Hewitt v Hurstville Council

Land and Environment Court (NSW)|2001-12-04|Before: Bignold J, Mr P

The Applicant's competing argument accepted that the decision of Lloyd J in Winten Property Group Ltd v North Sydney Council had formulated the proper approach that was required for the evaluation of an objection pursuant to SEPP No 1, but submitted that a fair reading of the Senior Commissioner's reasons for judgment revealed that he had adopted that approach. In particular, Counsel for the Applicant submitted as follows: - (i) The case proceeded before the Senior Commissioner on the common basis that cl 12(2) of SEPP No 5 relevantly imposed a development standard by specifying the maximum distance of 400 metres between the proposed development and the requisite facilities and services or the requisite transport service. (ii) The Senior Commissioner acceptance of Mr Relf's evidence implicitly adopted as the relevant objective of the development standard that a proposed housing development under SEPP No 5 have reasonable access to the requisite facilities and services or transport service to those facilities and services: vide par 34 of his judgment where the Senior Commissioner accepts Mr Relf's evidence on this matter. (iii) Similarly, it is implicit from the Senior Commissioner's acceptance of Mr Relf's evidence as recorded at par 34 of his judgment that by necessary implication he found that strict compliance with the development standard would not be consistent with the aims of SEPP No 1. (iv) At par 40 of his judgment, the Senior Commissioner expressly found on the basis of his acceptance of Mr Relf's evidence, that the objection pursuant to SEPP No 1 had been sustained and that the rigid application of the 400 m distance separation "would be unreasonable to apply". It necessarily followed that the Senior Commissioner found that the objection was well founded. (v) The Senior Commissioner's consideration of matters such as the nature and quality of the access between the proposed development and the local shopping centre and the probability that the residents of the proposed development would find the path of travel beneficial and convenient, in his determination upholding the objection pursuant to SEPP No 1, was not irrelevant to his task. On the contrary, they are very relevant to the consideration of the identified objective of the development standard, namely whether the proposed development has reasonable access to the requisite facilities and services and the bus transport service.

In order that I understood the full force and effect of the Senior Commissioner's acceptance of Mr Relf's evidence, Counsel for the Applicant, in her written submissions, summarised the content of Mr Relf's written report which was admitted into evidence before the Senior Commissioner as Exhibit H. Mr Relf's report was admitted into evidence as Exhibit H. In his report, at pages 5 and 6, he notes that in his view there is reasonable compliance with SEPP 5 clause 12, that there is a small complex of local shops including a fruit and vegetable shop and a deli, that there is a larger range of shops and services at a number of nearby regional centers all accessible by public transport. Bus lines, services and timetables are noted. Mr Relf concludes In summary, it is apparent that there are a comprehensive range of bus services that operate in the area within reasonable proximity to the proposed site that enable passengers to travel to all the major regional shopping centres in the region (at page 6). Mr Relf also considered the quality of access to facilities and services and/or transport. He noted at page 6, it is apparent that whilst the 450 metre distance marginally exceeds the recommended distance the overall topography readily satisfies the topography requirements that will suit older people and people with disabilities. There followed considerable analysis of the route to each of 3 different bus routes, examination of the timetables of those services, leading to the conclusion (at page 7) that Clearly, while the distance to the existing bus stops exceeds the recommended 400 metres it is apparent that these pathways are readily accessible to older people or people with disabilities. Finally, consideration was given to the availability of railway services. Mr Relf made the overall conclusion, a conclusion which the Senior Commissioner preferred to the conclusion proffered by the Council's expert, and a conclusion which was adopted by the Senior Commissioner, that the actual access provided by the proposed development reasonably complied with the requirements of SEPP 5 clause 12. He concluded (at page 7) therefore it is apparent that the objective of reasonable access to services has been met. G. CONCLUSIONS AND ORDERS

In my judgment, the Council has not established that the Senior Commissioner fell into legal error in upholding the Applicant's objection pursuant to SEPP No 1 that compliance with the development standard imposed by cl 12(2) of SEPP No 5 is unreasonable in the circumstances of this case. In this respect, I should emphasise that the Council's appeal grounds did not include grounds to the effect that (i) there were no reasons given for his determination upholding the objection; (ii) the identified objective of the development standard was legally erroneous; and (iii) the Senior Commissioner's determination of the objection and the development application had telescoped into one process an overall merit evaluation of the development proposal.

In so concluding, that the Council has not established relevant legal error, I would generally adopt the analysis of the Senior Commissioner's reasons for judgment that has been proffered by Counsel for the Applicant, to the effect that the Senior Commissioner complied with the approach for the proper consideration and determination of an objection pursuant to SEPP No 1 enunciated in the judgment of Lloyd J in the Winten Property Group case, even though that compliance, in some important respects, is only discernible by the process of drawing necessary implications from relevant findings and reasoning contained in his judgment. Having heard the present appeal, it would obviously have been preferable for the Senior Commissioner to have explicitly addressed the relevant questions rather than leaving the matter to be gleaned only by the process of necessary implication and inference.

Again, by a process of necessary implication I am satisfied that the Senior Commissioner's judgment made the necessary findings concerning the relevant requirements imposed by cl 12 of SEPP No 5 in the present case.

Finally, I accept the Applicant's submissions that the Senior Commissioner in upholding the objection pursuant to SEPP No 1 did not take into consideration irrelevant matters, when he considered such things as the nature and quality of the access between the proposed development and the local shopping centre and the adjacent bus stop, and the Applicant's preparedness to accept the Council's condition that he provide a constructed footpath over the path of travel.

The only matter that has caused me serious doubt is the question only raised by the Council on the hearing of the present appeal, as to whether the Senior Commissioner's upholding of the objection pursuant to SEPP No 1 included that part of the objection that relates to the distance from the proposed development to the bus stop located adjacent to the local shopping centre.

Unfortunately, the Senior Commissioner's reasons for judgment make no specific reference to this aspect of the Applicant's objection. They only refer to the local shopping centre, which as I have earlier mentioned does not satisfy the full requirements of cl 12(1) of SEPP No 5 for the provision of requisite facilities and services.

Whereas it is possible that the Senior Commissioner did not appreciate the fact that the local shopping centre did not provide the requisite facilities and services, there can be no doubt that both the Applicant's written objection pursuant to SEPP No 1 and the Applicant's expert evidence via Mr Handford and Mr Relf (and especially the latter) did extend to the location of the bus stop adjacent to the local shopping centre, which bus stop, like the shops, was more than 400 metres from the site of the proposed development.

In these circumstances, and despite the Senior Commissioner's total failure to advert to the transport service required to be available by cl 12(2) of SEPP No 5, the preferable interpretation of the scope and content and effect of the Senior Commissioner's upholding of the Applicant's objection pursuant to SEPP No 1, is that he was upholding the objection in its entirety, namely in respect of both the local shopping centre and the adjacent bus stop which were both situate more than 400 metres from the site of the proposed development.

Such a result does not involve any straining of the language employed by the Senior Commissioner since clearly, when he states at par 40 "that the objection has been sustained", it is the entire objection that is being referred to (and that objection undoubtedly included the exceedance of the 400 m distance between the proposed development and the bus stop located adjacent to the local shopping centre). Similarly, when he states at par 40 that his conclusion that the objection had been sustained is based upon his acceptance of Mr Relf's evidence, that evidence undoubtedly included Mr Relf's opinion that the proposal has reasonable access to a transport service to major suburban and regional shopping centres (vide par 34 of the judgment). These twin facts satisfactorily answer any doubt concerning the scope and effect of the Senior Commissioner's determination upholding the objection pursuant to SEPP No 1 which doubt solely arises by virtue of the fact that the Senior Commissioner's reasons only refer to the local shopping centre and make no direct or express reference to the requisite transport service.

In so reading and understanding the reasons for judgment of the Senior Commissioner in this case, I have applied the long established and consistent approach taken by this Court when determining an appeal pursuant to s 56A of the LEC Act, namely to avoid a "fine tooth comb" scrutiny of reasons for judgment of a commissioner, as a non-lawyer, delegate of the Court. This approach can be traced back to the decision of the Court of Appeal in Brimbella v Mosman Municipal Council (1985) 79 LGERA 367. when that Court possessed the appellate jurisdiction that is now vested in this Court by s 56A.

In so concluding that the Senior Commissioner's determination had the effect of upholding the Applicant's objection pursuant to SEPP No 1 in its entirety, I have not overlooked the Council's criticism of the lack of express finding by the Senior Commissioner on relevant matters raised by the requirements of cl 12(2)(b) of SEPP No 5.

In particular, the Council relying upon the following evidence of Mr Handford under cross-examination, (Transcript 21 June 2001 at p 61/2) submitted that the Senior Commissioner's judgment is silent on the question of the satisfactoriness of the arrangements for the return bus trip (being a relevant requirement in terms of cl 12(2)(b)(iii): Rigg: So that the trip if one is doing shopping for a full range of products..(not transcribable)..at this particular shopping centre, the shopping trip must continue? Handford: That's right and the SEPP envisages that the shopping trip may continue and it says 400 metres to the public transport which you then travel wherever to get to somewhere that then leads you to 400 metres to the shopping centre that - all those services you're seeking. Rigg: In this case for example on the return trip you're on the - Handford: Other side of the road. Rigg: Other side of Henry Lawson Drive and to travel across the overpass and then back to the site the trip then becomes closer to 800 than to 400? Handford: Yeah, I think it's probably closer to 700 but I agree that it's over 400 and closer to 700 than 400.

I readily accept Council's submission that the requirements of cl 12(2)(b) of SEPP No 5 include all three elements or features of the requisite transport service that are specified in sub-pars (i), (ii) and (iii) respectively.

Likewise I readily accept that the extract from the Transcript suggests that whereas the bus stop adjacent to the local shopping centre may be 450 metres distant from the site of the proposed development on its outward journey, the location of the bus stop on the homeward journey may require a travel distance of some 700 metres to the proposed development.

Precisely what (if any) effect was given to this evidence by the Senior Commissioner's judgment, is not readily discernible from his reasons for judgment. But even assuming from the absence of any relevant finding in the reasons for judgment that the Senior Commissioner either ignored or discarded this evidence, that result would not demonstrate any error of law on his part. Arguably, such a result may suggest a mistake of fact on the part of the Senior Commissioner (but even this is doubtful in view of his total acceptance of Mr Relf's evidence which dealt with the details of the various bus services that were available). However, even assuming that such an error of fact was made, it would be totally unavailing to the Council in this case, where the Court's role is confined to the correction of legal error.

For all the foregoing reasons, the appeal must be dismissed.

Accordingly, I make the following orders:
Appeal dismissed
Question of costs reserved.

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.

CITATION : Hewitt v Hurstville Council [2001] NSWLEC 294 APPLICANT: Hewitt PARTIES : RESONDENT: Hurstville City Council FILE NUMBER(S) : 11096 of 2000 CORAM: Bignold J KEY ISSUES: Development Application :- Whether in upholding objection pursuant to SEPP No 1-Commissioner fell into legal error. Land and Environment Court Act 1979, s 56A LEGISLATION CITED: SEPP No 5-Housing for Older People etc. SEPP No 1-Development Standards Brimbella v Mosman Municipal Council (1985) 79 LGERA 367; CASES CITED: Hooker Corporation Pty Ltd v Hornsby Shire Council (NSWLEC 2 June unreported); Memel Holdings Pty Limited v Pittwater Council (2000) 110 LGERA 217; Winten Property Group Ltd v North Sydney Council (2001) NSWLEC 46 DATES OF HEARING: 4 December 2001 DATE OF JUDGMENT: 12/21/2001

(2000) 110 LGERA 217

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