Hooper v Port Stephens Council and Anor

CASES CITED: F & D Bonnacorso v City of Canada Bay Council and Others (No 2) [2007] NSWLEC 537; (2008) 158 LGERA 250

DATES OF HEARING: 24 June 2010 25 June 2010

APPLICANT In person FIRST RESPONDENT Mr M Fraser LEGAL REPRESENTATIVES: SOLICITOR Harris Wheeler Lawyers SECOND RESONDENT Mr P Larkin SOLICITOR Halletts Solicitors

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

40010 of 2010 Hooper v Port Stephens Council and Anor

EX TEMPORE JUDGMENT 1 Her Honour: The Applicant, Mr Hooper, has filed in these Class 4 proceedings an amended summons and Amended Points of Claim (APOC) which allege various errors or shortcomings in the Council's determination of a development consent for a house DA 16-2009-667-1 in Port Stephens on the north coast of NSW. Development consent was granted by eleven councillors on 15 December 2009. Mr Hooper is representing himself.

2 The amended summons seeks: 1. SET ASIDE [ABOLISH] the DEVELOPMENT APPROVAL of PORT STEPHENS COUNCIL [ PSC] WHO GRANTED CONSENT TO ERECT A three storey dwelling at 25 Gloucester Street Nelson Bay on 15 December 2009. … 2. PSC staff during the D/A assessment proves practiced and/or allow improper conduct to prevail having the direct effect to produce flawed documents. 3. Senior PSC Health and building Surveyor's independence was compromised allowing professional misconduct to prevail resulting in a bias in respect to the D/A proposal. 4. the author of the PSC "REPORT" and "ASSESSMENT' documents used subjective claims and answers that failed to recognize the force of PSC's-LEP 2000 and DCP 2007 that prevented the documents being constructed with definitive claims and answers having the direct effect to produce flawed/unreliable documents. 5. PSC COUNCILLORS (11) on 15 December 2009 voted unanimously to accept the recommendations of the "REPORT" that was a flawed and unreliable document. 3 The amended points of claim identifies ten issues as follows: 1. The development application (DA) form has a description of a proposed development that is foreign to the building and development industry and has caused mischief during the assessment process. 2. The statement of environmental effects (SEE) is said to be deficient for various reasons such as it is generalised, vague and does not address critical issues such as site zoning, bulk and scale, mandatory building line. 3. The Customer Service DA checklist is criticised because a question mark is place next to the variation to building line box and did not therefore raise the State Environmental Planning Policy No 1 - Development Standards (SEPP 1) issue as it should have done. 4. A meeting on 28 September 2009 between Mr Hooper, the Applicant, and Mr Fawcett, a Council officer, is detailed and refers to a letter attaching a plan of the proposed development sent to residents inviting them to raise concerns if any. Mr Hooper raised concerns about lack of access to more detailed plans and the officer attended at his home and viewed the site for the next hour and discussed concerns raised. The Council officer is said to have made statements about the effect of the Port Stephens Development Control Plan 2007 (the DCP) which are said to show improper conduct and prevented him discharging his duties as an assessment officer. 5. At a meeting of 19 November 2009 between the Applicant and Greg Shields Council officer at the Council a conversation is paraphrased and statements attributed to the Council officer such as that he intended to sign off on the proposed development today. This is stated to give rise to a standard of care owed under the Local Government Act 1993 and a reasonable man would conclude there was improper conduct by that Council officer. 6. Is SEPP 1 variation needed for the proposed development due to variations from the Council's planning controls? 7. The final Health and Building Services checklist was signed off by Mr Shields on 18 December 2009 is said to raise serious issues of improper conduct because it was signed off after development consent was granted on 15 December 2009. That is irrelevant to the decision of the Council. Also raised is the absence of a SEPP 1 objection raised already in issue 6. There is a reference to other documents which might not have been before the Council in 7.6. 8. Alliance between Council staff and architect including the provision of further documents such as an amended SEE giving rise to improper conduct. 9. A critique of the Council assessment checklist by the Applicant raises merit issues but for SEPP 1 reference. 10. The report to the Council meeting of 15 December 2009 contains fraudulent misrepresentation because it generalises, fails to use words that are basic to skilled persons in the building and development industry, changes words to present a favourable report for councillors who would be unfamiliar with building and development industry and are unlikely to have skills and knowledge to assess compliance with planning controls the Local Environmental Plan 2000 (the LEP) and the DCP. 11. Summary of issues.

4 The Council submitted that if there was demonstrated material omission in the matters before the Council, in this case in the Council officer's report presented to the meeting of 15 December 2009, then there may be a judicial review ground. No such omission is alleged and none of the other issues raise recognised judicial review grounds. Where grounds allege improper conduct or fraudulent misrepresentation there is no evidence to support these allegations.

5 The Second Respondent adopted these submissions and added an additional submission. The APOC and documents in the Council file demonstrate that Mr Hooper lodged an objection with the Council and met officers on two occasions to identify his concerns. He had a different viewpoint to the staff assessing the matter. At the Council meeting where the decision to grant approval was made, Mr Hooper addressed the Council about his concerns. Mr Hallet, the Second Respondent, also addressed the meeting. The Council officer's report was not the only source of information for the councillors who decided the matter. The finding in F & D Bonnacorso v City of Canada Bay Council and Others (No 2) [2007] NSWLEC 537; (2008) 158 LGERA 250 should be applied. In that case Biscoe J held in similar circumstances there was no basis for finding that a council failed to take into account a relevant matter. None of the issues in the APOC establish that there was a failure to take into account relevant considerations. Further, there is no evidence to support the serious allegations made of improper conduct or fraudulent misrepresentation grounds.

Finding 6 These are judicial review proceedings, not merit review proceedings, a distinction which can be difficult for non lawyers to make. Mr Hooper, no doubt doing the best he can and raising his genuine concerns with the Council's decision to approve the development in question, has raised ten issues in the Amended Points of Claim which are said to be a basis for overturning the Council's grant of development consent. None of the issues raised are drafted in terms which identify a recognised ground of judicial review such as a failure to take into account a mandatory relevant consideration as required by the statutory scheme under the Environmental Planning and Assessment Act 1979. Being generous in interpreting the issues as if they are intended to reflect judicial review grounds, as submitted by the Council Mr Hooper can only succeed if, for example, there is a demonstrated material legal error in Council's considerations of the Second Respondent's DA when the councillors approved it on 15 December 2009.

7 Issues 1 (DA form), 2 (SEE), 3 (Customer service DA) are irrelevant matters which do not articulate any issue that can be raised in judicial review proceedings. 8 Issues 4 and 5 referring to details of the meetings of Mr Hooper with two Council officers involved in the assessment process also raise matters irrelevant to judicial review proceedings. 9 Issue 7 except for 7.6/7.7 and the SEPP 1 issue (also raised in issue 6), also raises matters irrelevant to judicial review proceedings. 10 Issue 9 raises wholly merits issues which are not able to be considered within judicial review proceedings. 11 To the extent that issues raise improper conduct or fraudulent misrepresentation the evidence provided in support in the APOC does not provide any basis for such allegations. There is no evidence to establish the matters in Issue 8 which is otherwise irrelevant or raises impermissible merit issues.

12 Issue 6 to the extent it raises absence of an application under SEPP 1 but not improper conduct allegations, and issue 10 assuming that actual misleading and material errors in the Council report before the Council on 15 December 2009 are identified, can remain to be argued by Mr Hooper. I will not at this stage dismiss the whole of the summons and APOC as submitted by the Second Respondent. 13 The issue which appears to be at the core of Mr Hooper's concerns is that the Second Respondent's proposed building approved by the Council was more than 9m in height and could not therefore be approved in the absence of a SEPP 1 objection in light of the Council's LEP. That issue needs to be the focus of Mr Hooper's evidence and submissions in my view.

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