield responded by email dated 16 June 2022 to the effect that the amended plans did not satisfy a number of objectives and controls of the MDCP 2011 and that, while their assessment policy only allows for one opportunity to submit amended plans, the respondent was open in this instance to consider amended plans and information for the proposal. It was accepted that further design amendments may not be consistent with the applicants' desired outcome, but it was also noted that the respondent considered further amendments would be required to achieve an outcome that satisfies the various planning provisions. Annalise Ifield listed the specific matters, being the first floor addition to be further set back beyond the rear roof hip, the overall height of the addition to be further reduced, amending the ground floor setbacks and increasing the building separation to provide a minimum of 53.12 square metres as private open space, increasing the first floor rear setback to improve solar access, deleting the studio above the garage and reorientating the first floor windows. Ms Ifield requested that the consultant send through amended plans within seven days so they could then be in the position to set up another time to discuss the application.
After this email, but on the same day, the consultant sent an email to the planning team of the respondent (Annalise Ifield and Martin Amy), requesting a meeting to discuss the proposed amendments before plans were submitted. Annalise Ifield responded approximately an hour later with a nominated time, noting that she had left Martin Amy out of the email chain because he was due to take leave and would not be attending future meetings, however the acting team leader, Kaitlin Zieme, would be attending in his stead. The meeting was proposed for the following week. GJE responded to the email chain directly, addressing the email to Martin Amy, who was about to take leave, to the following effect: After a meeting last week with you I was left with hope that someone in council was taking a serious look and consideration towards our home and circumstances. I'm feeling desperate and disillusioned once again with the correspondence below. We are prepared to make amendments and feel so upset that we're being treated with such disrespect by council, including waiting more than six months and then being given seven days to submit amended plans. I'm in shock that council think it's OK to treat a resident this way. Please can you attend another meeting with us so we don't have to re explain the entire concerns we have with someone else and we can progress our application to be finalised with courtesy and fairness?
By email dated 21 June 2022 from the consultant to Annalise Ifield and Kaitlin Zieme, the consultant referred to the meeting that had taken place that day and noted that she had discussed with the applicants and they had agreed specific items, relating to the ground floor set back being reduced (which would increase the private open space because of these reductions), having the garage set-back from the house to be reduced by 600mm, providing for the private open space to be 49 square metres, which was equal to the existing condition, including privacy measures and reverting to the previously approved studio design. The consultant also asked whether the respondent would guarantee approval if she was able to get the applicants to agree to reduce the first floor set back at the street by an extra metre.
By email dated 24 June 2022, Annalise Ifield stated that she did not believe this would satisfy a number of the objectives and controls previously described in the request for information letter and there would be no further opportunity given to provide additional information in relation to the application. She requested that the applicants advise whether they wished to withdraw the application in those circumstances. If not, the consultant was advised that the application would be determined based on the amended plans. The consultant responded to the effect that the measures outlined should give the council enough to approve the application with conditions and, given the history and the applicant's health, she was hoping that the council "would work with the applicants on this one".
On 29 June 2022, GJE sent an email to Simone Plummer, who was the respondent's Director Planning at the relevant time. In the email GJE attached some further documentation and further argued for the approval of their application, referring to other developments and making submissions about why their DA should be approved. Simone Plummer responded by email dated 30 June 2022, referring to a conversation with GJE and setting out a summary of the amendments required to be included in any future design. Those amendments were: full compliance with the minimum requirement of private open space, being 53.12 square metres (by adjusting ground floor and first floor building setbacks); and the first-floor study to be deleted and the first floor was to be reduced in height and scale. She noted that, in addition to the "commitments" discussed with GJE, there was a minor adjustment required in relation to the scale of the studio to the extent of a reduction in height and she apologised for overlooking this proposed amendment in their discussion.
Simone Plummer noted that, as agreed, the respondent would provide an additional 14 days for the applicants to consider their options to either withdraw the current application or for the current application to be determined as a refusal. She noted that if a decision was made to wait for a refusal, this would preserve the applicants' appeal rights in the Land and Environment Court, should they choose. Ms Plummer also noted that she had asked the team to remove the document that disclosed GJE's personal health information from the website and she apologised that this had happened.
There is no evidence that additional plans were provided, or amendments made, and on 22 July 2022 the respondent refused the DA.
Included in the applicants' bundle of documents is the development assessment report completed by Annalise Ifield. It is noted in the report that the respondent received revised plans and additional information which resolved certain matters but noted that other key issues had not been satisfactorily addressed. Those key issues were identified as heritage, privacy, solar access and overshadowing, landscaping/open space and site coverage, and built form. It was noted in the preliminary assessment that the DA did not comply with clauses 1.2 and 5.10 of the MLEP 2011 and Parts 2.1, 2.6, 2.7, 2.18, 2.20, 4.1.5 - 4.1.7, various provisions in Part 8 (heritage) and Part 9.3 of the MDCP 2011.
The applicants were notified of the refusal by notice of determination dated 22 July 2022. The reasons for the refusal can be summarised as follows: 1. The proposed development was inconsistent and had not demonstrated compliance with the MLEP 2011 pursuant to s 4.15(1)(a)(i) of the EPA Act, namely non-compliance with clause 1.2(g) and (h), in that the proposal failed to identify and conserve the environmental and cultural heritage of Marrickville and it does not promote a high standard of design, and clause 5.10(1)(a), (b) and (4), in that the proposal fails to conserve the environmental heritage of Marrickville and the heritage significance of heritage conservation areas including associated fabric, settings and views. 2. The proposed development was inconsistent and had not demonstrated compliance with the MDCP 2011 pursuant to s 4.15(1)(a)(iii) of the EPA Act, namely Part 2.1 (Urban Design) in accordance with O1 and C1; Part 2.6 (acoustic and visual privacy) in accordance with O1, O2 and C3; Part 2.7 (solar access and overshadowing) in accordance with O1, O3, C2 and C8; Part 2.8 (landscaping and open spaces) in accordance with O1, O7, O11 and C-12; Part 2.20 (tree management) in accordance with O1, O4, O5, O7 and C11; Part 4.1 (low density residential development) in accordance with O8,O9, O14, C10, C12, O15, O16, O17, O18, O19 and C31; Part 8 (heritage) contrary to 04, O5, C1, C14, C17, C19, C21 and C22 and Part 9.3 (Stanmore North precinct 3) in that the proposal will be inconsistent with the desired future character of the Stanmore North precinct. 3. The proposed development was inconsistent, and had not demonstrated compliance, with the Draft IWLEP 2020, "which has the weight of imminent and certain", pursuant to s 4.15(1)(a)(ii) of the EPA Act, namely there was non-compliance with clause 1.2(g) and (h), clause 2.3(2) regarding zoning objectives, and clause 5.10(1)(a) and (b) relating to heritage conservation. 4. The proposal will result in adverse environmental impacts in the locality pursuant to s 4.15(1)(b) of the EPA Act. 5. The adverse environmental impacts of the proposal mean that the site is not considered to be suitable for the development as proposed, pursuant to section 4.15(1)(c) of the EPA Act. 6. The proposal, by virtue of its various inconsistencies with the relevant planning documents, is considered contrary to the public interest, pursuant to s 4.15(1(d) and (e) of the EPA Act.

Appeal to the Land and Environment Court

The applicants lodged an appeal with the Land and Environment Court in relation to this decision in August 2022. Pursuant to s 34(3) of the Land and Environment Court Act 1979 (NSW), the parties reached an agreement whereby the applicants were granted leave to amend their DA to rely on amended architectural plans prepared by their consultant dated 2 December 2022. There were substantial revisions to the plans, which were set out in a plan referred to as "Revision D". The particulars of Revision D were set out in the order made by the Land and Environment Court on 2 December 2022 in paragraph [B]. The decision of the Court dated 2 December 2022 was set out in paragraph [D] as follows: 1. The court notes: a. That Inner West Council, as the relevant consent authority, has agreed, pursuant to cl 55 of the Environmental Planning and Assessment Regulation 2000, to the applicant amending the development application [redacted] with the plans and documents listed in Annexure A to this agreement; and b. The applicant uploaded the documents set out in paragraph [B] onto the NSW Planning Portal on 2 December 2022. 2. The appeal is upheld. 3. Development application [redacted] for alterations and additions to the existing dwelling, demolition and construction of a new garage with a studio above, landscaping and required site works at [address], is determined by the grant of consent subject to the draft conditions in Annexure A. 4. Pursuant to s 34(3)(a) of the Land and Environment Court Act 1979, the parties request that the Commissioner dispose of these proceedings in accordance with the terms of the decision set out in paragraph [D] above.
Accordingly, as a result of the agreement, the applicants agreed to amend their DA and the respondent agreed the application should be approved, subject to certain conditions.
While it is unnecessary to examine the detail of the amendments or the scope of the dispute before the Court, it is relevant to note that on 29 November 2022, the applicants provided amended plans to the Court and the respondent on a 'without prejudice' basis in response to joint reports from the heritage and town planning experts from each side. Both parties retained experts on arboriculture, heritage and town planning. The experts conferred, producing three joint reports - one each for arboriculture, heritage and town planning issues - which identified the matters that were agreed and those where there was still dispute. The three reports were included in the tender bundles.
The arboriculture joint experts report is dated 3 November 2022. There were no areas of disagreement between the experts.
The joint expert report of the heritage experts is dated 14 November 2022. The experts agreed that there were no heritage concerns with the garage and the studio or the part of the rear addition of the house that was located behind the original roof. The main issues between the experts related to the heritage issues arising from concerns about the roof and the first-floor additions proposed at the front of the property. The applicants' expert stated that "the opportunity to add to the dwellings in the street had been afforded to a number of other properties" and that "the dwellings in the street were not consistent in size and style".
The respondent's expert continued to raise concerns about the roof form, stating that she had formed her opinion based on her inspection of the properties, a review of the assessment report, a review of stamped approved plans and consents and a review of the heritage officer comments. The expert stated that her analysis had shown that council had consistently applied the controls relevant to the upper-level additions in the [street address of applicants] and particularly the requirement to retain the original roof form intact. The expert considered a neighbouring property which was said to provide the most relevant precedent. It was noted that the addition in the neighbouring property sits behind the original roof in a pavilion style addition with the original front and side roof planes retained in their entirety.
The respondent's expert opined that the revised drawings provided by the applicants' expert were a "slight improvement" on the previous proposal, but she did not consider that they resolved the issues in relation to heritage. She noted that there was a lift included, which was not part of the original application. The expert had no in-principle objection but would not support the lift in its proposed location because it would involve an element protruding from the original side roof plane.
There is no dispute that the issue of a potential lift was not referred to, or included as a subject in, the original DA or in any amended plans. However, it was the subject of later discussion between the applicants and officers of the respondent and referred to in the evidence by GJE at the hearing as to why she wanted extra space in the first-floor addition.
The joint town planning experts prepared a report dated 17 November 2022. The issues addressed were what was considered to be the two remaining contentious issues within that fell within their expertise, namely the private open space and the solar access. At paragraph 2.1.30 of the report the applicants' expert noted that there were approximately 26 residential properties within the street block and the expert estimated that only approximately 7 or 8 of those properties provided private open space that would comply with the numerical control in part 2.18 of MDCP 2011, with the remaining 18 to 19 properties appearing to provide private open space less than the MDCP numerical control. The expert observed this review indicated that Council adopted a "reasonably flexible approach" to the implementation of the MDCP 2011 in circumstances where strict compliance is difficult or impractical to achieve. He opined that the proposed area of private open space was reasonable for a number of reasons outlined in the report, including that the extent of numerical variation is minor, the proposed development is generally consistent with the controls relating to private open space and the proposed development would materially improve the private open space relative to what currently exists.
It was further noted by the applicants' expert that "there are many examples of private open space in the locality that do not achieve strict compliance with the numerical control". The expert was also of the opinion that the solar access within the private open space was very reasonable.
In contrast, the expert for the respondent did not agree, noting that the proposed private open space, while similar to the existing open space, did not take into account the increases in demand given the increase in the size of the dwelling from 117 square metres to 212 square metres, which was an 80% increase in size, and the increased number of bedrooms from three to five. In relation to comments by the applicants' expert that other DAs with less than complying private open space had been approved by council, the respondent's expert noted that he had not been provided with any of the relevant documentation, but he accepted that the council does approve developments where there is non-compliance. Accordingly, it is apparent that the planning experts remained in disagreement about the private open space. On the issue of solar access, it is apparent that there was substantial agreement.
The Revised D drawings that were ultimately approved comprised 17 new drawings and plans. The applicants identify two aspects of the planning approval process which they considered to have been discriminatory and unreasonable, being the respondent's insistence on compliance with the Conditions 12 (Part 2.18 of the MDCP) and 22 (Part 8.3 of the MDCP). To understand the changes that were agreed relating to these matters it is necessary to compare the two sets of drawings and plans: A (being the original) and D (being the revised plans that were the subject of the settlement).
The proposed roof, wall and garage changes, as originally contained in 02-03 - 02.06A, with additional drawings for the elevations, were revised in 02-01 - 02.06D, which lists the changes to include: 1. Northern boundary wall to courtyard to be removed (02-07D showing the East elevation), first floor setback increased and pop out to first floor with colour to match roof, changes in windows (02-01D & 02-05D); 2. Location of external garage wall revised, proposed tree in courtyard (02-02D); 3. The extension of the study as shown in 02-03A no longer proposed, with the original structure retained (02-03D & 02-04D); 4. Diagram 02-06D (the North elevation) shows the significant change in the roofline, with the overall height reduced and the alternative pop out proposed off the original roof. 5. Diagram 02-08D (the West elevation) showing the changes to the garage and studio.
Relevantly, the two disputed conditions were resolved by the proposed private open space being approved as 47.042 square metres (03-02D), compared to 39.35 square metres in 03-02A and the existing 49 square metres, and the built form of the front streetscape roofline being reduced or set back.

Complaint to the General Manager

The applicants sent a letter of complaint to the General Manager of the respondent on 19 June 2023. In particular, the complaint alleged inconsistent and onerous refusal reasons, due diligence failures, the wrongful disclosure of GJE's medical condition and disability discrimination in the assessment and determination process of their DA because the respondent did not take into account its DIAP. As noted, the General Counsel, Matthew Pearce, was asked to investigate the complaint. In his report dated 11 October 2023 to the General Manager, Matthew Pearce found that the complaints were not established. He notes in his report that he reviewed and read the applicants' DA and Statement of Environmental Effects, the Assessment Report in respect of the DA, correspondence between the respondent and the applicants during the assessment, including the responses from the applicants' consultant, the refusal of the DA, the respondent's "Disability Inclusion Policy", the letter of complaint, council planning documents being the MLEP 2020 and the MDCP 2011, and the appeal and related documents in the Land and Environment Court proceedings. He interviewed Simone Plummer, Kaitlin Zieme and Annalise Ifield.
Because of the claims made by the applicants in relation to how the complaint was managed, it is important to set out the detail of the investigations said to have been undertaken and the relevant findings. These are recorded in the investigation report dated 11 October 2023.
According to Matthew Pearce, he interviewed Annalise Ifield in relation to the assessment process that she had undertaken. He noted that there were several meetings with the applicants and there were three time extensions granted to allow the applicants to consider whether they were prepared to further amend the DA to reduce the bulk and scale of the proposed development. Annalise Ifield proceeded with the assessment and determination based on planning grounds.
Mr Pearce interviewed Kaitlin Zieme, who was the team leader managing the assessment of the DA. She noted that some amendments were provided but they did not address the planning concerns. In brief, Ms Zieme stated that the DA was assessed and evaluated in accordance with s 4.15 of the EPA Act. Accessibility was not a planning criterion in the MLEP 2011 or the MDCP 2011 in the assessment of a residential development. She stated that the reasons for refusal were in accordance with the legislation and were based on planning grounds, which were not unreasonable or unusual, and were typical for such a development where there was non-compliance with the planning controls.
Matthew Pearce concluded that the reasons for the refusal were neither inconsistent nor onerous and that they were based on a comprehensive assessment by a qualified town planner of the planning controls. He concluded that the town planners undertook their statutory duty under the EPA Act pursuant to sections 4.15 and 4.16 in respect of the evaluation and determination of the DA. He noted that there is no statutory requirement for consideration of an applicant's disability, only to planning matters that apply to the land on which the property is situated. In his opinion, the town planners discharged their statutory responsibility and determined the DA in accordance with the legislation.
There was an allegation by the applicants that the respondent had failed in its due diligence by failing to undertake an inspection of the property in the assessment and determination of the DA. Mr Pearce found that the town planner attended the property, taking a view from the outside, and undertook an inspection of the existing house, streetscape and locality. It was noted that at this time it was the usual practice (due to COVID restrictions) that inspections were limited to an external rather than internal inspection and otherwise there was a desktop assessment of the heritage issues relating to the DA. Mr Pearce was satisfied that there had been no failure in due diligence in respect of undertaking inspections for the purpose of assessing the DA.
In relation to the public disclosure of GJE's disabling medical condition, Mr Pearce noted that the applicants' consultant lodged the response to a request for further information on the planning portal and the request, together with the response, were uploaded on to the publicly assessable platform. Mr Pearce noted that when applicants use the planning portal, they are automatically directed to a declarations page which they are required to complete, noting that they understand the consent authority may use the information and materials provided for notification advertising purposes and materials provided may be made available to the public for inspection at its offices on its website or on the planning portal. In this case, the consultant to the applicants, being the person who submitted the documents online, acknowledged the material referred to in the portal. Mr Pearce formed the view that, in these circumstances, the applicants had consented to the public disclosure of the material relating to the DA which allowed the council to publish, at its discretion, any material placed on the planning portal. It was acknowledged that GJE's medical condition was disclosed in those circumstances, and Mr Pearce was of the opinion that it would be unreasonable to expect the respondent to filter through every document lodged through the planning portal. He formed the view that the respondent did not breach GJE's privacy because of the declaration on the portal and the consent provided through the consultant.
On the issue of disability discrimination in the DA assessment and determination process, Mr Pearce reported that he had reviewed the DIAP and noted that it was a requirement for the respondent to continue to advocate for universal design principles for housing developments in the Inner West LGA, including relating to affordable and liveable housing. However, in his view, the DIAP was a prospective social document that plays no role in the assessment of DAs because there is no reference to social policies in the legislation, the MLEP or the MDCP. He also noted that the applicants did not rely on the DIAP in their appeal, and the Court approval for the alterations and additions to the dwelling were based on an agreement through the Court's jurisdiction based on the parties' agreement about the reduction and scale of the first-floor addition, and other matters relating to the garage and open space founded on planning considerations. Mr Pearce concluded that there was no statutory requirement for the respondent's assessment officers to consider the DIAP as it is not a planning document, and the assessment was made on the basis of the planning controls.
As noted, Mr Pearce concluded that the complaints made were not established.

Witness Evidence

GJE gave oral evidence to the Tribunal and presented the applicants' case. She did not provide a witness statement and relied on the applicants' points of claim. When giving evidence, GJE tended to give evidence about factual matters and make submissions about the applicants' contentions without making a distinction between the two. We therefore outline GJE's evidence and a summary of her contentions below, although we note that a contention about a matter from a party is not evidence of the truth of the matter. GKA did not give evidence.
GJE said that she had a disability which was progressive in its nature. When the applicants lodged the DA, they had in mind the importance of making renovations that would accommodate her disability in the future. The family had lived in the house for 15 years. GJE was of the opinion that the respondent had unlawfully discriminated against her and her husband in dealing with their DA. She had disclosed her disability to the respondent and the need to adapt her residence for the future. She did not believe that the refusal was based on planning requirements, particularly given the council did not follow its own DIAP, relevantly strategy 4.3. The respondent refused to amend the operation of the Conditions 12 and 22, which they could have adjusted, and this meant that she and GKA needed to take action in the Land and Environment Court to appeal the refusal. GJE claims costs and damages for mental anguish. She accepts that the applicants did not seek or obtain an order for costs in the Land and Environment Court proceedings.
GJE also claimed that the respondent discriminated in conducting the investigation which she alleges was intentional and malicious and represented direct discrimination. She considered the investigation to be superficial. She was also aggrieved about the fact that the respondent had published her private health information on its website without her consent.
GJE gave evidence that it was harder for her and GKA to comply with conditions 12 and 22 because of her disability. The house was long and narrow and there were problems with available space within the property. It was particularly difficult in the upstairs area where she would need sufficient circulation space to navigate a wheelchair. The respondent's insistence that the roof of their property should be the same at the front and the rear made it difficult for the applicants to renovate the property to provide adequate living space for the future. The reason why they needed the change to the roof was specifically so that GJE could have sufficient area to operate a wheelchair, to accommodate an accessible bathroom and, in the future, the possibility of a lift. She considered the insistence on compliance to be arbitrary in the circumstances and the respondent could have approved the change on the basis of merit.
GJE asserted that the same planner had approved a number of other similar DAs. There is a level of discretion allowed under the planning instruments which the respondent unreasonably failed to take into account for the applicants. The respondent had agreed to adjust the conditions as part of the settlement of the Land and Environment Court proceedings. There were also changes made in relation to the garage and the private open space area which the respondent had previously refused to approve. The applicant's existing private open space was 49 square metres and the respondent had now accepted less than this as part of the Land and Environment Court settlement. The respondent had previously insisted on private open space of over 53 square metres. Relevantly, GJE referred to the MDCP 2011 guidelines, which she stated could be varied and, in particular, refers to cl 1.1.12 of MDCP 2011.
GJE said that that she had a conversation with council officers in June 2022 about the need to adapt their home for the future and the possibility that she may need to install a lift. She also said she told council officers that if she needed to use a wheelchair in the future, she would need enough room in her bedroom otherwise she would not be able to navigate in a wheelchair. There were meetings with the council officers, namely Annalise Ifield and Kaitlin Zieme, and they said they would only accept a change if there was change to the study. They also told her that they would need to comply with the private open space requirements. GJE was concerned to ensure that the proposed renovation, which envisaged a four-bedroom house, should remain. The applicants had made a number of other adjustments to the plans to accommodate the non-compliance issues and those adjustments were reasonable and should have been accepted.
GJE was questioned about how the proposed changes to the garage and the studio were relevant to accommodate her disability. GJE said that the studio was intended as accommodation for carers in the future although she accepted this was not referred to in the DA. She said that the current dwelling had three bedrooms downstairs, and it was proposed that there be a new master bedroom upstairs with sufficient provision for a lift in the future. She agreed that this was not included in the original application and that she did not disclose to the council at the initial stages that she may require a lift in the future. She agreed that the DA did not refer to the issue about needing additional circulation space upstairs to accommodate a wheelchair. GJE said that the applicants did not include this in the initial DA because they wanted to have a universal design. She agreed that they did change the design of the master bedroom as part of the settlement of the Land and Environment Court proceedings.
GJE said that she had provided comparators in her evidence which showed that the respondent had not applied discretion to their DA whereas they had been prepared to approve other developing applications that did not comply.
Annalise Ifield provided a statement dated 3 May 2024 and gave oral evidence before the Tribunal. She is a senior town planner for the respondent. She commenced employment in January 2019 and then was appointed as an assessment planner in December 2019. She has been employed as a senior planner since January 2023 and holds a degree in science and Master of City Planning from the University of NSW. She undertakes the assessment of complex development related applications.
According to Ms Ifield, when assessing a DA, all planners in NSW are required to assess the application in accordance with the EPA Act and the Environmental Planning and Assessment Regulations 2021. The respondent has policies that provide information to applicants for DAs with respect to the assessment and notification process.
When assessing a DA, Ms Ifield notes that s 4.15 of the EPA Act prescribes the matters that can and must be considered. These matters include any environmental planning instrument, any proposed instrument that has been the subject of public consultation, any development control plan, and any planning agreement that has been entered into under s 7.4 of the EPA Act. All planners must also take into account the likely impacts of that development, including environmental impacts on the natural and built environments and social and economic impacts in the locality, the suitability of the site for the development and any submissions made in accordance with the EPA Act or the regulations and the public interest.
According to Ms Ifield, the planning and development regime in NSW is based on the premise that development consent runs with the land not the owner and this means that the identity of the applicant and their personal circumstances is not something that can be taken into consideration when completing the assessment. The relevant environmental planning instrument in this instance is the MLEP 2011 and the relevant development control plan is the MDCP 2011. The MLEP includes the zoning of the land and development standard. This specifies maximum or minimum requirements for development, which Ms Ifield states are consistently enforced. The MDCP is considered as a guideline where some discretion can be exercised on planning merit in circumstances where the design solution achieves the objectives of the MDCP.
Ms Ifield stated that, notwithstanding this, the MDCP is applied consistently across the Inner West Council area. She states that when referring to the respondent having discretion in the application of the MDCP, such discretion can be exercised having regard to the physical characteristics of the site and the adjoining nearby properties. The planning team also seeks advice from internal technical experts in assessing DAs, including the heritage team. According to Ms Ifield Part 2.5 of the MDCP 2011, "Equity of access and mobility", is not relevant to applications for alterations and additions to dwelling houses and is not a consideration that can be taken into account in determining applications.
Ms Ifield notes that the applicants did not engage with, nor request pre-DA advice from, the Council. Pre-DA advice is offered as an option to all applicants before they lodge their DA. The time frame for assessing a DA of this type is 40 days, however, applications are rarely determined within this time. She was allocated the DA on 8 February 2022 and the applicants were advised of this by letter dated 9 February 2022. She sent the application to the respondent's specialists in urban forest, heritage and engineering for comment. She undertook a site visit on 13 April 2022 and, consistent with the respondent's policy at that time, she did not enter the property but conducted an external review. She requested further information by letter dated 14 April 2022. The applicants provided a response, through their consultant, on 12 May 2022. Ms Ifield states that GJE's disability was not disclosed at the time of the initial application. This is consistent with the documents provided. She further states that GJE's disability was first disclosed in a meeting online on 10 June 2022 to discuss the response to the 'Request for further information' letter. It is apparent that GJE's disability was disclosed in the letter from the applicants' consultant in response to the request for information, which is the subject of the privacy dispute, and there is no dispute that it was discussed in the meeting on 10 June 2022.
Ms Ifield states that the main issue of concern in relation to the DA was the bulk and scale of the built form being inconsistent with the heritage conservation area, resulting in adverse amenity impacts of overshadowing and insufficient private open space. She notes that there were a number of meetings with the applicants to provide feedback and discuss alternative solutions and that further time and opportunity was given to the applicants to amend their plans, but they did not do so. She conducted a final assessment on the amended plans and the refusal was issued on 22 July 2022. Ms Ifield states that an assessing officer is restricted in what can be considered, and she assessed the application on its merits in the same manner as every other DA before the Council. At no point did GJE's disability, or the fact that GKA was her relative or carer, impact or influence her consideration in any way.
Ms Ifield was asked about why Part 2.5 of MDCP 2011 did not apply to their application. Ms Ifield said that the wording of Part 2.5 of MDCP 2011 (particularly on page 4) excluded existing residential properties. As such, she was of the opinion Part 2.5 did not apply and she did not resile from this opinion after questioning. Our analysis of these provisions is set out later in these reasons.
Ms Ifield was asked about the meeting that took place to discuss the applicants' response to the request for further information. GJE asked Ms Ifield whether she recalled discussing her condition and explaining that there may be a need for a wheelchair and mobility access needs in the future. Ms Ifield said she could not now recall these discussions; however she did recall suggesting that the study could be deleted. When asked why she did not apply the benevolent principle to assessing the application. Ms Ifield replied that the benevolent tool could be used where there was a gap in the policy but in this case that she did not consider there was a gap in the policy.
Ms Ifield was asked about an application approved by her in respect of a DA in Stanmore to demolish part of the premises and carry out ground and first floor alterations and additions to the main dwelling and to construct a storage area over an existing garage (the Wang application). The application was lodged on 11 February 2022 and was approved by Ms Ifield, although the date of the approval is not clear from the documentation provided by the applicants. It is recorded in Ms Ifield's assessment report that the development was required to provide a minimum of 45 square metres of private open space in compliance with Part 2.18, being the landscaping and open space requirement. It was noted that the site currently provided 21.5 square metres of private open space and that the proposal reduced the area by 3.8 square metres to allow for the minimum dimensions of off-street parking. The non-compliance was considered to be "acceptable" because the reduction in the area was minimal but unavoidable due to the minimum dimension requirements for off-street parking. It was also noted that the area of private open space was an extension of the living area as a dwelling.
Ms Ifield is recorded as noting that the development proposal resulted in a decrease in sunlight available on 21 June but that the planning principle regarding access to sunlight, as developed in the case law in the Benevolent Society v Waverly Council, was used as a tool to interpret the control. Even though the development proposal resulted in a further decrease in sunlight available on 21 June, it was noted that the council would consider the development potential of the site.
Ms Ifield was asked about this application and why it was approved when the applicants' DA was not. Ms Ifield said that this application was not the same because the alterations and additions were minor.
Ms Ifield was asked why the respondent did not accept the reduced private open space of 49 square metres in the applicants' DA, given this was the existing private open space approved, rather than insist on the requirement of 53 square metres. Ms Ifield said that in the case of the applicants' DA there were other issues that were relevant, including the fact that there were additional bedrooms and living space, which influenced her assessment. She said that the Wang application could be distinguished from the current case because the amendments in that case were minor and there was a small building footprint with a small alteration to the property to take into account the off-street parking. The Wang application was not analogous because there was no impact on the ground floor footprint and the main change had the impact of reducing the open space so the residents could comply with the off-street parking rules. One of the reasons why the changes in relation to the Wang application were acceptable was that the changes were being made to achieve a complying design.
The Tribunal was provided with a statement from Kaitlin Zieme dated 3 May 2024 and she also gave oral evidence. She is a team leader for Development Assessments at the respondent. Ms Zieme commenced employment with the respondent in 2015 as an assessment planner before being appointed as a senior planner. She was appointed as a team leader in January 2023 and was acting in this role during 2022. In her role as team leader, she is responsible for a team of between five and six planners. She holds Bachelor of Planning from the University of NSW.
Ms Zieme became involved in the applicants' DA in June 2022 just prior to commencing as acting team leader. She was given a briefing from the team in relation to amended plans that were provided by the applicants, and she attended a meeting by Microsoft Teams between the planning team and the applicants at that time. During the meeting GJE disclosed that she had MS and was seeking to modify her home to accommodate a wheelchair in the future. Ms Zieme noted that, despite this, the proposal on the DA was not put forward to make the premises more accessible so that it would accommodate a wheelchair. For instance, she notes that the application made no allowances for accessible paths of travel for a wheelchair or the like in the design or for additions to the dwelling or the garage and the loft. The premises had several stairs internally and the proposed additions were only accessible through the stairs. She notes that during the meeting, the applicant suggested that an application for a lift would be made under a future DA. They were advised that any future application would be assessed at that point of time.
Ms Zieme states that during the meeting, council officers set out what would be needed to reach compliance with the local planning controls and objectives and the applicants were advised that the first floor was required to be further set back from the street and reduced in size. They were also advised that the private open space needed to be increased and that there would need to be changes to the design of the garage and the loft. Ms Zieme stated that she had the impression the applicants were not prepared to make changes to their plans.
According to Ms Zieme, she had continuing discussions with Ms Ifield throughout the assessment process. She reviewed Ms Ifield's assessment report and the reasons for refusal. She agreed with the assessment and signed off on the report and the reasons. She has been delegated with functions under the EPA Act to make these determinations. Ms Zieme states that none of the reasons for agreeing with Ms Ifield's assessment were because of GJE's disability or the fact that GKA was her relative or carer. These matters were completely irrelevant to her support for the refusal.
Ms Zieme further states that planners have a responsibility to uphold the planning controls. She notes that each site within the council area is different and there are often complex issues associated with development assessment including, but not limited to, constraints such as small sites, heritage conservation areas and trees that planners must assess and find a balance about the merits of the proposal and its compliance with the relevant planning controls. She states that there is no scope, as far as she is aware, within the EPA Act to consider the personal circumstances of an applicant under the planning principles, as the development consent runs with the land and not an individual owner.
Ms Zieme also states that her understanding of Part 2.5 of the MDCP 2011 is that it does not apply to alterations and additions to an existing private dwelling. She states that variations to the relevant local planning controls may be approved in limited circumstances. Variation should be accompanied by a formal s 4.6 exemption request to establish that compliance with the standard is unreasonable or unnecessary and that there are sufficient environmental planning grounds to justify what would be a contravention of the LEP. It is possible to accept a variation from a development control plan provision at the Council's discretion, however, variations to the DCP standards are site specific and are considered in the context of the physical characteristics of the site and the nature and proximity of adjoining and nearby developments. When compliance with a DCP control cannot be achieved, an applicant must establish how they are meeting the objectives of the DCP. Ms Zieme states that this is important in ensuring a consistent approach to DAs across local government areas.
Ms Zieme was questioned about whether assessment of a DA needed to take into account special social factors in considering the conditions set out in development control plans. She stated that the applicants' DA did not include issues about disability, and this was not taken into account. She was asked about the respondent's DIAP and she agreed she was not aware of this at the time of the assessment. She said that the DIAP was not relevant to the assessment of DAs. She also said that the applicants' DA did not fall within the complying development provisions and, given the heritage issues, it was not able to be approved by the private certification process.
Ms Zieme said that the respondent undertakes a consultation process once a DA is lodged. She also said that applicants could take advantage of a council consultation process, which could be undertaken prior the lodgement of a DA, and ask for advice. In this process, planning officers engage in a consulting process and provide an applicant with a letter and advice outlining the planning issues. However, Ms Zieme also notes that applicants may get the benefit of general planning advice free of charge. She said that after a preliminary assessment is undertaken, planning officers will send a request for information, which starts the formal consultation process with applicants. The applicants did not make a request for pre-DA advice and consultation. She noted that if a DA was seeking accessibility access to a building, this would generally be noted in the DA as a "circle". This would need to be included in the statement of environmental impacts accompanying the application. Neither of these things were included in the applicants' DA. If a lift was to be included, this would need to be part of the DA and an applicant would need to address additional requirements, such as an access report.
The Tribunal was provided with a statement from Matthew Pearce dated 3 May 2024 and he also gave oral evidence. Mr Pearce commenced at the respondent in the role of General Counsel in October 2021. He was admitted to practice in 1996 and holds Master of Science and Master of Environmental Planning degrees from Macquarie University. He was asked to undertake an investigation into the complaint and he finalised a report dated 11 October 2023 on the basis of his investigations. Mr Pearce emailed the applicants on 24 July 2023 and advised that he expected the investigation would be completed within a month. GJE sent Mr Pearce an email on 1 September 2023 requesting an update in relation to his investigation. Mr Pearce responded on that day that the investigation was nearing completion, and it was his intention to have the investigation completed within three weeks. GJE was advised by email dated 25 September 2023 that the report was currently with the General Manager for consideration. By email dated 4 October 2023 GJE asked when the report would be provided and on 9 October 2023, she emailed the Mayor expressing disappointment with how her complaint had been managed and noting that she had lodged a complaint with the NSW Disability Commission and the NSW Ombudsman. The applicants were provided with a response by email dated 11 October 2023.
In his statement, Mr Pearce outlined searches that were undertaken concerning the alleged privacy breach. He noted that the letter from the applicants' consultant dated 12 May 2022, which referred to GJE's medical condition, was uploaded on to the respondent's planning portal and then posted on the respondent's DA tracker without any review of the content. Mr Pearce noted that in the declaration that accompanied the application, the consultant had consented to the public disclosure of the material relating to the DA.
Mr Pearce also noted that the applicants commenced proceedings against the respondent in the Land and Environment Court. The parties filed and served the relevant documents, being a statement of facts and contentions. Each party retained experts and, in November 2022, the experts attended joint conferencing for the purpose of preparing a joint report. The parties engaged in without prejudice conciliation conferences on 1 and 2 December 2022. As a result of these conferences there was an agreement reached on 2 December 2022. Mr Pearce was not involved in the conciliation conferences but was aware of the details of the settlement. He attached the relevant documents to his statement.
The Commissioner presiding over the conciliation conference at the Land and Environment Court delivered a judgement by forming a state of satisfaction of certain jurisdictional preconditions in respect of the appeal. A copy of the judgement dated 2 December 2022 is attached to Mr Pearce's statement.
The judgement notes that the Court has the power to determine the DA pursuant to ss 4.15 and 4.16 of the EPA Act. It was noted that amendments made to the DA reduced the extent of the upper floor addition so as to reduce the visibility of the addition from the public domain and also reduced the area of the garage at the ground floor to provide additional private open space. The presiding Commissioner was satisfied that each of the jurisdictional preconditions identified by the parties had been met. Relevantly, the presiding Commissioner noted that the proposed development complies with the applicable development standards for height and floor space ratio pursuant to the MLEP, the site on which the development is proposed is located within a heritage conservation area and, based on the amendments agreed, the Commissioner was satisfied that the proposed alterations and additions would not have an adverse effect on the heritage significance of the heritage conservation area in accordance with the consideration required by cl 5.10(4) of the MLEP. The presiding Commissioner noted the agreement between the parties and made orders that the appeal was upheld and that the DA was determined by the grant of consent subject to the conditions set out in the annexure.
Mr Pearce was asked why there was a delay in finalising the applicants' complaint. He said that it had taken several months because he not only reviewed the source documents but interviewed the planning officers and prepared a draft report to provide to the General Manager. Mr Pearce said he could not recall whether he became aware of the complaint to the ADB during the course of his investigation. He also said that he would not have considered that GJE's disability to be relevant to the refusal of the DA. He was asked whether he reviewed the comparators provided by the applicants. He said that he had not because it was not part of the complaint of 19 June 2023. He was aware of the respondent's DIAP but he did not consider that it was required to be considered as part of the planning assessment. He was aware of the model conduct code and the complaints handling policy, which he believed he had applied.
Mr Pearce was asked whether his knowledge that the applicants had made a formal discrimination complaint with the ADB influenced his conduct in dealing with the complaint. He denied that this influenced him and said that all he did was to investigate the complaint. It was his view that disability does not play a role in the DA process under s 4.15 of the EPA Act. The respondent's social policy is not part of the planning process.

Other Evidence

As already noted, the applicants provided letters from GJE's neurologist that she has had two relapses in 2023 following stressful encounters with the respondent in relation to the dispute with the respondent. GJE also provided a letter from Dr Lee Taylor, principal clinical psychologist, to confirm that GJE was currently a patient and was undergoing psychological care for the treatment of stress and depression. Dr Taylor states that the ongoing negative interactions GJE has experienced with the respondent and the subsequent court appeal caused significant ongoing psychological stress and anguish.
The applicants also provided copies of the legal and experts fees incurred by them in respect of the Land and Environment Court proceedings. It is claimed that these invoices are in the vicinity of $117,000.
The applicants provided copies of documents relating to what they considered to be comparators. Documents relating to eight DAs that were ultimately approved, with conditions, were provided. They were all in the same locality as the applicants' property and the cost of the works were in the range of $156,000 to $500,000. Most involved ground and first floor renovations and additions. The applicants' DA was more substantial, with the estimated cost just over $1.3 million. A summary of the alleged comparator applications follows: 1. The first application was lodged in August 2022 for ground and first floor alterations and additions. The estimated cost was $300,000. The application was approved after amended plans were submitted reducing the height and pitch of the roof. 2. The second application was dated 15 August 2021 and related to ground and first floor alterations. The estimated cost was $500,000. Revised plans were submitted in March 2022 dealing with heritage concerns that had been raised by the planning officers. It was noted that there was also a potential flooding issue on the site which needed to be taken into account in relation to the application. The concerns relating to overshadowing and solar access were considered to be acceptable after the relevant planner took into account a number of considerations. 3. The third application is dated 1 January 2023. The estimated cost was $400,000 for a ground floor alteration. Concerns were raised about solar access and overshadowing. The application did not comply, but it was said to be "acceptable" having regard to a number of other considerations that were taken into account and are set out in the assessment. 4. The fourth application is dated 11 February 2022 and it is the Wang application referred to in the evidence of Ms Ifield. The estimated cost was $300,000 and comprised a first-floor addition with a bedroom and ensuite and a new kitchen and bathroom configuration on the ground floor. The key issue was compliance with Part 2.18. The application was approved for the reasons outlined above. 5. The fifth application was a DA lodged on 13 August 2020. It is unclear why this application was included. 6. The sixth application was lodged on 18 June 2021 with an estimated cost of $252,000. The development proposed alterations to the ground floor and a first-floor addition. The respondent requested further information and amended plans were provided. It is noted that the first floor set back was increased so that the original roof form was retained. This development did not meet the private open space requirement, but it was considered to be acceptable based on lengthy analysis, contained in the assessment report, about overshadowing and solar access. 7. The seventh DA was an application made on 8 November 2018 with an estimated cost of $400,000 for ground floor and first floor alterations and additions. The report notes that amended plans were submitted during the assessment of the application to address various concerns raised. It was noted that the amended proposal generally complies with council planning controls and therefore the application was approved. The proposed work related to a new bathroom, laundry, living area and dining area on the ground floor with a new first floor containing two bedrooms and a bathroom. There was a new car space and landscaping area at the rear. In the assessment process, it is apparent that concerns were raised about heritage issues and the applicant made amendments to the proposal. It was noted that the amended plans satisfactorily incorporated the design changes requested by the council's heritage advisor. Issues were also raised in relation to overshadowing and solar access and, according to the report, after assessment of these matters it was considered that any overshadowing would be acceptable in the circumstances. There were also issues raised about landscaping and open spaces and the proposal was considered to be acceptable given the other issues raised about a car parking space proposed. 8. The final application included was an application that was determined on 30 May 2023 with an estimated cost of $380,000. The DA was lodged in March 2023 and the council issued a request for further information on 1 May 2023. The applicants submitted amended proposal and the application was approved subject to conditions. It is apparent that all of the issues raised by the council in its request for further information were resolved with the amended plans.

Outline of planning laws and guidelines

The EPA Act is an act to "institute a system of environmental planning and assessment for the state of NSW". The local planning authority for the local government area is authorised to make environmental planning instruments known as the local environmental plan (Division 3.4). Section 3.43 provides that the relevant planning authority may also prepare a development control plan to provide guidance to persons proposing to carry out development. Division 4.3 sets out the process for developments that need consent, except complying developments which are governed by the provisions in Division 4.5. Sections 4.12-4.18 set out the main steps in the development consent process.
Section 4.15 relevantly provides as follows: (1) Matters for consideration - general In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application - (a) the provisions of - (i) any environmental planning instrument, and (ii) any proposed instrument that is or has been the subject of public consultation under this Act and that has been notified to the consent authority (unless the Planning Secretary has notified the consent authority that the making of the proposed instrument has been deferred indefinitely or has not been approved), and (iii) any development control plan, and (iiia) any planning agreement that has been entered into under section 7.4, or any draft planning agreement that a developer has offered to enter into under section 7.4, and (iv) the regulations (to the extent that they prescribe matters for the purposes of this paragraph), (v) (Repealed) that apply to the land to which the development application relates, (b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality, (c) the suitability of the site for the development, (d) any submissions made in accordance with this Act or the regulations, (e) the public interest. (2) Compliance with non-discretionary development standards - development other than complying development If an environmental planning instrument or a regulation contains non-discretionary development standards and development, not being complying development, the subject of a development application complies with those standards, the consent authority - (a) is not entitled to take those standards into further consideration in determining the development application, and (b) must not refuse the application on the ground that the development does not comply with those standards, and (c) must not impose a condition of consent that has the same, or substantially the same, effect as those standards but is more onerous than those standards, and the discretion of the consent authority under this section and section 4.16 is limited accordingly. (3) If an environmental planning instrument or a regulation contains non-discretionary development standards and development the subject of a development application does not comply with those standards - (a) subsection (2) does not apply and the discretion of the consent authority under this section and section 4.16 is not limited as referred to in that subsection, and (b) a provision of an environmental planning instrument that allows flexibility in the application of a development standard may be applied to the non-discretionary development standard. (3A) Development control plans If a development control plan contains provisions that relate to the development that is the subject of a development application, the consent authority - (a) if those provisions set standards with respect to an aspect of the development and the development application complies with those standards - is not to require more onerous standards with respect to that aspect of the development, and (b) if those provisions set standards with respect to an aspect of the development and the development application does not comply with those standards - is to be flexible in applying those provisions and allow reasonable alternative solutions that achieve the objects of those standards for dealing with that aspect of the development, and (c) may consider those provisions only in connection with the assessment of that development application. In this subsection, standards include performance criteria.
Section 4.16 provides that a consent authority is to determine a DA by granting consent to the application, either unconditionally or subject to conditions, or refusing consent to the application.
Section 8.7 provides that an applicant for development consent who is dissatisfied with the determination may appeal to the Land and Environment Court against the determination.
There is no dispute that the relevant planning documents that apply to the applicants' DA were the MLEP 2011 (which became the IWLEP 2020 following amalgamation and was subsequently replaced by the IWLEP 2022) and the MDCP 2011. The MLEP 2011 establishes land use zones which include R2 Low Density Residential (cl 2.1). Part 4 sets out the principal development standards (that is, height, floor space ratio) and Part 5 sets out other miscellaneous requirements such as heritage conservation (cl 5.10). The MDCP 2011 came into effect soon after gazettal of the MLEP to guide development in line with the MLEP 2011. According to Part 1.1.7 of the MDCP 2011, the purpose of the DCP is to supplement the provisions of the relevant LEP (currently, the Inner West LEP 2022) and provide more detailed provisions to guide development. It is noted that under s 4.15 of the EPA Act, Council is required to consider the relevant provisions of the relevant DCP (in this case, the MDCP) when assessing a DA, but it also contains other matters that must be considered in assessing a DA.
Part 1.1.9 sets out the general aims and objectives of the MDCP. The applicants refer to one of the objectives, but all of the objectives should be referenced, which are as follows: The objectives of this DCP are: O1 To provide detailed design objectives and controls which encourage innovative design that positively responds to the character and context of the locality and which encourage high quality urban design outcomes. O2 To ensure future developments consider the needs of all people who live, work and visit the Marrickville LGA, including people with a disability. O3 To maintain and enhance the environmental and cultural heritage of the Marrickville LGA. O4 To enhance the quality of life and the wellbeing of the local community. O5 To support the integration of transport and land use, including increased residential and employment densities in appropriate locations near public transport, while protecting residential amenity; O6 To promote sustainable transport, i.e. reduced car use and increased use of public transport, walking and cycling; O7 To ensure that development considers the principles of ecologically sustainable development, in particular energy, water and stormwater efficiency, solar access, waste reduction and local biodiversity. O8 To ensure that development positively responds to the qualities of the subject site and is appropriate for the site and its context. O9 To minimise negative impacts of development on the amenity of surrounding neighbourhood. O10 To provide guidelines for specific development types and development sites to ensure appropriate high quality development within the Marrickville LGA.
Part 1.1.11 'Compliance with the controls and objectives' provides: Before granting consent for development Council must consider: • All applicable requirements of Inner West LEP 2022; • The objectives of this DCP; • Compliance with the generic provisions (objectives and controls) contained in Part 2 of this DCP; • Compliance with the relevant objectives and controls in Parts 3 to 8 of this DCP; and • Compliance with any precinct or site specific controls in Part 9 of this DCP. Compliance with a development control does not guarantee that the objectives and performance criteria of the DCP are satisfied. In some instances, the design solutions may not be appropriate for the particular site or situation. Therefore, having regard to the physical characteristics of the site and the nature and proximity of adjoining and nearby development, Council may require alternative design solutions. The controls in this DCP may not normally be varied. However, if an applicant is able to clearly demonstrate that a particular control is unreasonable or unnecessary in the circumstances and that the objective of the control is satisfied, Council may consider waiving or varying the control. Conversely, having regard to the physical characteristics of the site and the nature and proximity of adjoining and nearby development, Council may require a more restrictive control so as to minimise or eliminate any likely negative impacts.
Part 1.1.13 'Variation to development controls in the DCP' provides: This DCP relies upon the satisfaction of objectives and compliance with development controls and best practice guidelines to shape development outcomes. It aims to allow flexibility in the application of such development controls where strict compliance with the controls is unreasonable or unnecessary. In special circumstances, flexibility can produce improved and innovative solutions for particular sites. Variation to development controls will only be considered where written justification for each variation request demonstrates why the development control is unreasonable or unnecessary in the circumstances and that the objectives of the development control have been achieved. Any written variation request must: 1. Identify the development control subject of the variation request; 2. Identify the general and/or specific objectives of that control; 3. Justify why the specific provisions of the policy do not make appropriate provisions with regard to the subject application; and 4. Demonstrate why compliance with the provisions of this DCP is unreasonable or unnecessary in the particular circumstances of the case. The fact that existing development may not comply with one or more of the development controls does not necessarily mean that the development control is unreasonable or unnecessary when applied to future development. Council may use its discretion to consider a variation to the development controls contained in this DCP, particularly for proposed alterations and additions to an existing building or structure, where Council believes the proposed development is consistent with the objectives of the zone as contained in Inner West LEP 2022 and the relevant objectives of this DCP.
Part 2 sets out the generic provisions that apply to development.
Relevant to the contentions made by the applicants in this case, Part 2.5 'Equity of access and mobility' provides: This section of the DCP provides minimum standards for access to buildings and spaces. The DCP seeks to provide equitable and dignified access for all people, including people with a disability, by providing a continuous accessible path of travel through the built environment. An accurate identification of the number of people with a disability in the community is difficult; however, it is generally accepted that some 20%1 of any population is likely to have a disability of some kind. With buildings constructed in the late 1800s and early 1900s, many parts of the Inner West LGA are relatively inaccessible. New buildings and spaces, and existing buildings and spaces being altered or used in a new way, must be made accessible for people with a disability.
Part 2.5.3 provides: C1 When assessing a development application Council must take into account the following matters as relevant to the application: i. The provision for ease of use and comfort through appropriate gradients, rest areas, circulation space and user friendly entrances; ii. Safety measures, including contrasting colours for points of danger, slip resistant travel surfaces and appropriate positioning of street furniture, public art installations, signage or any other obstacles, including those in the public domain; iii. Legible design and way finding features, such as signs and international symbols and indicators, to assist in determining the location of handrails, guard-rails and tactile indicators where relevant; iv. Opportunities for access through principal entrances of commercial buildings, public buildings and residential flat development; v. The retention or improvement of existing accessible features; and vi. The extent to which development may compromise or reduce the capacity for accessible features in future development.
Part 2.5.4.1 notes that the Commonwealth government has developed a nationally applicable set of technical standards called the Commonwealth Disability (Access to Premises - Buildings) Standards, referred to as the "Premises Standards". The Premises Standards apply to certain premises, including new buildings or an existing building with four or more bedrooms used for rental accommodation. The premises standards do not apply to freestanding private dwellings, residential flat buildings approved for construction before a certain date or class 4 dwellings. It is further noted that for change of use applications and applications involving existing buildings, only the new extension or modified part of the building are affected by the premises standard, if development or building approval is required.
Table 1 in Part 2 sets out the minimum access requirements. It is noted that there are no requirements for attached dwellings or dwelling houses but, in relation to other buildings, there are requirements about adaptable housing, general access requirements and accessible parking. These provisions appear to be aimed at providing additional obligations on applicants about these matters rather than being directed towards general principles of relaxing other planning rules to promote disability and "universal housing design principles" more generally.
As already noted, the applicants contend that these provisions imposed a positive obligation on the respondent to accept non-compliance with the disputed Conditions 12 and 22 to take into account GJE's disability and the progressive nature of her illness. The respondent disputes this interpretation of the development controls and our analysis of this is set out later in our reasons.
Part 2.18 'Landscaping and open spaces', which includes one of the conditions with which the applicants did not comply, relevantly provides at 2.18.11.1: C12 Private open space i. The greater of 45m2 or 20% of the total site area with no dimension being less than 3 metres, must be private open space. ii. A minimum 50% of private open space must be pervious.
Part 8 deals with heritage conservation issues for the local government area and provides: Part 8 of this DCP is to be used for any proposed development or works affecting heritage cultural resources. It incorporates basic principles which assist in maintaining and enhancing the integrity of heritage in the Marrickville Local Government Area (LGA). Part 8 applies to heritage items, heritage conservation areas (HCAs), archaeological sites and Aboriginal heritage. The main aim of identifying heritage items and HCAs is to recognise and maintain the significance of those items and areas. This does not mean development is necessarily limited or cannot occur, but means any changes should respect the existing built environment and any identified heritage significance. In many cases development consent will be required unless the work is identified as minor under the controls of Part 8 of this DCP or is exempt development. The Marrickville LGA is fortunate to retain a large number of heritage buildings which help to define its character. The most significant of these are registered on the State Heritage Inventory while others such as local items are controlled by the provisions of Marrickville Local Environmental Plan 2011 (MLEP 2011).
Part 8 is extensive and is 234 pages in length. Part 8.3 defines particular Heritage Conservation Areas, including the applicants' street. Condition 22, which was one of the contentious conditions, provides, under the heading 'Controls common to all residential HCAs', as follows: C22 Existing original roof forms (and, where possible, materials) must be retained to the front elevation and for the length of the main roof to the side elevations.
The Inner West Council Inclusion Action Plan for People with a Disability 2017-2021 (DIAP) is not a document created by reference to the planning legislation or instruments, however the applicants contend that there was an obligation on the respondent to consider the DIAP when determining their DA and the failure to do so was, or evidenced, unlawful discriminatory conduct on the ground of disability. The respondent contends that the DIAP is not directed, or relevant, to planning determinations.
This is a contentious issue in the proceedings and so it is relevant to outline the provisions of the DIAP. The DIAP has been variously referred to in the submissions and in the evidence in earlier parts of these reasons as the Disability Inclusion Plan, the Disability Inclusion Policy, the Disability Inclusion Action Plan or the Disability Inclusion Plan 2017-2021. We accept that these are all references to the DIAP and that it was in operation at the time of the determination of the applicants' DA. It should be noted that there is a new DIAP for the current period.
According to the Executive Summary of the DIAP, p 9: The Inner West Council is committed to an inclusive and accessible local government area that provides improved and equitable opportunities for all persons living with disability to access the full range of services and activities available in the community and to participate fully in the community. The Inclusion Action Plan (for People with a Disability) 2017-21 outlines the steps Council will take over the next 4 years to support and improve the inclusion of people with a disability as part of its core business, and to remove barriers to access and participation, including any discrimination based on disability. The Action Plan also gives expression to Council's commitment to uphold and promote the United Nation's Convention on the Rights of Persons with Disability.
The key objectives are listed and none of the objectives specifically referred to instruments or legislative requirements in relation to planning. The DIAP focuses on consultation and communication and awareness about disability issues and consulting and creating better access to pathways, roads and other local government facilities. The DIAP speaks of, for instance, improving access to the council's educational, recreational and social services and programmes for people with disability, improving information availability about the accessibility of parks, community facilities and social, recreational and educational services and programmes, and seeking input form people with a disability about accessibility and amenity in the public streets. The DIAP also recognises the importance of developing and embedding universal design principles into planning controls but it is clear that this is about considering disability when developing controls, not about interpreting and implementing existing controls. For instance, strategy 4.2.1 provides: Develop planning controls to advance universal design principles and their application within capital works, relevant private and public developments, including the need for independent access consultants at both the design and implementation phases.
Strategy 4.3, which the applicants rely on, is: Continue to advocate for universal design principles for housing developments in Inner West LGA.
The actions under this strategy focus on affordable and liveable housing and 4.3.3 provides: Develop Council policy on encouraging affordable and universal designed housing, including best practice ratio requirements for liveable housing provision in new developments.
In our view, encouraging "universal designed housing" does not mean approving non-compliance with MLEP 2011 and MDCP 2011 beyond the parameters already envisaged for deviation from the planning controls as set out in those documents. In other words, the DIAP is a policy document but does not prevail over legislation, including state planning laws and legislative instruments.

Findings

This is not a case where there are contentious issues about credit. We accept the evidence of GJE that she genuinely believes the respondent has discriminated against her in the way in which it has determined the applicants' DA and the way in which the applicants' complaint was managed. Much of the evidence in this case is based on documentary material that has been filed.
We also accept the evidence of the respondent's witnesses, Annalise Ifield and Kaitlin Zieme, about the steps they took, the rationale for their decision making and, generally, their opinion about the operation of the relevant planning instruments and requirements. These matters are substantiated by the documents filed and by reference to the planning legislation and instruments summarised earlier in these reasons. We also accept the evidence of Matthew Pearce, General Counsel for the respondent, about the process he employed in investigating the applicants' complaint.
We accept that GJE has a disability that may, in the future, require mobility aids. We accept the testimony of GJE that GKA is her carer and that he is a close relative or associate for the purposes of s 49B of the ADA.
We accept that the applicants lodged a DA for renovations and additions to their property and they did this through an expert consultant. The renovations and additions were substantial and involved increasing the built form of their residence from 117 to 212 square metres. At the time the DA was lodged, there was no reference to GJE's disability, the need to accommodate her mobility needs in the future, or the potential future need for a lift. There is no dispute that the applicants' property is in a heritage conservation area and that specific planning controls applied to such properties in the Inner West local government area at this time, including in the applicants' street. There is also no dispute that MLEP 2011 and MDCP 2011 applied to the applicants at the relevant time.
We accept that the respondent, specifically Annalise Ifield, who was responsible for assessing the application, sent a request for information to the applicants on 14 April 2022 based on concerns about the DA. Those concerns raised multiple issues, including concerns about heritage and design, built form, solar access and overshadowing and private open space. The issues raised related to MDCP 2011 and were raised before Ms Ifield was aware of GJE's illness.
The applicants' consultant responded on 12 May 2022, raising an issue about GJE's disability and the potential need for a lift in the future. At no stage did the DA include designs for a lift, accommodation to include a lift in the future, or references to a lift, which would have required the consideration of other planning requirements.
We find that during June 2022, the respondent met with the applicants and their consultant, on several occasions and allowed amendments to, or the opportunity to amend, the applicants' plans in an attempt to resolve the respondent's planning concerns. At this stage, the most contentious issues in dispute regarding the DA appeared to focus on the first-floor addition set back and the roof form and the private open space. While there were other conditions and objectives that were found to be non-compliant, the applicants primarily objected to Condition 12, Part 2.18 (private open space) and Condition 22, Part 8.3.2.6 (roof form), which it is alleged constituted indirect discrimination.
We find, and this is not in dispute, that the applicants' DA did not comply with these conditions.
The applicants commenced proceedings in the Land and Environment Court and a compromise settlement was agreed which involved the approval of amended plans. The applicants were successful in obtaining concessions in relation to Condition 12, Part 2.18 (relevantly, the respondent accepted plans with a private open space of 47.47 square metres). There were also changes made to the roofline and the built form, particularly in relation to the study, which was resolved by a compromise with a pop out in the first-floor addition, and which resolved Condition 22, Part 8.3.2.6.
We find that the judgement of the Land and Environment Court represented a negotiated settlement of the disputes between the applicants and the respondent in relation to the application of the planning legislation and instruments. The presiding Commissioner upheld the appeal in relation to amended plans, having regard to s 4,15 of the EPA Act. There were no claims made about the application of the respondent's DIAP, the application of Part 2.5 of MCDP 2011, or unlawful discrimination on the basis of disability.
In summary, many of the facts alleged are not in dispute. Despite this, and having regard to the evidence before us, there are a number of critical matters alleged in respect of which the applicants base their claims that we are not satisfied have been established.
We note that while the applicants do not allege direct discrimination in relation to the refusal of their DA, they do allege indirect discrimination and provide evidence of comparators and submissions in support of this claim.
We find that there is no evidence that Annalise Ifield or Kaitlin Zieme refused the DA, or that they imposed conditions or required compliance with conditions on the DA, on the basis of GJE's disability or GKA's association with her as a carer or relative. The evidence in this regard is consistent with our analysis of the documentary records, including the correspondence between the parties.
In regard to indirect discrimination, the applicants did not specifically identify the relevant pool for the purposes of assessing whether there has been indirect discrimination. However, the evidence provided by the applicants suggests that the group of residents they raised as potential comparators would be residents living in the Inner West local government area in the same or a similar heritage conservation area, who have submitted a DA and who do not have GJE's disability.
There is no evidence that a significantly higher portion of persons in this pool who do not have GJE's disability could comply with the disputed planning Conditions 12 and 22. The evidence provided by the applicants suggests that the residents in their proposed pool submitted DAs that did not comply but were able to amend their plans to achieve compliance or acceptable non-compliance. We have no information before us about the process for approval for those residents and whether, for instance, any of the potential comparators proposed by the applicants achieved their DA outcomes by engagement with planning staff and/or amending their DAs. There is also insufficient detail, and no expert evidence, to support the contention that those DAs are comparable or that the individuals did not have a disability. A cursory review of the applications suggests that the DAs may not be comparable.
The applicants contend that approval of these DAs demonstrates that the respondent took a differential and more reasonable approach to those residents in the proposed pool. Yet the applicants do not allege direct discrimination. The basis for the applicant's claims, and why these DAs are said to be comparators, is not entirely clear. The applicants seem to allege that the respondent treated them unfairly compared with other applicants. We are not satisfied that there is a causal link between the decision made to refuse the application and GJE's disability as there is no evidence to support this contention. The question of whether the respondent applied the planning development controls consistently is another issue. We are not satisfied, in any event, that this latter allegation is made out on the evidence before us.
In this respect, the evidence provided by the applicants supports a finding that the respondent considered each of the applications on their merits and that planning officers took into account different planning principles in making an assessment in relation to each application. This is also consistent with the evidence of the respondent's witnesses, who stated that consideration of MDCP 2011 was made by reference to the merits of the application and the features of the property and not by reference to the characteristics of individual applicants. Specifically, we accept that the respondent staff did not treat the applicants' DA either more, or less, favourably because of GJE's disability.
The applicants contend that the respondent was required to have regard to Part 2.5 of MDCP 2011 and the respondent's DIAP. The evidence of the respondent's witnesses, who we accept as experts in relation to planning issues, is that Part 2.5 does not, and did not at the relevant time, apply to the applicants' DA. They also gave evidence that the DIAP is not a relevant consideration in the determination of DAs. Both planners stated, and this is consistent with our review of the planning legislation, instruments and guidelines, that these documents are not relevant to planning decisions and, if they were to be taken into account, would be an irrelevant consideration under s 4.15 of the EPA Act.
We accept these opinions and find that the planning legislation and instruments set out the grounds for the determination of DAs. There is discretion to accept variations, however this must be exercised in accordance with the relevant planning rules. Planning officers cannot have regard to considerations other than those set out in section 4.15 of the EPA Act. We are not satisfied that the failure to take into account the respondent's DIAP was contrary to the planning requirements or, conversely, that it was required. Part 2.5 is a relevant planning provision which speaks of access and mobility. However, when these provisions are examined in their entirety, it is apparent they are focussed on accessibility and mobility more generally and do not provide an independent basis to overcome non-compliance with other specific provisions of MDCP 2011. Part 2.5 also makes clear that the legislative context for the access and mobility provisions is the Commonwealth Disability Discrimination Act (DDA) and the Premises Standards created under the DDA. The Premises Standards do not apply to free standing private dwellings (Class 1a) such as the applicants' home. We also note that the application of Part 2.5 was not a ground put forward by the applicants in the proceedings before the Land and Environment Court.
In relation to the handling of the applicants' complaint, we are not satisfied that there is evidence to establish that Mr Pearce dealt with the complaint in a manner that was less favourable to other complainants based on GJE's disability, or the fact that GKA was a relative or that he was GJE's carer. Mr Pearce says he cannot recall if he was aware that the applicants had made a complaint to the ADB when he completed his investigation. We accept his evidence. He also says that he dealt with the applicants' complaint by reviewing the documents and interviewing the relevant planning officers. He concluded that the officers had followed the planning requirements. This conclusion was open to him and there is nothing before us to suggest that Mr Pearce came to this conclusion on the basis of GJE's disability.
The complaint took over three months to finalise, which we accept is somewhat delayed, however we are not satisfied that his handling of the complaint evidenced unlawful discrimination. We are also not satisfied that Mr Pearce should have interviewed the applicants as part of his investigation or that his failure to do so was discriminatory. The relevant information available to him to resolve the complaint were the documents lodged and the correspondence between the applicants and the respondent. To the extent that Mr Pearce needed to understand the decision-making process and reasoning of the planners, it was reasonable for him to clarify these matters through interviewing the planning officers. This is not a case where the applicants were alleging that the planners had been abusive, rude or corrupt. Rather it was a case where it was alleged that they had applied the planning principles unreasonably or in a discriminatory manner.

Consideration

At the hearing, the parties provided oral submissions and were directed to provide any further written submissions after the hearing in accordance with a timetable.
The applicants provided written submissions on 31 July 2024. The essence of their submissions is that because of GJE's mobility disability arising from MS it is, and was, more difficult for the applicants than it is, or was, for a substantially higher proportion of persons who do not have that disability, or do not have a relative who has that disability, to comply with Condition 12 of Part 2.18 and Condition 22 of Part 8.3.2.6 of the MCDP 2011. It is alleged that the requirement to comply with these conditions was not reasonable having regard to the circumstances of the case. In this regard, the applicants rely on the respondent's own statement in the DIAP that approximately 4% of the population in the Inner West local government area reportedly needed help in their day-to-day lives due to disability. The applicants asserted that the respondent had discretion to amend or adjust compliance with the planning conditions and its failure to do so was unlawful discrimination on the ground of disability and this was an erosion of their human rights as outlined in Articles 9 and 19 of the United Nations Convention of Rights for People with a Disability (UNCRPD).
The respondent objects to those parts of the applicants' submissions that make assertions of fact not supported by evidence, namely that GJE will need the assistance of a mobility aid, that it is harder for the applicants to comply with certain conditions than it would be for a substantially higher proportion of persons in the Inner West local government area, that a substantially higher portion of persons in the Inner West local government area do not have GJE's disability and therefore do not need to accommodate space to adapt their homes to manoeuvre around with a mobility aid, that GJE needs a certain kind of housing, that the applicants could not comply with the conditions imposed, that the applicants would have been forced to move out of their home to accommodate a mobility aid, that the conditions imposed in the DA were not reasonable, and that the applicants were required to undertake the costs and experience the stress of commencing the proceedings in the Land and Environment Court to avoid these issues. The respondent submits there is no evidence of direct or indirect discrimination and denies that the DIAP or the UNCRPD are relevant to the laws governing planning determinations.
We accept that, insofar as the applicants make assertions of fact in their submissions, any findings made by the Tribunal must be supported by relevantly and logically probative material, and at a practical level the applicants must provide sufficient material to satisfy the Tribunal about those matters. We have outlined our findings of fact above after considering the written submissions, and our consideration of the matters in dispute is based on those findings.

Breach of privacy claim under the HRIPA

GJE asserts that the respondent has breached her rights to privacy under the HRIPA.
The HRIPA provides protections for the privacy of an individual's health information that is held in the public and private sectors. The HRIPA provides an accessible framework for the resolution of complaints regarding the handling of health information. The respondent submits that the Tribunal does not have jurisdiction to deal with this claim because the applicants have not first made an application to the Privacy Commissioner under s 42 and the complaint has not been the subject of inquiry and report under s 47 of the HRIPA. Section 48 provides that an application can be made to the Tribunal in respect of complaints against private sector persons.
We reject this submission. The respondent is a public sector agency and, as such, Part 6 of the HRIPA, and relevantly s 48, does not apply. However, this complaint relates to alleged wrongful disclosure of health information. Section 21 of the HRIPA provides that contravention of a health privacy principle that applies to the public sector agency (which includes the unauthorised disclosure of health information) is conduct to which Part 5 of the Privacy and Personal Information Act 1998 (NSW) (PPIPA) applies. Part 5 of the PPIPA sets out the process for the review of complaints, which involves internal review on application by the person who alleges breach of privacy, notification by the Privacy Commissioner and review by the Tribunal under s 55 of the PPIPA. None of these steps have been taken by the applicants. The Tribunal, therefore, does not have jurisdiction to deal with this claim.
If the applicants wish to pursue this claim, they may do so through the appropriate processes, although we note the respondent denies the breach for the reasons outlined in the investigation report dated 11 October 2023. We have, however, made no findings in relation to this claim, and it is dismissed.

Did the respondent provide "services" to the applicants for the purposes of the ADA?

The applicants identify the services in respect of which unlawful discrimination is alleged as being the assessment and decision made in relation to their DA. The particulars of the alleged contraventions are set out in paragraph 14 of the applicants' points of claim. The applicants do not identify the services provided in respect of the complaint.
The respondent submits that it was not providing goods or services for the purposes of section 49M of the ADA and, as such, it did not engage in conduct of the kind captured by section 49M(1)(a) or (b).
The respondent refers to the High Court decision in IW v City of Perth [1997] HCA 30; 191 CLR 1, where the majority (Brennan CJ and Dawson, Gaudron, McHugh and Gummow JJ) dismissed an appeal against a decision of the Full Court of the Supreme Court of Western Australia, which had overturned the findings of the WA Equal Opportunity Tribunal that the local council had contravened provisions relating to wrongful discrimination on the grounds of impairment. In that case, the council had refused planning approval for the use of premises to be used by an association for persons infected with HIV for a trial period. Toohey and Kirby JJ, for different reasons, allowed the appeal. All opined on the meaning of "services" for the purpose of the relevant anti-discrimination legislation and, relevantly, on whether refusal of the planning approval came within the meaning of "services".
The respondent submits, relying on the decision of Brennan CJ and McHugh J, that where the council is required to act in a quasi-judicial role and is exercising a statutory power or duty, it may be inappropriate to characterise the process as the provision of "services". The respondent also relies on the decision of Dawson and Gaudron JJ who, while accepting that the word "services" has a wide meaning and would extend to include the administration and enforcement by the City of the planning scheme, found that it was in error for the Tribunal to hold that in exercising a discretion to give planning approval, the council refused to provide a service. Their Honours found that where the service identified was the exercise of the discretion to grant or withhold planning approval, a refusal to provide that service was not established by simply showing there was a refusal to grant planning approval.
The respondent submits that the identification of the service provided is a question of fact for the Tribunal and whether an activity constitutes the provision of services is one of characterization. It is further submitted that it is necessary for the applicants to identify with sufficient precision the relevant services (Waters v Public Transport Corporation [1991] HCA 49; (1992) 173 CLR 349 at p404).
The respondent relies on the decision in State of NSW v Whiteoak [2014] NSWCATAP 99 where the Appeal Panel (President Wright J, Senior Member Prof Chesterman and General Member Dr Field) found that if a government or functional statutory duty is being performed and the persons affected have no ability to decide whether to accept or reject what is done or the outcome, it is unlikely that services were being provided.
The respondent contends that in the present case, it was performing a statutory function under Division 4.3 of Part 4 of the EPA Act. Section 4.12 requires a person to apply to a consent authority for consent to carry out a development. The respondent is a consent authority for the purposes of the EPA Act. Section 4.15(1) of the EPA Act sets out the respondent's tasks in determining a DA and what it is to take into account. This includes the public interest. Section 4.15(3A) details how the respondent must approach a development control plan. Section 4.16 deals with the determination of the application.
The respondent submits that it was not providing services because it was required to, and did, act in a quasi-judicial role in exercising a statutory power or duty in which it was required to consider the public interest. The refusal of the application was the end product of a deliberative process. The respondent was performing a statutory duty, and the applicants did not have the ability to decide whether to accept or reject the outcome. The outcome of the deliberative process was one which was imposed on, rather than made available to, the applicants.
The respondent further submits that, even assuming the respondent was providing a service, it did not refuse to provide any service of assessing and determining the application and, as such, there was no refusal for the purposes of s 49M(1)(a). The respondent did not discriminate in the terms on which the alleged service was provided, and it therefore did not contravene section 49M(1)(b). Even if there was a breach, the respondent has the protections set out in s 54 of the ADA because its officers where exercising statutory functions.
In response, the applicants submit that the respondent was providing a service, being a service to the applicants whereby the respondent received a DA, accompanied by an application fee, and the service was to consider their application. The respondent may charge fees for services, including giving information and providing a service in connection with the exercise of the respondent's regulatory functions which includes receiving an application for approval, making an inspection, granting an approval and issuing a certificate. The applicants also note that the complaints handling policy of the respondent characterises the process where a resident seeks approvals, such as development consent or tree permits, as a service request.
In Whiteoak, the Appeal Panel considered a complaint made by a prisoner, who alleged discrimination on the grounds of his race by the Commissioner of Correctional Services in making a number of decisions relating to classification and development programs. The threshold question for consideration was whether the classification of inmates was providing "services" within the meaning of the ADA.
The Appeal Panel observed that in IW v City of Perth, the High Court held that the inclusive definition of services should be read as having its ordinary and broad meaning. The Appeal Panel noted that the definition in the Macquarie Dictionary (online edition) gives a definition in the singular which includes "an act of helpful activity" and "the providing of, or a provider of, public needs such as communications, transport etc". According to the Appeal Panel, the heading of the relevant section, in this case s 19 (which is in similar terms to s 49M), is expressed as the "provision of goods and services" and this suggests that services will not, in this context, include activities in discharge of government functions or statutory duties which do not have as their primary or sole function meeting the needs of consumers (at [153]). While the Appeal Panel noted that when services are provided the person to whom they are provided receives a benefit, it does not follow that in every case where activities happen to result in a benefit to a person those activities must amount to services provided to that person. Thus, the Appeal Panel concluded at [160] as follows: Having regard to all of these matters, it can be concluded that the specific area of social activity identified by s 19 (insofar as it refers to services and not goods or public access) is where the alleged perpetrator (whether for payment or otherwise) makes available to the class of persons to which the aggrieved person belongs activities to supply the needs of, to do work for, or to assist or help that class of persons. When a governmental function or statutory duty is being performed for a purpose other than benefitting the relevant person and any outcome is imposed on, rather than just being made available to, that person, it is unlikely that this amounts to "services" being "provided". Subject to any contrary requirement or approach in the authorities, providing "services" should be construed accordingly.
The Appeal Panel considered the judgements in IW v City of Perth and found that - even though the majority dismissed the appeal and did not agree on the construction and application the word "services" - the reasons and conclusions were not inconsistent with the Appeal Panel's general conclusion about the construction and operation of s 19 of the ADA, as outlined above. The Appeal Panel noted that Brennan CJ and McHugh J held that as wide as the definition of services was, it was not capable of including the refusal to exercise the statutory discretion provided for under planning legislation to approve the use of premises for use other than as a shop. The Appeal Panel refers to pp17 and 18 of the judgement as follows: …But not every process or activity which results in a benefit or advantage to an individual is a service that is provided to that individual. When the deliberative and quasi-judicial nature of the application process is identified and analysed, it cannot sensibly be described as a "helpful activity" provided by the Council to applicants for planning approval. The Council is an adjudicator, not a servant of an applicant.
The Appeal Panel noted that Dawson and Gaudron JJ took a slightly different approach, concluding that the relevant service was the exercise of the planning approval discretion and, at p24: Once the service in issue is identified as the exercise of a discretion to grant or withhold planning approval, a case of refusal to provide that service is not established by showing that there was a refusal of planning approval. Rather it is necessary to show a refusal to consider whether or not approval should be granted.
Because the Council had considered and refused the application, it was not possible to conclude in that case that there had been refusal to provide the services in question.
The Appeal Panel also referred to the judgement of Gummow J, who also dismissed the appeal, at p44: The question arises whether the circumstance that, in dealing with applications for approval, the Council, as responsible authority, exercises its statutory functions and duties under the town planning law has the consequence that the Council is not also engaged in the provision of services to applicants within the meaning of the anti-discrimination legislation. An issue of characterisation is involved. Each statute operates in aid of particular ends considered important by the legislature. There is no reason in logic or good sense to deny the proposition that the Council may be engaged in the provision of services, not only to the community as a whole, but also to individual applicants who invoke the exercise of the powers of the Council under the town planning law. There is no dichotomy here between the discharge of statutory functions and the provision of services to those seeking the discharge of these functions. (footnotes omitted).
In drawing on the reasons of the majority of the High Court in IW v City of Perth, including observations made by Gummow J, the Appeal Panel found, at [174]: Whether in a particular case, however, there is such a duality of purpose and while discharging a statutory duty the public authority is also providing services must turn on the particular circumstances of the case.
The Appeal Panel concluded at [217] that when considering the proper construction of providing services for the purposes of s 19 of the ADA, the following matters were relevant: (1) providing "services" to a person involves making available to the class of persons to which the aggrieved person belongs activities to supply the needs of, to do work for, or to assist or help that class of persons; and (2) when a governmental function or statutory duty is being performed for a purpose other than benefitting the relevant class of persons and any outcome is imposed on, rather than just being made available to, that person, it is unlikely that this will amount to "services" being "provided" in the relevant sense.
The Appeal Panel ultimately found that the classification of inmates for the purposes of the correctional centre could not be characterised as providing a service to those inmates being classified because conferring on an inmate a benefit about a favourable classification was not the purpose for which the activity was undertaken. Any benefit that might arise out of being classified at a certain level was contingent and consequential. While discharging a statutory duty can coexist with the provision of services, the Appeal Panel held that the classification of inmates is not such a case. Benefit or help to the inmate was not part of the purpose of classification and the primary function of classification was maintenance of security.
This issue was considered by the Tribunal in Weldon-Bowen v Commissioner of Police, NSW Police Force [2024] NSWCATAD 71. In that case, the applicant complained about the way she was treated by the NSW Police Force when she made a complaint of criminal conduct and sought the assistance of NSW Police Force in protecting her and her child from injury and protecting her property. The complaint related to the conduct of a bike rider she had interacted with on the road that morning. She alleged that the NSW Police Force discriminated against her on the ground of her race and/or her gender by refusing to provide her with the service of properly investigating her complaint. She also alleged that unlawful discrimination occurred in the terms on which she was provided with those services by police.
The Tribunal found that, in the circumstances of that case, the NSW Police Force was providing a service to the applicant in carrying on an investigation into the complaint made. The Tribunal was satisfied that NSW Police Force had refused to provide the applicant with the service, which was an investigation of a complaint, in circumstances where she was seeking protection as a victim of violence. However, the Tribunal was not satisfied, again on the facts of the case, that there was unlawful discrimination. Notably, the Tribunal was not satisfied that the investigation did not proceed because of a reason that was a proscribed ground. While the Tribunal found the police officer in question did not manage the complaint competently, it was not satisfied there was evidence, or that it could be inferred, that the reasons for this related to the applicant's race and/or her gender.
The Tribunal also considered IW v City of Perth, noting that the majority, including Toohey and Kirby JJ, who dissented on the outcome, found the Council was providing a service. The Tribunal's summary of the decision at [180]-[181] provides a helpful overview of the various judgements, particularly given the relevance of this decision to the subject matter of the current dispute.
As noted by the Tribunal at [180], Dawson, Gaudron and Gummow JJ found that the service provided was the act of considering the application, namely that the Council was providing a service by exercising a discretion to grant or withhold approval, and the Council may discriminate by refusing to exercise the discretion at all or by imposing terms or conditions or by exercising the discretion in a particular manner that was discriminatory. The Tribunal noted (at [180]) that Toohey J found the consideration and disposition of the application was a service, and it is the disposition of the application which either provides or refuses the service. According to the Tribunal, Kirby J found that the service was not the consideration but the decision (at [180]). The Tribunal also noted, as in Whiteoak, that Brennan CJ and McHugh J, who were in the minority on this point, concluded that the council in exercising its discretion to determine whether or not to grant planning permission, was acting as a deliberative body and did not perform a service (at [181]).
We agree with the Tribunal's analysis of the various judgments of the High Court in IW v City of Perth. We also note that Dawson and Gaudron JJ found that refusing to grant the approval does not establish refusal to provide the service. Gummow J agreed but further stated that the manner in which the council went about its task with respect to the premises involved discrimination within the sense of the Act. This was not, however, the end of the matter and Dawson, Gaudron and Gummow JJ found that the appellant was not an aggrieved person because the appellant was not actually the person who suffered the impairment.
In summary, the majority of the High Court found that the council was providing a service when considering planning applications. We also note that Kirby J expressly rejected the notion that the services being provided by a local government body should be narrowly construed for the purposes of anti-discrimination legislation as services provided for libraries, recreational and parking facilities, transport and the like where the council was not undertaking a quasi-legislative evaluative decision making required by the law in performing its functions.
The respondent contends that the narrower construction of services, as adopted by Brennan CJ and McHugh J, should apply.
In the absence of a recent clear authority directly on this issue, we have followed the approach of the majority in the High Court in IW v City of Perth who found that a council exercising discretion in relation to planning approval was providing a service for the purposes of the relevant anti-discrimination legislation (which is in similar terms to the ADA), even though it was exercising quasi-statutory functions. The difference between IW v City of Perth and Whiteoak is that the decision-making by the Commissioner of Corrections was solely for security purposes and the outcome was imposed. There was no discretion or duality of purpose.
In the case where residents in a local government area apply for development approval, they do so based on their needs and their personal choices about how they wish to use their land. When a resident applies for development approval, the council must consider the application but there is still an element of discretion in the process - first, because the resident is making a decision to seek approval for a change in their property and, second, because the council, after applying the relevant planning instruments, has some discretion to approve, refuse or approve with conditions. This is not a case, as in Whiteoak, where an outcome is imposed rather than being made available to the person. It is relevant that there was no statutory requirement on the Council to give development approval in relation to the property in question in the absence of the application from the applicants, and the applicants were at liberty to withdraw their application at any point up until a decision was made.
In our view, there is a duality in the purpose and process of a DA. The council is considering the application at the request of the resident and is providing advice as part of the process, even when the resident has not engaged the council in the pre-lodgement consultation process. The fact that a council is applying statutory criteria and is undertaking a statutory function does not deprive the approval process of its status as a service for the purposes of the ADA. This is consistent with the express inclusion of "services being provided by a council or public authority" in s 4(e) of the ADA and the strongly worded judgements of the majority in IW v City of Perth about the intended breadth of the disability discrimination provisions.
We therefore find that the respondent was providing a service to the applicants in responding to the DA.
On the issue of the applicants' claim that the respondent discriminated against them on the ground of disability in handling their complaint about the determination of the DA, we consider that this is analogous to the complaint in Weldon-Bowen v Commissioner of Police, NSW Police Force. The complaint to the respondent about the service provided by the respondent in relation to the DA, is a request for a service - namely, it is a request for a public authority to consider and respond to issues raised about the exercise of its statutory functions. In responding to the complaint, the respondent provided a service. There is no suggestion that in responding to the complaint the respondent was exercising quasi-judicial power. Alternatively, responding to complaints about the provision of a service may be considered as ancillary to the original service. We are, therefore, of the view that the respondent's response to the complaint was a service from initiation to resolution for the purposes of the ADA.

Was there unlawful discrimination on the grounds of GJE's disability and/or on the grounds of GKA being a relative or carer?

We are not satisfied that there is evidence of differential treatment in relation to the determination of the DA based on GJE's disability or GKA's status as a relative or carer. We are satisfied that the respondent applied the relevant planning rules and there is no dispute that the applicants' DA did not comply with all the relevant planning conditions of the MDCP 2011. The primary reason the DA was rejected was because it did not comply with at least two of those conditions - the conditions relating to heritage conservation and private open space. While the application was formally rejected on additional multiple grounds of non-compliance, there is evidence that the majority of those issues could have been resolved before the refusal if the applicants had submitted an amended DA that resolved the two disputed but - from both parties' point of view - critical planning conditions.
We are not satisfied that there is evidence the respondent, or its officers, imposed conditions or requirements because of GJE's disability or GKA's status as a relative or carer. The conditions that were imposed were existing conditions and controls that applied to their DA. There is evidence that some residents whose DAs did not comply were able to obtain approval, despite non-compliance. However, there is no evidence that these DAs were dealt with differently to the applicants' DA because GJE had a disability or GKA was a relative or carer, rather than on consideration of the particular circumstances relating to each application. As already noted, examination of the various applications reveals that there were numerous issues considered by the relevant planning officers.
We are also not satisfied that the respondent discriminated indirectly against the applicants by requiring them to comply with the disputed conditions. There is no evidence that a substantially higher proportion of persons who were not disabled, and who may not require mobility aids, could comply with these conditions. The applicants make a general submission, without pointing to evidence of comparators, that a higher proportion of persons who do not have disability and mobility needs would be able to design, and have approved, renovations and additions to their properties that could comply with the disputed conditions about the heritage roofline and the proportion of private open space. The DAs which were provided as potential comparators reveal that the applicants in each of those cases had particular design outcomes that they wished to achieve. It is apparent that in most cases, the applicants were prepared to compromise, some significantly, by submitting amended plans.
In this case, the applicants wanted to achieve certain design outcomes in relation to their renovations which were particular to their needs, but which also took into account potential future mobility concerns. Like many residents seeking planning approval, they were seeking an outcome that would meet all their objectives. This is understandable and it is not uncommon for residents to push planning rules and boundaries in the hope of achieving their optimum outcomes. However, there is nothing inherently discriminatory in a condition (Condition 22, Part 8.3.2.6) which provides that existing original roof forms, and where possible materials, be retained to the front elevation and for the length of the main roof to the side elevations. This is a control, as the heading suggests, that is common to all residential heritage conservation areas.
Obviously, a roofline which is not so constrained would make it easier for an applicant who seeks to renovate a first-floor addition to provide maximum space within the built area. Yet this is not disability or mobility dependent and much depends on the preferences of the resident seeking to renovate a property which is affected by the heritage planning controls. Ultimately, this is speculative because the applicants did not provide evidence that there was a higher proportion of persons who do not have disability and mobility needs who would be able to design, and have approved, renovations and additions to their properties that could comply with the disputed conditions in the Inner West local government area. Nor is there evidence that a hypothetical comparator would more easily be able to comply. The same can be said for the private open space requirements.
The applicants also allege disability discrimination, direct or indirect, on the grounds that the respondent had an obligation to make accommodation for them because of GJE's disability. The claim is that the respondent should have applied Part 2.5 of MDCP 2011 and the respondent's DIAP. It is unclear whether the applicants claim is that this was an obligation under the planning principles or an obligation that arose to justify the conditions imposed. For the reasons outlined above, we are not satisfied that either of these applied in the planning context.
In summary, we are not satisfied that there was unlawful discrimination on the grounds of GJE's disability or GKA's association as a relative of GJE or as a carer. We accept that the applicants obtained a more favourable outcome after commencing the Land and Environment Court proceedings, but this does not establish unlawful discrimination or other error in the planning determination. The Land and Environment Court upheld the appeal but only after amended plans were submitted as part of a negotiated settlement. It is unfortunate that the dispute could not have been resolved earlier without recourse to litigation as both parties incurred significant legal costs. However, there is no evidence that the respondent based these decisions on GJE's disability or GKA's status as relative or carer, and we are not satisfied that insisting on compliance with the disputed conditions constituted indirect discrimination. If there was unfairness and inconsistency in the respondent's decision-making (which we are not satisfied has been established on the evidence), it is open to the applicants to complain to the respondent, however, it does not of itself establish unlawful discrimination.
The respondent's DIAP is intended to focus on disability and community consultation about disability inclusion and needs. This process may ultimately lead to changes in the relevant planning development controls, but the DIAP does not impact the interpretation or application of those controls as they are currently drafted.
Having regard to our findings, we are not satisfied that there was unlawful discrimination by the respondent against the applicants on the grounds of disability.

Section 54 protections

We have found that there was no unlawful discrimination. While this means that it is not strictly necessary to consider whether the respondent would be entitled to rely on s 54 of the ADA to avoid a finding of contravention or liability under the ADA, we consider it important to dispel doubt.
We reject the submission that an act done by a council (or indeed any other statutory authority) which amounts to unlawful discrimination under the ADA, is excused or protected because it was undertaken as part of a statutory function. The protection under s 54 is limited to those acts done that are required to be done under another Act, or a regulation, instrument or rule made under another Act or by a court or tribunal order which have the proscribed effect.
The EPA Act does not require a consent authority to undertake its functions and obligations in a discriminatory manner. None of the development controls identified in this case are directed towards or require discriminatory actions or outcomes. There is no evidence to hand, nor statutory basis, to support the contention that compliance with the EPA Act and/or MDCP 2011 in relation to the disputed planning conditions would inevitably result in contravention of the ADA, and vice versa. In other words, compliance with the EPA Act and the other planning instruments, such as MDCP 2011, and compliance with the ADA are not inimical and there is no reason why a consent authority cannot - and should not - comply with both. Relevantly, s 4.15 of the EPA Act does not preclude a consent authority from applying planning rules fairly and consistently without applying differential treatment on the grounds prohibited by the ADA. Section 54 is directed to certain acts authorised under legislation or by the Courts and Tribunals that are, and are intended to have, a discriminatory effect or impact. That is, legislation that seeks to provide more favourable treatment, or to proactively discriminate, on an otherwise proscribed ground would be covered by the protections in s 54.

Conclusion

For the reasons outlined above, we are not satisfied that there was unlawful discrimination in contravention of ss 49B, 49M or 53 of the ADA in relation to the respondent's handling of the DA or the complaint, and we dismiss the application. We also dismiss the complaint of a privacy breach as the Tribunal lacks jurisdiction to hear the matter.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar 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: 09 January 2025

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