Goldin & Anor v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995

APPELLANTS: Mr I J Hemmings (barrister) SOLICITORS: Spiegel & Associates LEGAL REPRESENTATIVES: RESPONDENT: Mr T S Hale SC SOLICITORS: Minter Ellison

19 IN THE LAND AND Matter No.: 10190 & 10191 of 2001 ENVIRONMENT COURT Coram: Lloyd J OF NEW SOUTH WALES Decision date: 17 May 2002 Gloreen Goldin and Matthew Lau Appellants v The Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 Respondent

1. These are two appeals under s 56A of the Land and Environment Court Act 1979 ("the Court Act") against a decision made by Senior Commissioner Jensen to dismiss applications brought by the appellants under s 97 of the Environmental Planning and Assessment Act 1979 ("the EP&A Act"). The appellant Ms G Goldin is the owner of premises known as No. 7 The Tor Walk, Castlecrag and the appellant Mr M Lau is the owner of No. 3 The Tor Walk, Castlecrag. Their applications comprised a boat shed, jetty, ramp, pontoon and mooring pen (Ms Goldin) and a jetty, repairs to the existing sandstone seawall and a boat shed and pontoon (Mr Lau).
2. The Senior Commissioner heard four separate applications relating to the construction of such structures on four separate properties at The Tor Walk. The evidence was common in the four applications and, at the parties' request, the four applications were heard at the same time. For the same reason the Senior Commissioner delivered a single judgment. Only two of the original applicants, Ms Goldin and Mr Lau, have appealed against the Senior Commissioner's decision. The Grounds of Appeal
3. The appellants initially raised four grounds of appeal. During the hearing of the appeal, however, the appellants raised an additional ground, namely a failure on the part of the Senior Commissioner to provide reasons for his decision. The original four grounds of appeal and the additional fifth ground are as follows: (1) The Senior Commissioner erred in law in that he took into account an irrelevant consideration, namely, whether the approval of the applications would be a precedent leading inexorably to further applications over time. (2) The Senior Commissioner erred in law either by asking himself the wrong question or taking into account an irrelevant consideration, namely, whether the area would not benefit from the introduction of the structures sought by the applications. (3) The Senior Commissioner erred in law by taking into account an irrelevant consideration, namely, planning instruments and policy other than Sydney Regional Environmental Plan No. 23 ("SREP No. 23"), the associated development control plan, the Sydney Harbour and Parramatta River Development Control Plan ("the DCP"). (4) The Senior Commissioner erred in law in failing to have proper regard to a relevant consideration being SREP No. 23 and the DCP. (5) The Senior Commissioner erred in law in failing to provide reasons for his decision. The Senior Commissioner's decision
4. The Senior Commissioner's decision is set out in a reserved judgment of some 15 pages. The Senior Commissioner sets out the relevant planning controls, including SREP No. 23 and the DCP, summarises the expert evidence and then sets out his conclusions as follows:

Conclusions [38] As earlier noted, the issues in this appeal could be seen as involving the impact on the landscape and scenic qualities of the bay, the impacts on the public access to and use of the foreshore land and impacts of the proposed development on the marine environment. With regard to the latter two of these, a review of the evidence coupled with recollections of the view taken with the parties, persuade me that the question of access and potential impact on the marine environment are not matters that would justify refusal of this application on any reasonable basis. [39] With regard to the question of access it is quite clear that, apart from a limited period at low tide, the foreshore is in a practical sense scarcely accessible in a lateral direction. Even traversing it from the water could involve difficulties at anything other than low water. In addition as noted in the JBA Study, access from The Tor Walk above through the former bridge abutments land owned by the RTA, must be seen as extremely problematic. Dinghies are certainly stored in this area for access to the moored craft but this must involve a considerable element of difficulty of access from above and may well require an approach along the shoreline from the north-eastern part of the Castlecrag peninsular. [40] With regard to marine growth, it is also clear that the extent of affectation is limited to a portion of the structures proposed for the jetty at 7(a) The Tor Walk. I am not persuaded that driving a pile would create such damage as to be unacceptable or that shadowing of the sensitive seagrass would be so great as to make what is proposed an inevitable basis for refusal. [41] That leads me to a consideration of the scenic quality of the four groups of structures proposed and their acceptability either as a group or individually when seen in the context of the relevant planning controls on the one hand and quality of the foreshore on the other. [42] In this regard, whether considered individually or as part of a group, in the ultimate one approval would tend to lead inexorably to a further three over time. Further, although the notion of precedent is treated with considerable caution by this Court, in this instance the pressure to achieve a further 13 shoreline facilities, given the existence of 25 lots that could be seen as benefiting, seems likely to be an inevitable consequence of approvals in this location. [43] Evidently in this instance what is called for is an exercise in planning discretion given the inevitably subjective nature of an appraisal of scenery and scenic quality. [44] In this regard it seems to me that the evidence from Mr Angelini was both coherent and consistent in condemning the undesirable visual impact of the proposals on, what is at present, a largely undeveloped shoreline, except at its extreme southern and northern ends. [45] While it is quite clear that the planning and policy instruments are in the main directed at the control of development above the mean high water mark and substantial guidance is provided in the form of objectives and principles, surprisingly little seems to be said about what should happen below the mean high water mark and over the waters of the harbour. This is perhaps to be explained through the derivation of these instruments as guidance for the onshore municipalities where, until recently, the area below mean high water mark was controlled by the Maritime Services Board. Here continuity of approach to development might well be expected and the evidence suggests a highly consistent approach has indeed applied. In that regard the evidence indicates that in earlier times, a number of applications for development similar to the proposal before the Court have been lodged and since 1974, have been unsuccessful. [46] No doubt this has been the most compelling reason that this part of Castlecrag, despite extensive development in recent times along foreshore land abutting The Tor Walk, at the shoreline is still remarkably undeveloped. Further the occurrence of a substantial number of swing moorings, as confirmed by the view with the parties, provides an attractive scene associated with marine activities, while the foreshore remains unaffected by constructed works. [47] In conclusion and very much assisted by access to the locality by boat with the parties, I have decided that this is an area that would not benefit from the introduction of structures as suggested in the four applications, whether it be singly or as a group. Given this conclusion and notwithstanding the positive response to the other two major concerns, it is inevitable that these development applications are seen as unacceptable and accordingly the following orders are given. Ground (1): Precedent 5. Mr I J Hemmings, appearing for the appellants, submits that it is an error of law for the Senior Commissioner to have determined the matter on its potential precedent found in par [42] of his decision. Mr Hemmings expanded on this submission by saying that the Senior Commissioner ought to have used SREP No. 23 and the DCP as the focal points in the decision-making process. But rather than doing so the Senior Commissioner failed to apply the DCP properly or at all and decided the matter on its potential precedent value. In Mr Hemmings' submission, each planning decision must be considered on its own merits; and simply because an earlier application was approved, the grant of such approval would not preclude the consent authority from taking into account all relevant considerations of an application made at a later time. 6. I consider, under grounds (3) and (4) below, the suggested failure of the Senior Commissioner to take into consideration SREP No. 23 and the DCP. As to the relevance of precedent as a matter of consideration, the following authorities are relied upon by Mr Hemmings. 7. In Emmott v Ku-ring-gai Municipal Council (1954) 3 LGRA 177, Sugerman J said (at 182): It is sometimes contended that a proposed development, in itself unobjectionable, should not be allowed because it is likely to lead to others of a similar character and the totality would prove objectionable. That depends , inter alia , upon the existence of a sufficient probability that there will be further applications for a number of undistinguishable developments of the same class sufficient in their totality to bring about the objectionable condition of affairs. Here it seems, as I have said, unlikely that all the hypothetical subdivisions shown on the plan tendered by the council would be sought. Applications must be considered on their own merits and it would appear to be unduly onerous to refuse an application, unobjectionable on its individual merits, on the mere chance of probability that there may be later applications sufficient, if approved, to produce in their totality some undesirable condition. In such a case as the present, if what originally appeared to be a mere possibility or chance turned out later to become a distinct possibility, there would be no reason why the council should not at that stage call a halt, if it should then appear proper to do so. Justice is not offended in these circumstances by the refusal of further applications calculated to lead to objectionable conditions after the granting of one or more earlier applications unobjectionable in themselves. 8. The observations of Sugerman J in Emmott were adopted by Cripps J in Milner v Willoughby Municipal Council (NSWLEC, 19 April 1984, unreported). In rejecting a submission that an approval of an application for subdivision would create a precedent by requiring the consent authority to make more bad planning decisions because of one bad planning decision, Cripps J said: In any event, even if one bad planning decision were made, the Council is not compelled by that circumstance to repeat its mistakes. 9. Cripps J rejected a submission that the application before him should be refused because it would force the council to consent to other applications which, in their totality, would not be acceptable on planning grounds: Each development application must be determined on its own merits. 10. In Maxwell James Maxwell Pty Ltd & Anor v North Sydney Municipal Council (NSWLEC, 13 December 1991, unreported) Stein J said: The precedent argument may properly be seen as an argument of last resort. Assuming precedents to be good or bad, there is no justification for blindly following a bad one. It is the merits of any particular development which are important. 11. In Dale v Maritime Services Board of New South Wales (1992) 75 LGRA 224, Pearlman J followed the judgments of Cripps J in Milner v Willoughby Municipal Council and of Stein J in Maxwell James Maxwell Pty Ltd v North Sydney Municipal Council. After referring to these two judgments, her Honour said (at 232): I do not consider that the granting of consent to the erection of a jetty in this case would force the respondent to consent to the erection of other jetties along the shoreline of Sydney Harbour, whether in the Watsons Bay vicinity or otherwise. It will not be precluded from taking into account all relevant considerations at that time, simply because the proposed jetty in this case was approved. 12. In Pittwater Council v Mount [2000] NSWLEC 256, which was an appeal under s 56A of the Court Act against a decision of a commissioner, Bignold J upheld a decision of the commissioner in the course of which the commissioner followed Dale v Maritime Services Board of New South Wales. A reading of the judgment shows, however, that the question of precedent was not an issue arising or a ground raised in the appeal in that case, which was determined by his Honour on other grounds. 13. Mr T S Hale SC, appearing for the respondent, submits that questions of precedent and consistency in administrative decision-making are relevant considerations. Mr Hale relies upon the following authorities in support of this submission. 14. In Crowle v Manly Municipal Council (1950) 17 LGR (NSW) 217, Sugerman J held that upon an application for subdivision it is relevant to consider the difficulty by which allowing the application would put the council in with respect to other applications which may be made to it. In dismissing the appeal Sugerman J said (at 223): In addition to what has already been stated there is another consideration, which has to be kept in mind. That is the difficulty which allowance of the present application would put the Council in with respect to other applications for resubdivision which may be made to it. So far it has disapproved such applications, but it might well be in difficulty about refusing further applications where an application has been approved … 15. In Girvan v Willoughby Municipal Council (1952) 18 LGR (NSW) 222, which was an appeal against the respondent council's disapproval of the appellant's application for a garage on the street alignment, Sugerman J said (at 222-223): But, if approved, it is not likely to remain an isolated application. … Approval would create a precedent which would make it difficult to refuse approval of the erection of garages on the street alignment in other cases, and that, it is believed by the Council, would be undesirable and contrary to the public interest in the preservation of at least the existing amenities of the area. 16. In dismissing the appeal, Sugerman J then expressed the following conclusion (at 224): I apprehend that if the Court were to interfere here it would have great difficulty in resisting other applications for the erection of garages on the street alignment, and in the end the attempts of councils to preserve a proper standard of amenities in their areas would be frustrated by decisions of the Court. 17. In Blick v Ashfield Municipal Council (1957) 3 LGRA 131, there was an appeal against the refusal of an application for the erection of shops. In dismissing the appeal, Hardie J said (at 133-134): The granting of this application would, in my view, result in the council receiving a number of other applications for consent to use other properties on the northern side of Parramatta Road in this section for commercial purposes. If the council's decision in the present case were set aside, it would have no alternative but to grant other applications for consent to change of user from residential to commercial in this section of Parramatta Road, with the result that this portion of Haberfield would deteriorate greatly. … It is apparent that there is constant and strong pressure on the council to permit owners of properties in this portion of Parramatta Road to make some commercial use of their properties so that they can profit from the prominent position they occupy on that busy highway. The council is faced with difficult problems in this area, and this position will continue. The granting of an application such as the present one would, in my view, render the council's difficulties and problems much more acute than they are now. 18. In Shellcove Gardens Pty Ltd v North Sydney Municipal Council (1960) 6 LGRA 93, Sugerman J said (at 104): Hence it may be expected that other developers would seek to follow an example which had been set. Notwithstanding that each application must be considered on its individual merits and that there is no such thing as binding precedent in these matters, if one application were granted it might prove difficult for the council to refuse others unless the circumstances were distinguishable. Here there is more than a mere "chance or possibility" of later applications, but a distinct probability (see Emmot v. Ku-ring-gai M.C. [ (1954) 3 L.G.R.A. 177, at p. 182 ] , where the words "chance of probability" appear as a misprint for "chance or possibility"; and the question of precedent has also been referred to in other cases in this Court, of which Crowley v . Manly M.C. [ (1950) 17 L.G.R. 217, at p. 223 ]; Vacuum Oil Co. v. Ashfield M.C. [ (1956) 2 L.G.R.A. 8 at p. 11 ] ; and Connell v. Cumberland County Council [ (1958) 4 L.G.R.A. 38, at p. 48 ] , were cited in argument). 19. In Humby v Woollahra Municipal Council (1964) 10 LGRA 56, Else-Mitchell J, after referring to the evidence of an officer of the Cumberland County Council said (at 67): He also referred to the fact that the approval of one development would be relied upon as a precedent by other developers and that claims to similar treatment made on such a basis are often difficult to refuse. What Mr O'Neill said is unfortunately only too true and democratically-elected aldermen in particular find it difficult to resist the sort of arguments and pressures of which he spoke: approval of development projects may then become a self-generating factor of such force that the restoration of the status quo is virtually impossible and then the Court, which fortunately is not subject to democratic pressures, may itself have to yield (cf. Sing v. Blacktown M.C. [ (1963) 9 L.G.R.A. 248 ]. 20. In C & H Pty Ltd v Sydney City Council (1964) 10 LGRA 343, Else-Mitchell J said (at 347) that a factor of significant public interest was "…the influence which any new development, even of an interim character, may have in producing pressures for other similar new development…". 21. In Austin Construction Company (Aust) Pty Ltd v North Sydney Municipal Council (1967) 14 LGRA 154, Else-Mitchell J dismissed an appeal against the refusal of an application to demolish a house and to erect in its place a residential flat building. In so doing Else-Mitchell J said (at 162): It was said that the residence on the subject land is older than many of the other buildings in Waverton Avenue, but, as has been observed many times before in the judgments of this Court, the grant of development consent for a building which is out of character with existing development will give rise to pressures and generate a demand for further consents to similar development, often to a point where the responsible authority is powerless to call a halt to the erosion of the amenity of the neighbourhood until it has been entirely destroyed…. 22. In Milstern Holdings Pty Ltd v Blacktown Municipal Council (1971) 23 LGRA 8, Else-Mitchell J referred (at 13) to the difficulty of approving development which will give rise to pressures for the approval of similar development on adjacent lands. His Honour continued: As I observed in Humby v. Woollahra Municipal Council [ (1964) 10 L.G.R.A. 56 ] , the approval of one development project could become a self-generating factor of such force that the development of other adjoining or adjacent lands for like purposes or purposes which entail construction of substantial buildings or involve increases of traffic and of parking use may be impossible to refuse. Put in another way, I should say that it is inevitable that a development of the type sought will have a considerable effect in determining the character of the locality…. 23. In Andersen v Gosford Shire Council (1972) 25 LGRA 217, in dismissing an appeal against the refusal of an application for a residential flat building, Else-Mitchell J said (at 222): Any relaxation of a firm policy against flat development will inevitably give rise to pressures for other flat developments which, as I observed in Humby v. Woollahra Municipal Council [ (1964) 10 L.G.R.A. 56 ] , some years ago, the council may find it difficult to resist, and in the course of time the whole character of Albany Street, and maybe of Point Frederick itself, will be altered. 24. More recently, in BP Australia Ltd v Campbelltown City Council (1994) 83 LGERA 274, in the course of upholding a judgment of Bignold J (who had dismissed an appeal against the council's deemed refusal of consent to a development application), Mahoney JA (Meagher and Powell JJA agreeing) said (at 279) that Bignold J was not in error in giving weight to "the risk of establishing a precedent readily invokable by prospective developers of the residue of the undeveloped 'island' land". 25. The question of precedent has also been considered as relevant in other jurisdictions. In Collis Radio Ltd & Anor v Secretary of State for the Environment & Anor (1975) 29 P&CR 390, 73 LGR (UK) 211, Lord Widgery CJ (with whom Ashworth and Michael Davis JJ agreed) said in the course of a planning appeal (at 395-396): This is a problem which has appeared in the administration of the planning law since its inception. There is no doubt whatever that, human nature being what it is, if permission is granted for a particular form of development on site A it is very difficult to refuse similar development on site B if the circumstances are the same. It must happen constantly in practice that a local planning authority refuses planning permission in respect of site A because of the consequences which it fears might flow in respect of sites B, C and D. No court has so far said that that is not a proper consideration to be adopted by a planning authority, and Mr Glidewell acknowledges, as one would expect, that he is putting forward a proposition which, so far, at any rate, is not to be found in the books. … In all planning cases it must be of the greatest importance when considering a single planning application to ask oneself what the consequences in the locality will be - what are the side effects which will flow if such a permission is granted. In so far as an application for planning permission on site A is judged according to the consequence on sites B, C and D, in my judgment no error of law is disclosed but only what is perhaps the most elementary principle of planning practice is being observed. 26. In Re Drake v Minister for Immigration & Ethnic Affairs [No. 2] (1979) ALD 634, Brennan J (as he then was) said in an administrative appeal (at 643) that one of the factors to be considered in arriving at the preferable decision in a particular case is its consistency with other decisions in comparable cases. 27. In Mr Hale's submission, the fact that consistency in administrative decision-making is a relevant and important consideration is also recognised by the specific aims and objectives in cl 2(2)(b) of SREP No. 23. That sub-clause sets out the following specific aims in relation to administration and management of the plan: (2) The specific aims of this plan are: … (b) in relation to administration and management: (i) to ensure that a consistent and co-ordinated development approval process applies to all development proposals whether they be above or below mean high water mark or span mean high water mark; and (ii) to ensure that for any development proposal there is only one consent authority; and (iii) to ensure that all consent authorities apply consistent criteria when considering development applications; and (iv) to establish clear and consistent guidelines on the use and development of the Harbours and their foreshores; … 28. A number of things could be said about these authorities and the competing submissions upon which they are based. In Emmott v Ku-ring-gai Municipal Council, Sugerman J considered the proposition that a proposed development which is itself unobjectionable should not be allowed because it is likely to lead to other developments of a similar character, the totality of which would prove objectionable. His Honour went on to say that this is in turn dependent upon "a sufficient probability that there will be further applications for a number of undistinguishable developments of the same class sufficient in their totality to bring about the objectionable condition of affairs". As I understand the decision, if the Court is entertained with an application for a proposed development which is both objectionable in itself and where there is a sufficient probability that there will be further applications of a like kind, then the fact that a consent would operate as a precedent may be taken into consideration. 29. In the present case the Senior Commissioner noted (at par [42]) that the notion of precedent is treated with considerable caution by the Court. He also found as a fact that one approval would tend to lead inexorably to a further three over time. He also noted the existence of 25 lots that could be seen as benefiting from what seems likely to be an inevitable consequence of approvals in this location. Importantly, the Senior Commissioner found (at par [44]) that the present proposals had an undesirable visual impact. In other words, the present proposals satisfied the criteria identified by Sugerman J which give rise to a valid consideration of precedent: the present proposals were not "unobjectionable" in themselves and there was a sufficient probability for further applications of undistinguishable developments of the same class and in the same locality. 30. In Milner v Willoughby Municipal Council, Cripps J expressly adopted the observations of Sugerman J in Emmott. In Maxwell James Maxwell Pty Ltd v North Sydney Municipal Council, Stein J accepted that a precedent argument may be raised, albeit as an argument of the last resort, but did not refer to any authority for that statement. His Honour emphasised, as did Cripps J, that it is the merits of any particular development application that is important. In Dale v Maritime Services Board of New South Wales, Pearlman J followed the judgments of Cripps J in Milner and of Stein J in Maxwell James Maxwell Pty Ltd. In doing so it does not seem, from a reading of her Honour's judgment, that her Honour was departing from what Sugerman J said in Emmott, that forming the basis of the decision of Cripps J in Milner. 31. The authorities relied upon by Mr Hale show clearly that the precedent effect of a particular proposal is a valid consideration. In Shellcove Gardens Pty Ltd v North Sydney Municipal Council, Sugerman J expressly referred to his earlier decision in Emmott, in which he corrected the misprint in the latter judgment. Sugerman J acknowledged that "if one application were granted it might prove difficult for the council to refuse others unless the circumstances were distinguishable". In the present case there has been a finding of fact by the Senior Commissioner that there is more than a mere "chance or possibility" of such later applications. 32. In particular, the decision of the Court of Appeal in BP Australia Ltd v Campbelltown City Council is, of course, binding upon me. As noted above, that Court held that the risk of establishing a precedent is readily invokable by prospective developers of other land in the vicinity is a valid consideration. 33. The Senior Commissioner's consideration also demonstrates the aim of consistency, noted by Brennan J as a guiding policy of administrative decision-making. I have noted above the specific aims of the SREP No. 23 as including the aims of ensuring consistency under that instrument. The Senior Commissioner properly refers to the need for consistency in the following statement (at par [45]): Here continuity of approach to development might well be expected and the evidence suggests a highly consistent approach has indeed applied. In that regard the evidence indicates that in earlier times, a number of applications for development similar to the proposal before the Court have been lodged and since 1974, have been unsuccessful. 34. In the present case the Senior Commissioner did not err in law by taking into consideration the fact that approval of the applications would be a precedent. That was not an irrelevant consideration. It was a relevant consideration on the facts and circumstances of the case as found by the Senior Commissioner, namely: that the proposed developments were not themselves unobjectionable, having, as the Senior Commissioner found, an undesirable visual impact on a largely undeveloped shoreline; and that there was more than a mere chance or possibility that there may be later undistinguishable development applications of the same class - or, as the Senior Commissioner found, "would lead inexorably to a further three over time" and "pressure to achieve a further 13 shoreline facilities" - also described by the Senior Commissioner as "likely to be an inevitable consequence". 35. It is submitted by Mr Hemmings that these findings of the Senior Commissioner were not reasonably open to him on the evidence. There is, however, no error of law in simply making a wrong finding of fact (unless, of course, it is a jurisdictional fact) (Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135 at 154 [44] and 158 [59]). Moreover, even perverse or unreasonable findings of fact do not amount to an error of law. (Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 155-157, Randwick Municipal Council v Manousaki (1988) 66 LGRA 330 at 333). 36. This ground of appeal thus fails. Ground (2): Benefit 37. Mr Hemmings submits that on two occasions the Senior Commissioner made it clear that he was considering benefit (at pars [42] and [47]). According to the submission, the Senior Commissioner was required to determine whether the development applications are acceptable having regard to the heads of consideration under s 79C of the EP&A Act. There is no requirement that there must be derived from the development applications some benefit to the area generally or the development specifically. So, the submission goes, the Senior Commissioner determined the development applications by asking himself the wrong question, namely, whether the development applications would provide some benefit. In so doing it is said that the Senior Commissioner erred in law. 38. Mr Hale submits that the Senior Commissioner's reference to benefit is an expression of his conclusion by euphemism and understatement in considering the question of whether the extent of visual impact is acceptable in the context of the surroundings, this being a matter referred to by the expert witness for the council, Mr N Angelini. According to Mr Hale, the Senior Commissioner accepted the evidence of Mr Angelini (at par [44]) and was expressing in his own language the same opinion. 39. I prefer, however, to decide this issue on another basis. I have noted that the Senior Commissioner's decision sets out the relevant planning controls. Thus the Senior Commissioner sets out in his decision the aims and objectives of SREP No. 23, which include (inter alia) "to recognise, protect and enhance the natural, scenic, environmental, cultural and heritage qualities of the land…" (cl 2(1)(c)) (the emphasis is mine). In particular, the Senior Commissioner noted that the subject land is located in zone W1 - General Waterways under SREP No. 23. The Senior Commissioner sets out the objective of the zone, which is to permit waterways activities and facilities and land/water interface development which: "a) maintains or enhances important, natural and visual attributes of the Harbours; …" (the emphasis is mine). The Senior Commissioner also sets out the relevant controls under the DCP, including the specific purpose of the DCP of (inter alia) "ensuring that the scenic quality of the area is protected or enhanced" (again, the emphasis is mine). The Senior Commissioner also sets out a number of principles specified in the DCP, including: "the protection and improvement of unique visual qualities of the harbour and its tributaries" (the emphasis is again added). 40. Section 79C(1)(a) of the EP&A Act requires the consent authority to take into consideration (inter alia) the provisions of any environmental planning instrument and any development control plan. In my opinion, in taking into consideration the provisions of the SREP No. 23 and the DCP which the Senior Commissioner set out in his judgement, particularly the provisions noted above, the Senior Commissioner was required to consider whether the proposed developments would result in an enhancement of or an improvement to the area; or in another way, whether there would be any benefit, which is the same thing. Contrary to Mr Hemmings' submission that benefit was an irrelevant consideration, it is a matter which the Senior Commissioner was required to take into consideration. 41. This ground of appeal thus fails. Grounds (3) and (4): Failure to have regard to the relevant planning controls 42. It is convenient to consider these two grounds together. Mr Hemmings submits that the Senior Commissioner should have used as the focal point of the decision-making process SREP No. 23 and the DCP (he referred to Zhang v Canterbury City Council (2001) 115 LGERA 373). He submits that rather than doing so the Senior Commissioner determined the matter on grounds extraneous to those instruments; and by failing to give force to the relevant planning controls the Senior Commissioner erred in law. 43. In Zhang there was a question of whether a commissioner of the Court failed to take into consideration a standard contained in a development control plan in deciding to grant development consent for a brothel. The brothel in question did not comply with a standard contained in the development control plan which provided that a brothel should not be located within 200 metres of a church and a primary school. 44. The Court of Appeal held (at 386-387) that the wide ranging discretion of a consent authority to grant or refuse development consent is not at large and is not unfettered: it is subject to the obligation to take into consideration the matters identified in s 79C(1) of the EP&A Act. Spigelman CJ (Meagher and Beazley JJA agreeing) said (at 387): There was a relevant and applicable "standard" which he was obliged to "take into consideration". It ought to have served as a focal point for, or constituted a fundamental element in, his deliberations. 45. The Court found that by substituting his own opinion of appropriateness of the location of the brothel, the commissioner had not taken into consideration the standard contained in the development control plan. 46. In the present case, as noted above, the Senior Commissioner sets out in his decision the relevant provisions of SREP No. 23 and the DCP. These include, under the SREP No. 23, the aims and objectives of recognising and enhancing the natural scenic qualities of the land and the encouragement and appreciation of the remaining natural foreshores around the harbours. The Senior Commissioner's decision notes the objectives of the zoning of the land (W1 - General Waterways) as including the maintenance or enhancement of important, natural and visual attributes of the Harbour. The decision notes a requirement of the SREP No. 23 (cl 18(a)) to consider the appearance of the development from the waterways and the shores (inter alia). As to the DCP the Senior Commissioner's decision notes the stated objectives and guidelines of that instrument as including "ensuring that the scenic quality of the area is protected and enhanced". The decision also notes the DCP as identifying amongst a list of principles of particular importance "the conservation of significant bushland and other natural features along the foreshore…"; "the protection and improvement of unique visual qualities of the harbour and its tributaries"; and "the character of any development as viewed from the water and its compatibility and sympathy with the character of the surrounding foreshores". The Senior Commissioner's decision also notes performance criteria specified in the DCP which include references to the visual impact of development. 47. The Senior Commissioner then states that "the subject sites are clearly adjoining largely undeveloped bushland". He then summarises the expert evidence, noting the comparison by the appellants' expert (Ms D Laidlaw) of the proposed development with the various provisions of the DCP. 48. In his conclusions, the Senior Commissioner returned to the substance of those provisions of both SREP No. 23 and the DCP to which he earlier referred at pars [41]. [43], [44] and [47] of his decision. Although not specifically referring again in terms to those provisions, it is clear that by setting out the relevant provisions in the early part of his decision and then setting out his conclusions on the subject matter to which those provisions are directed, the Senior Commissioner has properly taken those provisions into account. 49. Moreover, unlike the facts in Zhang, the present case is not one in which it is suggested that there is any failure to comply with any relevant standard in either SREP No. 23 or in the DCP. 50. In considering whether the Senior Commissioner had proper regard to the relevant planning controls, it must also be borne in mind that the Senior Commissioner is not a lawyer and the Court should not examine the language of his reasons too narrowly, as if they were written by a lawyer (Brimbella Pty Ltd v Mosman Municipal Council (1985) 79 LGERA 367 at 368, per Kirby P, Fast Buck$ v Byron Shire Council (1999) 103 LGERA 94 at 98, per Handley JA). Although the Senior Commissioner did not state in terms that his consideration included the relevant statutory controls, that is what he in fact did. 51. Neither do I agree with the submission that the Senior Commissioner erred in law by taking into account considerations extraneous to the relevant planning instruments. Section 79C(1) of the EP&A Act requires the consent authority to take into consideration other matters, in particular the likely impacts of the development on the natural and built environment (par (b)), and the suitability of the site for the development (par (e)). In refusing the applications on the ground of their unacceptable visual impact on, what the Senior Commissioner describes as, "a largely undeveloped shoreline, except at its extreme southern and northern ends", the Senior Commissioner did not take into account an irrelevant consideration. Both of these grounds of appeal thus fail. Ground (5): Adequacy of Reasons 52. Mr Hemmings submits that the only reason given by the Senior Commissioner for his determination is in par [44] of his decision which is as follows: [44] In this regard it seems to me that the evidence from Mr Angelini was both coherent and consistent in condemning the undesirable visual impact of the proposals on, what is at present, a largely undeveloped shoreline, except at its extreme southern and northern ends. 53. In Mr Hemmings' submission the only reason given in the Senior Commissioner's decision is said to be the coherency and consistency of Mr Angelini's evidence. In his submission, this does not amount to adequate reasons. The Senior Commissioner does not state why he accepted the evidence of Mr Angelini (in preference to the evidence of the appellants' expert witness, Ms Laidlaw). Mr Hemmings further submits that "even if this submission is incorrect, the Senior Commissioner needed to provide reasons for the preference of the visual impact over the requirement of the DCP". 54. The second submission in par [53] above can be readily answered. As noted above, the DCP requires an assessment of the visual impact. This is precisely what the Senior Commissioner has done and it is reasonably apparent that he has found the unacceptable visual impact to be determinative as a matter of fact. 55. These submissions, in my opinion, require consideration of the extent of the obligation to provide reasons for decision. The giving of reasons is a fundamental obligation and a failure to do so may constitute an error of law (Pettitt v Dunkley [1971] 1 NSWLR 376 at 382, Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 385). 56. The extent to which reasons must be given has been considered in a number of cases. It is convenient for the present purposes to refer to two of them. In Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, McHugh JA said (at 280): If an obligation to give reasons for a decision exists its discharge does not require lengthy or elaborate reasons: Ex parte Powter; Re Powter (1945) 46 SR (NSW) 1 at 5; 63 WN 34 at 36. But it is necessary that the essential ground or grounds upon which the decision rests should be articulated. In many cases the reasons for preferring one conclusion to another also need to be given: … 57. More recently, in Hadid v Redpath [2001] NSWCA 416, Haydon JA (Stein JA and Grove J concurring) held (at par [53]) that it was not a sufficient reason for a judge to say that that he or she "preferred" the evidence of one witness over that of another. Reasons must be given for preferring one witness' evidence over another. 58. In the present case the Senior Commissioner was required to give reasons for his acceptance of the evidence of Mr Angelini (in preference to the evidence of Ms Laidlaw). In my opinion the minimal reasons given by the Senior Commissioner are just sufficient to satisfy this requirement. The Senior Commissioner describes the evidence of Mr Angelini as "both coherent and consistent in condemning the undesirable visual impact of the proposals". But the Senior Commissioner does not stop there. He then makes a finding of fact that the shoreline is at present largely undeveloped, except at its extreme southern and northern ends. The latter finding is re-stated in par [46] as "this part of Castlecrag… at the shoreline is still remarkably undeveloped" and "the foreshore remains unaffected by construction works". The reasons may thus be re-stated as follows: (i) the shoreline is at the present largely undeveloped, except at its extreme southern and northern end; (ii) the visual impact of the proposals upon the largely undeveloped shoreline is undesirable; and (iii) the evidence of Mr Angelini was both coherent and consistent in condemning such undesirable impact. 59. As noted above, the Senior Commissioner set out (at par [38] of his decision) the three issues involved in the appeal. In the same paragraph the Senior Commissioner then states that the second and third issues (the questions of access and potential impact on the marine environment) are not matters that would justify refusal of the applications on any reasonable basis. That left only the first issue, namely "the impact on the landscape and scenic qualities of the bay". This issue was thus clearly determinative. It is clear that on this issue the Senior Commissioner found "that these development applications are seen as unacceptable" (par [47]). The appellants can be left in no doubt as to the reasons for the Senior Commissioner's decision and the reason for his preference for the views of Mr Angelini. It follows that this ground of appeal also fails. Orders 60. Accordingly I make the following orders in each case: (1) The appeal is dismissed. (2) The appellant must pay the respondent's costs.

I hereby certify that the preceding 60 paragraphs are a true copy of the reasons for judgment herein of the Honourable Mr Justice Lloyd.

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.