Hodgson v The Hills Shire Council - [2022] NSWLEC 73 - NSWLEC 2022 case summary — Zoe

NSWNSWLEC

Hodgson v The Hills Shire Council

[2022] NSWLEC 73

Land and Environment Court (NSW)|2022-02-07|Before: Duggan J

View original source

At a glance

Source facts

Court

Land and Environment Court (NSW)

Decision date

2022-02-07

Before

Duggan J

Source

Original judgment source is linked above.

Judgment (15 paragraphs)

[1]

Nature of proceedings

Before me in these proceedings were three notices of motion: 1. Amended Notice of Motion filed 3 December 2021 by Mr Brett Hodgson (the Appellant) (Appellant's Notice of Motion) seeking orders to further amend the grounds of appeal and leave to adduce further evidence; 2. Notice of Motion filed 11 November 2021 by the First Respondent, the Hills Shire Council (Council) (Council's Notice of Motion) seeking orders setting aside the Appellant's subpoena issued to the Rural Fire Service; and 3. Notice of Motion by the Second Respondent, New South Wales Rural Fire Services (RFS) (RFS's Notice of Motion) for which I granted leave to file in Court on 7 February 2022 also seeking orders setting aside the subpoena issued to it.
This judgment deals solely with order 3 sought by the Appellant in the Appellant's Notice of Motion: that he be granted leave to amend his Summons Seeking Leave to Appeal in accordance with the Further Amended Summons Seeking Leave to Appeal annexed to that notice of motion (Further Amended Summons).
This limited judgment is a result of the time spent on this single issue where only one day was allocated for the hearing of all issues, as well as the fact that if I determine not to grant the amendment to the appeal, the remainder of the issues contained in the notices of motion will be rendered of no utility. The balance of the Appellant's Notice of Motion, as well as the whole of the Council's Notice of Motion and the RFS's Notice of Motion were adjourned for mention before me on the date this judgment is delivered.
The Further Amended Summons seeks leave to appeal that part of Commissioner Clay's decision in Hodgson v The Hills Shire Council [2021] NSWLEC 1444 relating to Bushfire Risk in accordance with s 56A of the Land and Environment Court Act 1979 (NSW) (LEC Act). The Appellant has advanced 15 grounds of appeal in support of its appeal.
The primary proceedings were a merits appeal brought pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) (EP&A Act) in respect of the decision of the Council to refuse development application DA 1013/2019/HA in relation to the change of use and upgrading of a shed which, whilst approved as a rural shed in 1999, was adapted for use as a dwelling without development consent at Lot 9 Deposited Plan 241639 known as 18 Joylyn Road, Annangrove.

[3]

Amendments sought

The Appellant seeks, in effect, to abandon his three previous grounds of appeal and replace those grounds with 15 new grounds and relief identified as follows: ORDERS SOUGHT 1 Leave to appeal from the part of the decision below in relation to Bushfire Risk. 2 Appeal allowed. 3 Judgment (numbers 60 through 94) of the court below entered 10 August 2021 be set aside. 4 That the respondent Council make application on behalf of the appellant to external referral of the Bushfire Risk be undertaken by the New South Wales Rural Fire Service (NSWRFS) as per pursuant to section 4.14 clause (1A) of the Environmental Planning and Assessment Act 1979 for the assessment and determination of the development application the subject of the proceedings below with respect to Bushfire risk (the RFS determination) or take such other steps as the Court may direct. 5 That subject to the RFS determination, the matter be remitted to Acting Commissioner P Clay for further hearing. 6 Declaration that the respondent Council denied to the applicant procedural fairness in failing to obtain on his behalf from RFS an assessment and determination of the development application the subject of the proceedings below with respect to bushfire risk. 7 Further and other orders. 8 Costs. APPEAL GROUNDS 1 It is the applicant's view that Acting Commissioner P. Clay made the decision on the basis that the NSW RFS has not provided its conditions. The applicant alleges that the Hills Shire Council failed to provide the application process with requested in reply information to the NS'JV RFS within the prescribed time and therefore the NSW RFS were unable to deal with the application and provide its conditions which in turn was the basis upon which the appeal application was dismissed. 2 NSW RFS "Planning for Bushfire Protection" December 2006 Section 3.3 Exceptional Circumstances for APZs refers to the applicants situation and the requested in reply to the applicants assessment information which 1Nas never received by the NSW RFS from The Hills Shire Council for and on behalf of the applicant. 3 The Environmental Planning and Assessment Act 1979 Section 4.14 clause (1A) states: "If the consent authority is satisfied that the development does not conform to the relevant specifications and requirements, the consent authority may, despite subsection (1), grant consent to the carrying out of the development but only if it has consulted with the Commissioner of the NSW Rural Fire Service concerning measures to be taken with respect to the development to protect the persons, property and the environment from the danger that may arise from a bush fire." 4 The Acting Commissioner erred in determining the appeal without taking into account the need to require the concurrence or refusal of concurrence of the NSW Rural Fire Service (RFS) pursuant to s.4.13(8) Environmental Planning & Assessment Act 1979 (EPAA) where the Building Code of Australia (BCA) and the "Planning for Bushfire Protection 2006" (PBP) forming part of the BCA mandated a decision of the RFS concerning the "Alternative Solution" provided by the PBS in the consideration amended development application. 5 The Acting Commissioner erred in not taking into account the mandated requirement that the RFS perform a public administrative function concerning the amended development application specifically reserved to the RFS and requiring its statutory response for the "Alternative Solution" basis of complying with the Deemed - to - satisfy (DTS) prescribed by A3.3 and A3.4(b) Fuel Loads and A3.4(c) Flame Zone in PBP comprising part of the BCA. 6 The Acting Commissioner erred in not taking into account that the respondent Council owed a statutory duty that it consult with and obtain a statutory determination by the RFS as to the Alternative Solution basis of complying with the Deemed - to - satisfy (DTS) prescribed by A3.3 and A3.4(b) Fuel Loads and A3.4(c) Flame Zone in PBP comprising part of the BCA and the mandated requirement that the RFS perform a public administrative function concerning the amended development application specifically reserved to the RFS and requiring a statutory response. 7 The Acting Commissioner erred in directing the provision of a joint expert bushfire risk report as a sufficient basis for determining the appeal and without directing current compliance by the Respondent Council and by the RFS of matters mandated by the BCA and the PBP for decision by the RFS and where the Respondent Council had failed to pursue consultation with the RFS to the point of obtaining a statutory decision of the RFS. 8 That the Acting Commissioner erred in not taking into account a breach of statutory duty by the Respondent Council in failing to complete its consultation with the RFS and failing to require a statutory response from the RFS in circumstances where it had implicitly elected to consult on the question of fuel assessment and flame zone issues. 9 That the Acting Commissioner erred in not taking into account a breach of statutory duty by the RFS in its decision by letter 24 November 2020 addressed to the respondent Council, to leave the questions of an "alternative solution" prescribed by A3.3 of the PBP to the Land & Environment Court instead of performing its regulated function on the question of fuel assessment and flame zone issues. 10 That the Acting Commissioner in determining the appeal without requiring compliance by the Respondent Council and the RFS with a mandatory statutory duty for the Alternative Solution of the PBS concerning flame zones, denied to the applicant procedural fairness and natural justice. 11 That the Acting Commissioner in the exercise of his powers pursuant to s.39 Land & Environment Court Act 1979 (Court Act} failed entirely to have regard pursuant to s.39(4) of the Court Act to the mandatory requirements of the PBP for Alternative Solutions and the necessary site specific application by the RFS of its statutory duty and policies with respect to fuel assessment and flame zone issues and its special knowledge in dealing with life threatening bushfire risk planning issues. 12 That the Acting Commissioner erred in applying s.39(6) of the Court Act in determining the hearing below based upon limited opinion evidence of a joint bushfire expert report and without taking into account that the requirements of the PBP for Alternative Solutions were not merely facilitative but mandated. Particulars Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28 13 That the Acting Commissioner erred in failing to take into account the applicant's submission that referral to the RFS was mandated by the PBP for an Alternative Solution as to flame zone issues. Particulars Transcript 10 June 2021 page 15 at T:20 "It is my understanding that for an Alternate Solution it needs to be referred to the RFS". 14 The Acting Commissioner erred in wrongly construing the regulated definition of "infill development" contained in PBP 2006 and in taking into account extraneous and irrelevant matters in deciding that the application of "infill development" was not available to the applicant when in fact it was. Particulars (a) The Court recited the definition at paragraph 79 Reasons; (b) It is submitted that "Extension of existing services" in its definition as "including public roads. electricity, water or sewerage ...." is to be construed ejusdem generis and means an extension of services in the public area of roads and lands and not an extension of services to an "existing allotment" which is the subject of a development application; (c) In paragraphs 84. 85 and 86 Reasons the Court has wrongly reasoned that a necessary extension of services within the existing allotment. excludes the possibility of applying the alternative discretion permitted by "infill development". 15 The Acting Commissioner erred and applied a wrong principle in finding that the failure of the application to meet an objective of PBP 2006 to provide appropriate separation between a hazard and building (APZ) mandated disqualification of the application from approval even if "infill development" was permitted. Particulars (a) Section 4.3.5 of PBP 2006 permits approval, even if the regulated APZ is not available; (b) A reduction of APZ requirements is regulated by s.3.3 of PBP 2006 under the heading "3.3 Exceptional circumstances for APZ's" (see paragraph 81 Reasons); (c) The application of "Exceptional circumstances" requires a merits review on a case by case basis and where prescriptive compliance is "unreasonable and unnecessary" having regard to "location or type of use"; (d) As submitted in other Grounds of Appeal. an administrative decision by the RFS concerning "infill development" and "Exceptional circumstances" is mandated as the public authority having the best local knowledge and expertise. prior to any decision by the Court; (e) A rejection on APZ grounds requires a consideration "of the circumstances of the case" and a finding that prescriptive compliance is not "unreasonable and unnecessary"; see paragraph 81 Reasons. 16 The Acting Commissioner acted on a wrong principle and relied upon extraneous and irrelevant matters in its findings concerning the asserted absence of or need for evidence of a "bush fire emergency plan" (paragraph 91 Reasons) and in applying the following reasons: (a) "There was no such plan in evidence and no evidence as to what the contents would be and how it would meet the aims and objectives of PBP 2006"; (b) "Any solution which relies upon an assumption that human beings will behave in a particular way in the event of bush fire is inherently unsound; (c) "The behaviour of bush fires is unpredictable. and the behaviour of human beings is similarly unpredictable"; (d) "It is not a satisfactory arrangement in the face of a bush fire threat to simply say the occupiers of a residential building will leave the building before the threat to the building materializes"; (e) (Sic.) (Otherwise) "Much of PBP 2006 and its successors would simply be unnecessary. All that would be required is safe egress and not the provision of APZ's and the like". Particulars (responding to the above) (a) These matters are regulated bys.4.3.5 and s.3.3 of the PBP 2006 and concern matters "in rem" affecting the subject land and neither regulate nor require submission or evidence of a bush fire emergency plan. It is conceded that the RFS may impose as a condition a particular bush fire plan. Otherwise media notices of approaching bush fires are usually accompanied by RFS warnings to residents to "watch and act" in accordance with their personal bush fire plans which may be either conditioned or voluntary; (b) The conclusion by the Court is contrary to the regulations (see for example PBP 2006 clause 2.4 Table for integrated Residential/Rural categories) at the second bullet point "assume able bodied residents with motor car available". It is submitted from this regulation that residents are expected to be mentally competent in applying their bush fire emergency plan. driving a motor vehicle and in "watching and acting". The Court is not entitled to apply its own contrary opinion in applying the regulations and does not have the expertise of the RFS in attempting to do so; (c) As in (b) above. The Court did not have before it psychological or other evidence as to unpredictable behaviour of human beings. It is submitted that even if it had such evidence. it would be extraneous and irrelevant and contrary to the reasonable construction of the PBP 2006; (d) It is submitted that a general bush fire emergency plan is not mandated but encouraged by the RFS and in simple terms is "watch and act". coupled with media warnings on occasion that it is too late to leave a property. There is generally plenty of media warning to leave; (e) The four previous reasons 3 (a) to 3 Id) applied a wrong principle and extraneous matters contrary to the regulations and applied matters not in evidence as if they were matters of judicial notice. It is submitted Ito the contrary) that the application of the PBP 2006 is most necessary and determines multiple issues including merits issues reserved to the RFS. 17 The Acting Commissioner erred in finding that "there was no evidence of the benefit to the principal dwelling of the APZ to be provided for the shed" and in failing to take into account material considerations to be inferred from the evidence. Particulars (a) It is an oxymoron that any APZ conditioned for the shed would be a benefit to the principal dwelling: (it might for example allow a neighbouring property to comprise part of the APZ on the basis that the RFS has statutory authority to require land owners to reduce vegetation and fuel load and regularly does so); (b) An obvious benefit for additional "sleep out accommodation" is the potential alternative property location of residents and additional visitors to defend in the case of bush fire and to "watch and act"; (c) The conversion of the shed to a "sleep out" will provide geographical services of electricity and water use for putting out spot fires and pumping water. charging firefighting equipment and charging mobile phones in an additional location and with possible further persons to fight fires in that location on the allotment; (d) Providing a further building in which first aid can be rendered for injuries suffered in firefighting. whether by residents or by the RFS; (e) The observation "there will still be vegetation between the shed and the principal dwelling" (to the extent that it may be relevant to APZ) is not a reason for refusal since it can be conditioned that the vegetation be maintained as part of the consent; (f) These benefits are submitted to be self-evident on the available evidence and do not require "articulation" as suggested. The applicant was unrepresented and neither he nor his expert was asked to elaborate on "benefit to the principal dwelling". 18 The Acting Commissioner acted upon a wrong principle and took into account extraneous and irrelevant matters in its finding in paragraph 93 Reasons that "the location of the shed is not truly a constraint to the creation of the APZ to the South. The shed is obviously in its present location, but it is the proposed change of use to a residential use which has created the constrain". Particulars (a) The issue is one of "infill development" rejected by the Court) and where the PBP 2006 permits the development of land by the erection of a "residential building" that is the nature of the application. The development application is not prohibited; (b) Sections 4.3.5 and 3.3 of the PBP 2006 authorise the subject application for discretionary consent. Where the application is within power. and has APZ and access issues. it is submitted as inappropriate to find that the APZ "constraint has been self imposed". To say this. is to say that an authorised change of use otherwise approved by the Court "as ancillary to the principal dwelling" (see paragraph 5 Reasons) is to be rejected solely on bush fire risk grounds and that an authorised application should never have been made; (c) It is submitted that the Court in seeking to find other reasons to support its erroneous decision that the application could not assert "infill development" nor "special circumstances" assumed that its decision was not in error concerning the application of these definitions.
During the course of submissions, the Appellant accepted that the Court had no power to grant the relief sought in orders 4 and 6 in the context of a s 56A appeal and did not press the amendment to include such orders.

[4]

Power to amend

The Appellant seeks leave to amend the appeal pursuant to the provisions of s 64(1)(b) of the Civil Procedure Act 2005 (NSW) (CP Act), which provides: 64 Amendment of documents generally (1) At any stage of proceedings, the court may order - … (b) that leave be granted to a party to amend any document in the proceedings.
In determining application such as those made pursuant to s 64, the guiding principles in Div 1 of the CP Act provide: 56 Overriding purpose (1) The overriding purpose of this Act and of rules of court, in their application to civil proceedings, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. (2) The court must seek to give effect to the overriding purpose when it exercises any power given to it by this Act or by rules of court and when it interprets any provision of this Act or of any such rule. 57 Objects of case management (1) For the purpose of furthering the overriding purpose referred to in section 56 (1), proceedings in any court are to be managed having regard to the following objects - (a) the just determination of the proceedings, (b) the efficient disposal of the business of the court, (c) the efficient use of available judicial and administrative resources, (d) the timely disposal of the proceedings, and all other proceedings in the court, at a cost affordable by the respective parties. (2) This Act and any rules of court are to be so construed and applied, and the practice and procedure of the courts are to be so regulated, as best to ensure the attainment of the objects referred to in subsection (1). 58 Court to follow dictates of justice (1) In deciding - (a) whether to make any order or direction for the management of proceedings, including - (i) any order for the amendment of a document, and … (b) the terms in which any such order or direction is to be made, the court must seek to act in accordance with the dictates of justice. (2) For the purpose of determining what are the dictates of justice in a particular case, the court - (a) must have regard to the provisions of sections 56 and 57, and (b) may have regard to the following matters to the extent to which it considers them relevant - (i) the degree of difficulty or complexity to which the issues in the proceedings give rise, (ii) the degree of expedition with which the respective parties have approached the proceedings, including the degree to which they have been timely in their interlocutory activities, (iii) the degree to which any lack of expedition in approaching the proceedings has arisen from circumstances beyond the control of the respective parties, (iv the degree to which the respective parties have fulfilled their duties under section 56 (3), (v) the use that any party has made, or could have made, of any opportunity that has been available to the party in the course of the proceedings, whether under rules of court, the practice of the court or any direction of a procedural nature given in the proceedings, (vi) the degree of injustice that would be suffered by the respective parties as a consequence of any order or direction, (vii) such other matters as the court considers relevant in the circumstances of the case.

[9]

Findings

The proper approach to the determination of the application, as a starting point, is to determine whether any of the grounds sought to now be raised are capable of being characterised as a question of law capable of vitiating the Commissioner's decision. If not, it would be inappropriate, having regard to the interests of justice as provided for in the guiding principles of the CP Act, to permit the amendment to be made as there would be no utility in the appeal but a consequential cost impost, together with a burden on the resources of the parties and the Court.
However, I accept that in making such a decision at an interlocutory stage it is appropriate that caution be exercised such that an appellant is not precluded from bringing an otherwise appropriate appeal on the basis of a not fully argued interlocutory application. To guard against such an outcome I accept the submissions of the Council that it is appropriate to consider the amendments in the context of the same issues that would have arisen if this was an application to strike out the grounds of appeal. In such a circumstance one of the relevant questions would be whether the grounds were manifestly groundless in that they had no reasonable prospects of success in the sense of the test as was identified in General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 129-130 as: …The test to be applied has been variously expressed; "so obviously untenable that it cannot possibly succeed"; "manifestly groundless"; "so manifestly faulty that it does not admit of argument"; "discloses a case which the Court is satisfied cannot succeed"; "under no possibility can there be a good cause of action"; "be manifest that to allow them" (the pleadings) "to stand would involve useless expense". At times the test has been put as high as saying that the case must be so plain and obvious that the court can say at once that the statement of claim, even if proved, cannot succeed; or "so manifest on the view of the pleadings, merely reading through them, that it is a case that does not admit of reasonable argument"; "so to speak apparent at a glance". … But once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it, then it is not competent for the court to dismiss the action as frivolous and vexatious and an abuse of process."
For the reasons that follow, I find that each of the grounds proposed to be raised in the Further Amended Summons have no prospects of success and as such, consistent with the guiding principles of the CP Act, I refuse to grant the leave sought to amend the appeal.

[10]

Grounds 4-13

Essential to the success of these grounds is that the Appellant must demonstrate that it was legally required by s 4.14(1A) of the EP&A Act that the Appellant's development application be referred to the RFS for consideration prior to the determination of the development application and that the development application was not so referred. The Appellant's position cannot be accepted.
As was observed by the Commissioner at [74] of his decision, consultation with the RFS had occurred and, accordingly, the requirements of s 4.14(1A) had been met at the time of the determination of the development application.
To the extent that the Appellant sought to submit that s 4.14 conferred upon the RFS some mandatory legislative obligation to provide advice or to develop an alternative solution upon a referral in circumstances where a development application did not conform with the deemed to comply provisions of PBP or some other control, such a construction is not open on any rational reading of the legislative language of s 4.14. Further, it was no part of the Appellant's development application the subject of consideration by the Court or referral to the RFS that he was relying upon an alternative solution for the development that was proposed at the hearing. As was made plain in the evidence from the Appellant's own fire expert where he agreed in the joint report that: It is agreed that: … 2. The Method 2 calculations in the Applicants Bushfire Hazard Assessment dated 24th August 2020 relate to the secondary dwelling which has been removed from the proposal and are no longer relevant. 3. The Bushfire Attach Level assessment of Shed 1 and associated habitable spaces ("sleepout") are determined using Method 1 AS3959 (2009). …
There is no legislative or other identifiable foundation to suggest that there was a mandatory obligation on the RFS or the Commissioner to develop an alternative solution for an application once it became apparent that the development application, absent an alternative solution, was to be refused on merit. The formulation of the nature and scope of a development application is entirely in the hands of an applicant for development consent, the obligation that falls to the Commissioner is to determine that application as formulated in accordance with the law.
The Commissioner further observed at [75]-[76] of his decision: 75 The Applicants were granted leave to make written submissions in reply, and on this subject first submitted, after referring to s 4.14(1A) of the EPA Act, that: "The Court may consult the Commissioner of the NSW Rural Fire Service for advice." 76 This submission I took to mean that if the Court was not satisfied with the state of the bushfire evidence then it could seek the opinion of the RFS. Clearly that is not an appropriate or available course. The Court must decide the case on the basis of the evidence before it, which would include advice from the RFS if such advice had been proffered. These observations are entirely orthodox. The case was conducted in the usual course with evidence being called and submissions being made. Once the evidence was closed and the submissions made it fell to the Commissioner to decide the case on the basis of the case before him. He did so. There was no mandatory obligation upon the Commissioner to seek further advice of the RFS relating to matters that formed no part of the application before him during the hearing and certainly not at any time after the hearing had been completed.

[11]

Grounds 14-18

To the extent that the Appellant contends that the Commissioner misconstrued the definition of infill development as defined in PBP such an error if it was made would not have vitiated the Commissioner's decision. As is made plain in the Commissioner's decision at [87]-[89]: 87 The reliance by the Applicants of the provisions relating to infill development are misplaced. 88 In any event, the proposal fails to meet the principle or requirement that notwithstanding the reduced APZ [asset protection zone] that other measures, in combination, will meet the relevant radiant heat levels specified in the performance criteria for APZs and will achieve the aim and objectives of PBP. So much is evident from the evidence of the bushfire experts extracted at [71] above - it is the common position of the bushfire experts that the proposal does not meet the objective of PBP 2006 to provide appropriate separation between a hazard and building, which in combination with other measures prevent direct flame contact and material ignition. 89 It follows that even when the provisions of PBP 2016, which are designed to allow for development in the constrained circumstances of infill development, are considered the proposal fails.
The Commissioner considered the relevant provisions of PBP as it related to the development on both alternatives: as if it was infill development; and, as if, as he found, it was not. Accordingly, even if he committed the error as contended the error would not vitiate the decision as the Commissioner found that on merit the development, even if it was infill development, would have warranted refusal.
To the extent that the Appellant contends that a finding of infill development triggered a mandatory requirement for the Commissioner to adjourn the proceedings to refer the application to the RFS to enable it to formulate an alternative solution and that this was a matter that went to jurisdiction and absent the referral, the Commissioner had no jurisdiction to determine the appeal. For the reasons outlined above, I reject the assertion that the RFS has any role in formulating for an applicant any part of an applicant's development application, it is a purely consultative body for the purposes of s 4.14.
Further, even if correct and the Commissioner was denied jurisdiction, he retained the power to dismiss the appeal, which he did. The Commissioner had a discretion as to the conduct of the trial in all circumstances, including the circumstances propounded by the Appellant. There was no mandatory requirement for the Commissioner to adjourn the proceedings, nor was he asked to do so. The purported error does not have the consequence contended for by the Appellant and even if it did it would not vitiate the decision of the Commissioner.