Hooper v Port Stephens Council & Anor

Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Port Stephens Development Control Plan 2007 Port Stephens Local Environmental Plan 2000

Caroona Coal Action Group Inc v Coal Mines Australia Pty Limited and Anor (No 3) [2010] NSWLEC 59; (2010) 173 LGERA 280 Hooper v Port Stephens Council & Anor (No 2) [2010] NSWLEC 112 Hooper v Port Stephens Council & Anor (No 3) [2010] NSWLEC 178; (2010) 176 LGERA 97 CASES CITED: Oshlack v Richmond River Council (1998) 193 CLR 72 Port Stephens Council v Chan Industrial Pty Limited [2005] NSWCA 232; (2005) 141 LGERA 226 Zhang v Canterbury City Council [1999] NSWLEC 209; (1999) 105 LGERA 18 Zhang v Canterbury City Council [2001] NSWCA 167; (2001) 51 NSWLR 589

Stephen James Hooper PARTIES: Port Stephens Council Trevlyn Peter Hallett

A: In person COUNSEL: 1R: M C Fraser 2R: D W Larkin

A: In person SOLICITORS: 1R: Harris Wheeler Lawyers, Newcastle 2R: Equilaw Solicitors, Muswellbrook

LOWER COURT JURISDICTION: Land & Environment Court

LOWER COURT FILE NUMBER(S): LEC 2010/40010

LOWER COURT MEDIUM NEUTRAL CITATION: Hooper v Port Stephens Council (No 2) [2010] NSWLEC 112

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL 2010/0259074

TOBIAS JA HANDLEY AJA SACKVILLE AJA

Wednesday 15 December 2010 STEPHEN JAMES HOOPER v PORT STEPHENS COUNCIL & ANOR Judgment 1 TOBIAS JA: On 15 December 2009 the respondent Council granted development consent to the second respondent to erect a dwelling house at premises 25 Gloucester Street, Port Stephens (the consent). The appellant, Mr Hooper, commenced Class 4 proceedings in the Land and Environment Court challenging the validity of the consent. Before the primary judge, Pain J, he raised a large number of grounds of which only two are initially relevant. Those grounds concern the height of the building and the fact that it is, at least in part, a 3 storey building. 2 The land, the subject of the consent, is zoned Residential 2(a) under the Port Stephens Local Environmental Plan 2000 (the LEP). In that zoning, the height of any building is limited to 9 metres. The LEP contains a definition in its dictionary of the term "height" in the following terms: "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."

3 Before the primary judge and this Court, the appellant first sought to demonstrate that the height of the building was 9.422 metres and was therefore, prohibited. He sought to achieve this objective by reference to the northern elevation of the amended plans the subject of the development application by establishing that the highest point of the building was at RL38.82 and the lowest level of the building was at RL29.398. He then deducted the lower level from the higher level and maintained that that resulted in the building having a height of 9.422 metres. 4 The second ground relevant to this appeal concerns the Council's Development Control Plan 2007 (the DCP). It contains a section (B6.7) headed "Building Height". Under the heading "Principles", it states that any development should achieve a scale and height in keeping with the existing and desired future character of the street. Under the heading "Development Controls" the following is stated: "Development must comply with the standards for maximum permissible height as stated in Port Stephens LEP 2000. Development in the Residential 2(a) zone must not exceed two 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." (Original emphasis)

5 Before her Honour, and reiterated on the appeal, the appellant submitted that the requirement of the DCP that development in the subject zone must not exceed two storeys was a mandatory requirement, breach of which would result in the prohibition of any development that exceeded the 2 storey limit. As the subject building was, at the very least, part 3 storeys, it therefore breached a mandatory provision of the DCP as a consequence whereof the consent was invalid. 6 The primary Judge rejected each of these arguments: Hooper v Port Stephens Council & Anor (No 2) [2010] NSWLEC 112. At [16] of her reasons she set out the submissions of the second respondent and the Council with respect to the proper interpretation of the definition of "height" in the LEP, it being their submission that the definition required the relevant measurement to be taken vertically in the same plane to the natural ground level or the finished ground level of the completed building, whichever was the lower at a particular point on the external facade of the building. It was asserted that if the height was measured vertically in the same plane from the highest point of the roof at RL38.82 metres to the natural ground level, it being lower than the finished ground level of the building at that point, the height complied with the LEP. 7 At [17], her Honour agreed with the respondents' submissions. She said this: "The definition of 'height' in the LEP requires the measurement of height along a vertical plane at any point...The building height is to be measured vertically at RL38.82 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 9 metres specified in the LEP." 8 At [18], her Honour noted that the appellant's approach did not accord with her construction of the definition. Rather, he compared two heights on different vertical planes, resulting in an incorrect maximum height being calculated contrary to the terms of the definition. 9 With respect to the number of storeys limitation contained in the DCP, at [23] her Honour referred to the decision of Talbot J in Zhang v Canterbury City Council [1999] NSWLEC 209; (1999) 105 LGERA 18 at [28]. She then stated that the Council was not bound to apply the terms of the LEP strictly. She continued: "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 [appellant's] submissions that the appearance and the 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." 10 Talbot J's decision was generally confirmed by this Court in Zhang v Canterbury City Council [2001] NSWCA 167; (2001) 51 NSWLR 589. Relevantly, for present purposes, Spigelman CJ, with whom Meagher and Beazley JJA agreed, confirmed at [74], that a development control plan was not an "environmental planning instrument" within the definition of that term in section 4 of the Environmental Planning & Assessment Act 1979 (the Act), with the consequence that the requirement in s 80(2) of the Act that a consent authority "must refuse" an application that would "result in a contravention of" such an instrument does not apply to a development control plan. The contention of the appellant before this court that the provisions of the DCP in the present case are mandatory is, therefore, contrary to the decision of this Court in Zhang and should be rejected. 11 The onus lay upon the appellant to establish that the subject building exceeded the 9 metre height limit maximum permitted by the LEP. As I have indicated, he sought to do this in a manner that did not involve the determination of the height of the building measured vertically from its maximum height to the natural ground level or the finished ground level of the completed building immediately below that point: that is, in the same plane. Rather, what the appellant did was to project the highest point of the building at RL38.82 to a point where it was vertically above the lowest point of the building at RL39.398 and, by subtracting the higher figure from the lower figure, determine that the height of the building was 9.422 metres. 12 In so doing the appellant misinterpreted the definition of "height" in the LEP. The construction of that definition adopted by her Honour, namely, that the building height was to be measured vertically from the highest point to the natural ground level or the finished ground level whichever was the lower, in the same vertical plane, was clearly correct. It is, to a degree, supported by the decision of this Court in Port Stephens Council v Chan Industrial Pty Limited [2005] NSWCA 232; (2005) 141 LGERA 226 where, at [35] I, with the agreement of Giles JA and Brownie AJA, stated the following: "… The combined purpose of encouraging as much of the building that does not comprise residential uses to be below ground level and the objective of minimising the impacts of that part of the building above ground level, in my view requires the 'finished ground level of the completed building' to be construed as a reference to the finished ground level which abuts the completed building at any point along its external walls." 13 Although the precise point in Chan was different to that which is the subject of the present appeal, in my view what I said in it supports the construction of the definition that her Honour adopted. It therefore follows that the measurement conducted by the appellant and which resulted in a height of 9.422 metres, was not one that was in accord with the proper construction or the definition of "height" in the dictionary to the LEP. For those reasons, in my view the appellant's contention that her Honour erred in her construction of the definition should be rejected. 14 I have already indicated that, in my view, the appellant was incorrect in asserting before this Court that the provision of the DCP in relation to the maximum number of storeys was a mandatory requirement. In my view, it was not. Although not encompassed in his grounds of appeal, the appellant nevertheless submitted that the Council had no power to approve a development which was inconsistent with any provision of the LEP or the DCP. It was submitted that there was such an inconsistency and that that inconsistency had been recognised by the Council officer who assessed the application and who, although accepting that the height of the building in accordance with the LEP was only 9 metres, nevertheless considered that as the requirement of the DCP as to the number of storeys had not been complied with, the application should, by inference, be refused. 15 In referring to clause 16 of the LEP, the assessing officer wrote: "The proposed dwelling is considered inconsistent with the zone description and the zone objectives in relation to Residential 2(a) zoned land which is characterised by one and two storey dwellings." In this respect, the zone description and the objectives of the zone, as set out in the LEP, are relevantly in the following terms: "(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.

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."

16 The officer then continued: "Consent to a three (3) storey dwelling in the form proposed is considered inconsistent with the provisions of the Port Stephens Local Environmental Plan 2000." 17 As to clause 19 of the LEP, which was the provision of the LEP that mandated a maximum height of 9 metres, the author of the assessment report wrote: "The proposed development is considered to be consistent with the development standard of height specified in clause 19 of the Port Stephens LEP 2000."

18 When dealing with the DCP which, he stated, set out performance-based design criteria, and under the heading "Streetscape, Building Height, Bulk and Scale", the author wrote that the proposed 3 storey dwelling was not considered to have a serious impact on the surrounding development and associated land uses that comprise residential occupancies. Further, under the heading "Views", he wrote that it was not considered that the development would unreasonably impact on existing views. However, under the heading, "Likely Impact of the Development", the assessing officer wrote: "The proposed development is inconsistent with the requirement of Port Stephens Local Environment Plan 2000 and Development Control Plan 2007. The bulk and scale of a 3-storey dwelling in the form proposed is assessed as inconsistent with the intent and objectives of the controls." 19 Finally, under the heading "Public Interest", the author of the assessment report considered that the proposal was contrary to the public interest in that it failed to satisfy relevant planning considerations. Although he wrote that an approval would be inconsistent with public expectations of orderly residential development of a scale and design characterised predominantly by one and two storey dwellings in the relevant zone, nevertheless he also opined that the proposed building was in keeping with the design characteristics, suitability and appearance within the existing streetscape. 20 However, that assessment was not the end of the Council officers reporting to the Council in relation to the development. Mr Ken Solman, the Acting Manager, Development & Building, prepared a short report to which the assessment report to which I have referred was attached, in which he recommended to the Council that the application be approved by the granting of consent, subject to conditions. In that document he set out the description of the zone and its objective taken from the LEP, but concluded that the proposal was considered compatible with the immediate locality as the adjoining duplex was three storeys and there were numerous examples of three storey structures in the street. 21 It would seem that the final report to the Council was that of Mr Anthony Randall, whose particular status is not entirely clear but who appears to have been in a position of superiority to Mr Solman. His recommendation to the Council was to endorse the approval of the subject development application. He also set out the relevant provisions of the DCP upon which the appellant relies, as well as the description and objectives of the relevant zone in the LEP, upon which reliance was also placed by the appellant. His conclusion was as follows: "The proposal is considered compatible with the immediate locality as the adjoining duplex is three storeys and there are numerous examples of three storey structures in the street."

22 From what I have set out above from the various planning reports, it seems to me that the Council officers not only identified but also gave careful consideration to the relevant provisions of the LEP and the DCP upon which the appellant relies. The Council accepted the recommendation of two of its senior officers that consent be granted and this was so, notwithstanding that in the assessment officer's report he had, in effect, recommended refusal of the application due to the inconsistencies between the proposal and the relevant provisions of the LEP and the DCP to which reference has been made. 23 As I have indicated the appellant accepted that the proposition that he was advancing to the Court was that the Council had no power to approve a development that was inconsistent with the provisions of the LEP or the DCP. That proposition would be correct if the inconsistency referred to involved a contravention of a relevant mandatory provision of the LEP. But the only such provision in the present case was the maximum height limit of 9 metres that, in my view, was not contravened or at least there was no evidence that it was when the definition of "height" was properly construed. 24 Insofar as there were inconsistencies between the proposed development and those provisions of the LEP that were not mandatory but only descriptive, then the proposition advanced by the appellant has no legal validity. Equally, any inconsistency or, for that matter, contravention of a provision of the DCP does not have the effect of denying the Council the power to ignore that inconsistency or contravention for the reasons that I have indicated, namely, that the Council is not bound by the provisions of the DCP provided otherwise that in accordance with section 79C of the Act it has properly considered those provisions of the DCP which are relevant to the application. Accordingly, in my view, the foregoing contention of the appellant should be rejected. 25 Two other matters were raised by the appellant during the course of argument. The first related to the rejection by her Honour on the second day of the hearing on 25 June last, of a letter from a registered surveyor, Mr Adam McCaull of the LeMottee Group, dated 24 June 2010, in which he had opined that the height of the building was 9.422 metres. In coming to that conclusion, Mr McCaull adopted the approach to the determination of height which the appellant himself had advanced to her Honour and which I have rejected as being a misinterpretation of the definition of "height" in the dictionary to the LEP. 26 The grounds upon which her Honour rejected that letter were three-fold: First, that it was simply too late; second, that the author was not available for cross-examination; and third, that the author had not purported to comply with the Expert Witness Code of Conduct and acknowledge that he had done so. 27 On the appellant's own chronology, it is apparent that he was aware of the issue relating to the interpretation of the definition of "height" in the LEP since at least 20 April 2010, which was just over a month before the commencement of the hearing on 24 June. Within that period, on 10 May 2010, he had received a letter from the Council solicitors indicating the basis upon which the Council asserted that height should be measured and which accorded ultimately with her Honour's decision. He therefore had had plenty of time to obtain expert evidence, if expert evidence was required, to determine how the height of the proposed dwelling was to be measured. Of course, any such expert evidence could not change the proper interpretation of the definition. But, accepting the Council's construction of that definition, which was also accepted by her Honour and now confirmed by this Court, it may be that it would have been open to the appellant to produce expert evidence that sought to measure the height of the building in accordance with the Council's interpretation of the definition of "height" to determine whether or not it exceeded the 9 metre limit. That was not done and the letter that the appellant sought to have admitted by her Honour and which she rejected did not purport to approach the issue of measurement in that manner. In my view, it has not been demonstrated that her Honour's discretion in rejecting the tender has miscarried. 28 The final matter relates to the order for costs that her Honour made on 24 September 2010. When she delivered her original judgment on 21 July 2010, she reserved costs. The matter of costs was then argued on 15 September and her Honour delivered a lengthy and detailed judgment on the issue of costs on 24 September: Hooper v Port Stephens Council & Anor (No 3) [2010] NSWLEC 178; (2010) 176 LGERA 97. In that judgment, her Honour referred to the relevant authorities and, in particular, to the analysis of those authorities by Preston CJ in Caroona Coal Action Group Inc v Coal Mines Australia Pty Limited & Anor (No 3) [2010] NSWLEC 59; (2010) 173 LGERA 280. 29 The appellant submitted that her Honour had erred in failing to apply what Kirby J had said in Oshlack v Richmond River Council (1998) 193 CLR 72. However, her Honour did refer to that decision, as had Preston CJ in Caroona Coal. What is made clear by both those authorities is that for an applicant to simply assert that he or she is acting in the public interest is insufficient to justify a special order for costs in relation to a Class 4 proceeding instituted by such a person which has been unsuccessful. I do not see any error in the approach of her Honour in her costs judgment and I would therefore reject the appellant's assertion that she had so erred. 30 For the foregoing reasons, in my view each of the grounds advanced by the appellant in support of the proposition that her Honour had erred in rejecting his application to invalidate the consent should themselves be rejected. I would therefore propose that the appeal be dismissed with costs. 31 HANDLEY AJA: I agree. 32 SACKVILLE AJA: I agree. I would add only one point. As the presiding Judge has indicated, one argument advanced by the appellant was that the Council lacked power to depart from the terms of the Port Stephens Development Control Plan 2007, insofar as it imposed a limit of two storeys on the development. This submission overlooked the terms of section 79C of the Environmental Planning & Assessment Act 1979. 33 It was not argued in this court that, if the Council did have power to depart from the terms of the Development Control Plan, it had failed to treat the terms of the Development Control Plan as a focal point or fundamental element in its deliberations, as required by the decision of this court in Zhang v Canterbury City Council (2001) NSWCA 167 at [77], per Spigelman CJ, with whom Meagher and Beazley JJ agreed. 34 I do not suggest that any such submission, had it been made, would have had any merit, I merely note that it is not necessary to address the point. 35 TOBIAS JA: The order of the court is that the appeal is dismissed, with costs. 36 The appeal filed against her Honour's decision of 24 September is also dismissed with no order as to costs. **********

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