Hooper v Port Stephens Council and Anor

Forsyth v Wilesmith [2008] NSWLEC 259 Hooper v Port Stephens Council and Anor [2010] NSWLEC 107 CASES CITED: Schroders Australia Property Management Ltd v Shoalhaven City Council [2001] NSWCA 74 Timbarra Protection Coalition Inc v Ross Mining NL [1999] NSWCA 8; (1999) 46 NSWLR 55 Zhang v Canterbury City Council [1999] NSWLEC 209; (1999) 105 LGERA 18

DATES OF HEARING: 24 June 2010 25 June 2010

FIRST RESPONDENT Mr M Fraser LEGAL REPRESENTATIVES: SOLICITORS Harris Wheeler

SECOND RESPONDENT Mr P Larkin SOLICITORS Halletts Solicitors

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

40010 of 2010 Hooper v Port Stephens Council and Anor (No 2)

JUDGMENT 1 Her Honour: The Applicant, Mr Hooper, has commenced Class 4 proceedings challenging the grant of development consent for a residential home to the Second Respondent, Mr Hallett, by Port Stephens Council on 15 December 2009. In Hooper v Port Stephens Council and Anor [2010] NSWLEC 107 (Hooper No 1) I held that many of the issues raised in the Amended Points of Claim (APOC), filed 1 June 2010, could not be pursued in these judicial review proceedings. It is necessary to finally determine the remaining issues raised by the APOC. Those I held could be raised are issues 6, 7.6/7.7 and 10.

2 Issue 6 in the APOC raises whether there was a need for a State Environmental Planning Policy No 1 - Development Standards (SEPP 1) application to vary a development standard to be before the Council when it determined to grant development consent. This was argued to be necessary because there was a failure to comply with a relevant development standard, being the height limit of 9m specified in the Port Stephens Local Environmental Plan 2000 (the LEP). Part of issue 7 in the APOC, 7.6/7.7, identifies that there were documents that may not have been before the Council at the time the decision was made to approve development which should have been. Issue 10 in the APOC raises in general terms issues with the Council officer's assessment report prepared for the 15 December 2009 meeting which was the basis for the recommendation to the Council for the approval of the Second Respondent's development application (DA). Evidence 3 The Council tendered a two-volume bundle. It contains the Council's file on DA 16-2009-667-1 (the Second Respondent's DA), correspondence between Harris Wheeler Lawyers and Mr Hooper, the LEP, and Mr Hallett's presentation notes to Council (dated 15 December 2009).

4 Mr Hooper tendered a number of documents which were collectively recorded as exhibit A including: (i) a copy of the Council's public notification of the Second Respondent's DA in the Port Stephens Examiner dated 24 September 2009; (ii) an advertising copy of an architect's plan of the proposed development dated 17 August 2009 showing elevations and surveyed boundaries of the property, accompanied by a photocopied enlargement of the same plan; (iii) a letter from Council dated 8 October 2009 acknowledging receipt of Mr Hooper's development objection; (iv) Mr Hooper's presentation materials used by him when he addressed the Council meeting on 15 December 2009; (v) a copy of a development application for an adjoining property and the notice of determination dated 23 December 1998; (vi) extracts from the Port Stephens planning instruments and SEPP 1; and (vii) a photographic montage. 5 It is noted that any hand written notations on the copies of any documents included in Mr Hooper's bundle do not form part of his exhibit. 6 Mr Hooper read his affidavit sworn 11 January 2010 which identifies his two written objections to the Second Respondent's DA and his meeting with the Council building surveyor, Mr Greg Shields. Copies of his objections and the Council meeting minutes of 15 December 2009 are annexed.

7 The Second Respondent tendered an undated scale survey plan of the subject property. The Second Respondent also tendered parts of the affidavit sworn 15 June 2010 by Brian Forbes Watson-Will, a former Port Stephens councillor, which identify Mr Watson-Will's observations of Council activities and meetings. Mr Watson-Will attended the 15 December 2009 Council committee meeting as an observer, and states his opinion that "[b]oth parties offered strong relevant points in their respective 5 minute addresses, both for and against" the subject DA.

8 A useful chronology was supplied by the Second Respondent as follows: 15 September 2009 DA lodged 28 September 2009 Inspection by Council officers of Mr Hooper's property and subject site 8 October 2009 First objection by Mr Hooper, dated 6 October 2009, received by Council 8 October 2009 First Addendum to the Statement of Environmental Effects (SOEE) 10 October 2009 DA called to Council by Cr Nell 28 October 2009 Second Addendum to SOEE 30 October 2009 SEPP 1 application 6 November 2009 Third Addendum to SOEE 12 November 2009 Amended plans, reducing the height of the development below 9m, lodged with Council 26 November 2009 Second objection of Mr Hooper, dated 25 November 2009 received by fax 15 December 2009 Ordinary Council meeting - development consent granted 17 December 2009 Notice of Determination issued

Port Stephens Local Environmental Plan 2000 9 The land in question is zoned residential 2(a) (Residential "A" zone) under the LEP.

10 The description and objectives of the 2(a) - Residential "A" zone in the LEP are: (1) Description of the zone The Residential "A" Zone is characterised by one and two storey dwelling-houses and dual occupancy housing. Townhouses, flats and units up to two storeys may occur throughout the zone. Dwellings may also be erected on small lots in specially designed subdivisions. Small-scale commercial activities compatible with a residential neighbourhood and a variety of community uses may also be present in this zone. (2) Objectives of the zone The objectives of the Residential "A" Zone are: (a) to encourage a range of residential development providing for a variety of housing types and designs, densities and associated land uses, with adequate levels of privacy, solar access, open space, visual amenity and services, and (b) to ensure that infill development has regard to the character of the area in which it is proposed and does not have an unacceptable effect on adjoining land by way of shading, invasion of privacy, noise and the like, Issue 10 11 The Applicant presented his case by raising shortcomings with the Council officer's report in various respects, essentially matters raised in relation to issue 10 in the APOC. As this also addresses the issue of building height giving rise to the SEPP 1 argument (issue 6) I will consider issue 10 first.

(i) Height of building 12 The LEP dictionary defines "height" as: Height, in relation to a building, means the maximum height of the building measured vertically from the natural ground level or the finished ground level of the completed building, whichever is the lower. 13 A key issue is whether the building approved is 9m as determined in accordance with the LEP definition. The height limit of houses in the residential 2(a) zone is 9m, as specified in cl 19(1)(c) of the LEP. If it is 9m, the proposed building complied with the relevant height limit. If not, the development could not be approved without a SEPP 1 application to vary that development standard. The DA as originally filed included a SEPP 1 application seeking a variation of the height limit as the building was then considered to be higher than 9m. The plans dated 18 August 2009 were amended in November 2009 so that the building complied with the height limit of 9m, according to the Second Respondent. The amended plans were approved by the Council on 15 December 2009 without a SEPP 1 application. 14 The Council officer's report for the meeting of 15 December 2009 provided a table of various requirements in the LEP and the Port Stephens Development Control Plan 2007 (the DCP) and stated whether these were met or not. In relation to building height, the table states that the LEP requires a height of no more than 9m and that this requirement is complied with.

15 Mr Hooper submits that the appropriate calculation of height is taken as the difference between the RLs on the plan for the proposed overall roof height (RL 38.82m) and the RL for the underside of the garage concrete slab (29.398m). This results in the height of the building being 9.422m.

16 The Second Respondent and the Council state that the definition of height in the LEP requires the measurement to be taken vertically in the same plane to the natural ground level or the finished ground level of the completed building, whichever is the lower at a particular point. If the height is measured vertically from the highest part of the roof of RL 38.82m to the natural ground level, it being lower than the finished ground level of the building at that point, the height complies with the LEP. The LEP definition of "height" requires that measurement must be in the same vertical plane, that is, immediately under the height being measured. 17 I agree with the Respondents' submissions. The definition of height in the LEP requires the measurement of height along a vertical plane at any point. The Respondents' approach is correct in terms of applying the definition in the LEP. The building height is to be measured vertically at RL 38.82 to the natural ground level, that being lower than the finished ground level at that point on the same vertical plane. The building at that point complies with the maximum height of 9m specified in the LEP. 18 The Applicant's approach is not correct. Rather he compares two heights on different vertical planes resulting in the incorrect minimum height being calculated contrary to the terms of the definition. (ii) Building impermissible three storeys 19 The DCP states that: Development standards for height are specified in the Port Stephens LEP 2000. PRINCIPLES B6.P25 Development should achieve a scale and height in keeping with the existing and desired future character of the street. B6.P26 Development should enable sharing of views. DEVELOPMENT CONTROLS B6.C45 Development must comply with the standards for maximum permissible height as stated in Port Stephens LEP 2000. B6.C46 Development in the Residential 2(a) zone must not exceed 2 storeys. Council may only approve loft spaces and dormer windows if they do not significantly alter roof design, roof pitch or building bulk, and do not cause adverse impacts on the privacy or amenity of neighbouring dwellings. Note: Dwellings with a loft space must comply with overall height limit 20 The Council officer's report for the meeting of 15 December 2009 includes the table of DCP requirements and identifies whether these are complied with. In relation to the proposed number of storeys the DCP limit is two. The proposed dwelling is identified as three storeys. The non compliance with the DCP is identified in the table. The report otherwise refers to streetscape, building height, bulk and scale and states that: The proposed three (3) storey dwelling is not considered to have a serious impact on the surrounding development and associated land uses that comprise residential occupancies. …The objectives and control principles of the DCP indicate that the bulk and scale of a dwelling in 2(a) Residential should be sympathetic to the local street content. The development is to take into consideration its design elements to minimise the impact on the amenity of the adjoining dwellings and land… 21 Mr Hooper submits that the building approved is three storeys and therefore impermissible under the DCP. A comparison of the photographic montages of various houses in the street shows that there are few three storey houses or houses which present as three storeys. The approval of the neighbouring duplex suggests that the dominant form of housing in the street is two storeys. 22 The Second Respondent submitted that the Council knew it was approving a part two storey and part three storey house. The Council officer's report so stated in the heading of the report. The Council officer's report refers specifically to a three storey building. A review of the photographs of the street taken by the Applicant suggests that there are a number of dwellings which present as three storeys. The Council adopted these submissions. 23 As submitted by the Second Respondent, the DCP has to be taken into account by the Council as held in Zhang v Canterbury City Council [1999] NSWLEC 209; (1999) 105 LGERA 18 at [28]. The Council is not bound to apply terms strictly (Zhang at [29]-[30]). It is clear from the Council report that the issue of non compliance with the DCP requirement of two storeys was identified for the Council and the issue of streetscape, scale and bulk was referred to in this context in the Council officer's report. Consequently relevant matters were identified for the Council. The Council was aware that the building proposed was in part three storeys and was not bound as a legal requirement to apply the DCP strictly in all its terms. The Applicant's submissions that the appearance and size of the building is otherwise out of keeping with the neighbourhood is a merit issue which is not a matter I can consider in these judicial review proceedings. (iii) Side setbacks 24 The DCP states at B6.8: PRINCIPLES B6.P27 Development should allow adequate building setbacks for landscape planting, privacy, natural light and ventilation between dwellings. B6.P28 Development should maintain small views between dwellings by providing a larger side setback for the upper storey. B6.P29 Dwellings built to the boundary should maintain privacy for neighbouring dwellings and associated private open space. B6.P30 Residential development should provide a rear setback area for deep soil planting that is sufficient to meet BASIX requirements and to provide screening to neighbours at the rear.

DEVELOPMENT CONTROLS B6.C49 Any external wall of a dwelling must be setback a minimum of 900mm from the side boundary. B6.C50 The upper level of a two-storey dwelling must be setback a minimum of 2m from the side boundary. Note 1: Eaves and lightweight awnings and screens may encroach up to 1/3 of the depth of the side setback area.

25 The Council officer's report for the meeting of 15 December 2009 refers in the table of DCP requirements to the side setbacks of 1.25m on the western side and 1.25m on the eastern side and notes the non compliance with the requirement of 2m. The report refers to boundary setbacks and states "… The setback encroachments are articulated to lessen the overall bulk and scale of the development." 26 The Applicant submitted that the DCP requires side setbacks of 2m for the upper level of two storey dwellings, and this has not been complied with. As the development does not comply with the DCP it has not been validly approved by the Council. 27 The Second Respondent referred to the amended SOEE which considers side setbacks and sets out a rationale for why the lesser setbacks are appropriate in light of the articulated side façade without eaves, and the DCP which contemplates that eaves and awnings may encroach by a third of the depth of the side setback area. Provided the DCP is considered the Council can vary its requirements where appropriate. The Council report demonstrates that relevant matters were drawn to the attention of the Council at the time they made their decision to grant development consent. The Council adopted these submissions. 28 I agree with the submissions of the Second Respondent as these correctly reflect the Council's legal obligations in relation to the consideration of the requirements in a DCP. Provided that it took into account the DCP it can choose to vary its strict requirements if the Council considers it reasonable to do so. (iv) Front setbacks 29 The DCP defines "front setback" as: … the shortest distance from the front property boundary to the first vertical element of the building

30 The DCP states at B6.3 in relation to streetscape and front setbacks: Streetscape describes the collective appearance of the street (including trees, footpaths and roadway) and the frontage of all buildings facing the street (including gardens and fences). The streetscape gives a neighbourhood its character. It facilitates interaction between residents and the street and adds visual interest. Open verandas, porches and decks should be provided within the front setback area.

31 In relation to driveway crossings within the public road reserve the DCP states: B6.C22 Driveway crossings within the public road reserve must be no more than 4m in width. Council may approve wider crossings only where safe vehicle manoeuvring could not be otherwise achieved.

Figure B6.6 Front setback to fit existing street pattern 32 The Council officer's report does not refer specifically to the front setback. The issue was also not specifically raised in the APOC but was nevertheless referred to in Mr Hooper's submissions. 33 Mr Hooper submits that the DCP control in relation to front setback has not been complied with. In particular the front setback does not have the required relationship with neighbouring properties as required by the diagram in B6.C22. 34 The Second Respondent submitted that the DCP is not binding but must be taken into account as required by Zhang. The front setback to the balcony edge of the proposed dwelling is 4.5m. As the neighbouring buildings on either side are 3.5m and 5m respectively the DCP has been complied with in any event. There is consequently no reason for considering front setback as an issue relevant to the approval of the Second Respondent's DA. As held in Timbarra Protection Coalition Inc v Ross Mining NL [1999] NSWCA 8; (1999) 46 NSWLR 55 at [80], and applied by me in Forsyth v Wilesmith [2008] NSWLEC 259 at [16]-[17], it is for the Council to decide what issues are relevant in the assessment of an application, as provided by the terms of s 79C of the Environmental Planning and Assessment Act 1979. That there is no reference to front setback is of no importance in the context of this application. The Council adopted these submissions. 35 I consider the Second Respondent's submissions including reasons are correct. Conclusion on issue 10 36 The Applicant is unsuccessful in his challenge in relation to issue 10 based on perceived errors or inadequacies in the Council officer's report and also the Council's consideration of the proposed DA. Issue 6 37 As a result of my finding above in relation to the issue of maximum height of the proposed building, there is no basis to argue that a SEPP 1 application to vary that development standard was necessary before a grant of development consent could be made by the Council. Issue 6 in the APOC has not therefore been established by the Applicant. Issue 7.6/7.7 - Failure to have regard to document 38 The APOC issue 7.6/7.7 refers to a wide range of documents which might not have been before the Council when it made its decision to approve the development. Mr Hooper clarified that the document the subject of this part of his argument was his second written objection (undated, but sworn in his affidavit to have been lodged with the Council on 9 December 2009). The decision to approve the Second Respondent's development was made on 15 December 2009. The document is located on the Council file but there is no specific mention of it in any of the Council reports. He therefore considered it is possible that no regard was had to that document by the councillors at the time they made their decision to approve the Second Respondent's development application. 39 The Respondents argued that the document was clearly on the Council file (exhibit 1 p 120, two Council date-stamps indicate respectively receipt on 9 December 2009 and acknowledgement sent to the objector on 10 December 2009), and that it was not a mandatory relevant consideration in any event and largely repeated previous submissions already made by Mr Hooper. Further Mr Hooper addressed the Council meeting on 15 December 2009 about the proposed dwelling, including making a powerpoint presentation, and had adequate opportunity to raise all issues of concern with the Council. There is a presumption that the councillors would have had an opportunity to read all material in their possession. Mr Hooper bears the onus of demonstrating that the Council failed to take the document into account: Schroders Australia Property Management Ltd v Shoalhaven City Council [2001] NSWCA 74 see Ipp AJA (Spigelman CJ and Sheller JA agreeing) at [72]. Mr Hooper has failed to discharge that onus. 40 The Respondents' arguments are correct for the reasons given and I adopt these. This ground of appeal is unsuccessful. 41 A submission which underlay many of the issues raised by the Applicant was that there was a perceived failure of the proposed building to comply with the objectives of the residential 2(a) zone. It is necessary to differentiate the nature of judicial review proceedings from merit review proceedings. The decision whether a particular development ought be approved on its merits remains a matter for the Council. Provided that the Council considered adequately all relevant matters, as I have held that it did in relation to the issues raised by the Applicant, any merit determination cannot be reviewed in judicial review proceedings such as these. The Applicant was able to make several written and in person objections to the Council in the course of assessment of the proposal by Council officers. He was also able to address in person the Council at its meeting on 15 December 2009. The many issues raised by him were identified to the Council at the meeting or in the course of assessment by its officers. There is no basis for finding the decision of the Council to grant development consent was invalid in these circumstances. Costs 42 Under r 42.1 of the Uniform Civil Procedure Rules 2005 the general rule in Class 4 proceedings is that costs follow the event. No submissions have yet been made by the parties in relation to costs. Order 43 The Court makes the following orders: 1. Summons dismissed. 2. Costs reserved.

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