Hoskins v Waverley Council

DATE OF JUDGMENT DELIVERY: 10/20/1999

APPLICANT: W R Davison SC AND J J Webster (Barrister)

SOLICITORS: Paul Brown & Co LEGAL REPRESENTATIVES: RESPONDENT: S B Austin QC AND G B Newport (Barrister)

SOLICITORS: M E McMahon & Associates

Conclusion 20 _______________IN THE LAND AND Matter No: 10951/98 ENVIRONMENT COURT Coram: Lloyd J OF NEW SOUTH WALES Decision date: 20/10/99

1. This is an appeal by the respondent, Waverley Council ("the Council") under s 56A of the Land & Environment Court Act 1979 against a decision of a Commissioner on an appeal against the refusal by the Council to grant development consent for a residential flat building. The Commissioner upheld the appeal under s 97 of the Environmental Planning & Assessment Act 1979 ("the EP&A Act") and granted consent to the development application subject to thirty four conditions. An appeal against the Commissioner's decision may only be made on a question of law.

2. The Council initially raised five grounds of appeal. On the hearing of the appeal, however, the Council relied only upon the following two grounds: (1) The Commissioner erred in law in failing to give any weight to Draft Waverley Local Environmental Plan No 14 ("DWLEP 14") as provided for by s 79C(1)(a)(ii) of the EP&A Act.

(2) The Commissioner erred in law in failing to apply Development Control Plan No 24 ("DCP 24") as provided for by s 79C(1)(a)(iii) of the EP&A Act. 3. The relevant local environmental plan which applied to the land at the time of the hearing before the Commissioner was Waverley Local Environmental Plan 1966 , under which it was within zone No 2(c1) Residential - Medium & High Density. Development for the purpose of residential flat buildings was permissible with development consent. The Commissioner noted in his decision that DWLEP 14 was in the course of preparation and it aimed to rezone the subject land to Residential 2(a), in which zone residential flat buildings are prohibited. The Commissioner also noted in his decision that DCP 24 applied to the subject land.

After noting that the proposed development was permissible in the 2(c1) zone, the Commissioner stated (at p 11 of the judgment): Many of the witnesses of the Council sought to apply the standards of DWLEP 14 and the requirements of DCP 24. Against these standards and requirements the proposed development would fail the numerical requirements. The Court is required, in a matter such as this, to balance the matters for consideration under s 79C of the Environmental Planning & Assessment Act 1979. I consider the application is worthy of approval after having weighed the conflicting evidence and having regard for the submissions.

The Commissioner further stated (at p 12 of the judgment): I do not consider the DWLEP 14 to be certain or imminent and I have given it no weight in my consideration of the present application.

The Commissioner went on to state various reasons which led him to the view that DWLEP 14 was most likely to be delayed, such as being contrary to a direction by the Minister under s 117 of the EP&A Act.

Mr S B Austin QC, who (with Mr G B Newport) appears for the appellant Council, submits that the Commissioner fell into error by making the findings which I have described in paragraph 4 above. Mr Austin accepts the principle that it is undesirable in an appeal from a lay tribunal, where the appeal court is confined to a question of law, that it should examine too narrowly the words used in the decision, at least unless those words are central to the decision (see Brimbella v Mosman Municipal Council (1985) 79 LGERA 367 at 368). In Mr Austin's submission, the passage quoted above is central to the Commissioner's decision and it demonstrates that the Commissioner misunderstood the effect of DWLEP 14. Rather than the setting of numerical requirements, DWLEP 14 aimed to rezone the subject land to zone No 2(a), in which zone residential flat buildings are prohibited.

The statement of which Mr Austin is especially critical, as set out in paragraph 4 above, is: " Against these standards and requirements the proposed development would fail the numerical requirements ". In my opinion, to accept the submission would be to adopt a " fine-tooth comb " approach to the decision, an approach which was rejected by Stein J in Coles v Woollahra Municipal Council (1986) 59 LGRA 133 at 138. The Commissioner had earlier in his decision noted that DWLEP 14 aimed to rezone the land to zone No 2(a). In my view it seems that the statement criticised by Mr Austin is part of the Commissioner's summary of the evidence of the witnesses of the Council referred to in the preceding sentence and is not a statement of the effect of DWLEP 14. The Commissioner's reason for attributing no weight to DLEP 14 is described in the next paragraph of the decision, which commences with the statement I have quoted in paragraph 5 above and which then continues with a statement of the reasons which have led him to that view (noted in paragraph 6 above). None of those reasons contain a reference to a failure to meet numerical requirements. This confirms my opinion that the sentence criticised by Mr Austin is not a statement of the effect of DWLEP 14 but is a summary of the evidence of the witnesses of the Council referred to in the preceding sentence.

Mr Austin QC next criticised the Commissioner's decision to give DWLEP 14 no weight. The Commissioner set out the reasons arising from the evidence as to why he did not consider DWLEP 14 to be certain or imminent. He went further and expressed the opinion that the making of that instrument would be most likely to be delayed, again giving reasons arising from the evidence. It is clear that the Commissioner gave consideration to DWLEP 14. The amount of weight to be given to that draft instrument was, however, entirely a matter for the Commissioner.

In Ladhams v State Planning Authority (1982) 52 LGRA 32, Wells J held (at 35) that the misattribution of weight to a planning instrument is not a mistake of law. Similarly, in Coles v Woollahra Municipal Council , Stein J adopted what was said by Wells J in finding that if some misattribution of weight had occurred in that case, it was not such as to amount to an error of law. In Tabag v Minister for Immigration (1982) 45 ALR 705, 70 FLR 61, Keely J in the Full Court of the Federal Court said (at 715-717) that the weight to be given to a relevant consideration is a matter for the tribunal of fact and not for a court limited to an appeal on a question of law: if insufficient weight is given to an important relevant consideration that is not a question of law. In the same case, Jenkinson J said (at 727) that if a misattribution of weight is given to a relevant consideration, that does not necessarily involve an error of law: it is only an error of law if it affects the decision to an extent that it is one which on the facts found no reasonable mind could have come.

Similarly, in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, Mason J said (at 41): It follows that, in the absence of any statutory indication of the weight to be given to various considerations, it is generally for the decision-maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the statutory power .

Mason J went on to say, however, that the " manifestly unreasonable" ground may exist to enable a court to set aside a decision if it can be demonstrated that the weight given to a factor results in a decision which is so unreasonable that no person could have come to it.

In Randwick Municipal Council v Manousaki (1988) 66 LGRA 330, Clarke JA said (at 335): There was no statutory or other obligation upon the assessor to deal with each of the matters listed in section 90(1) of the Planning Act. He was invested with the power of determining which of the factors mentioned in that subsection were relevant to the appeal being heard by him and he was also entitled to accord to those which he found to be relevant such weight as he concluded was appropriate.

In BP Australia Ltd v Campbelltown City Council (1994) 83 LGERA 274, Mahoney JA said (at 279): But, within proper limits, it is for the authority to determine what weight should be given to each of the relevant considerations in the process of weighing them. If quite disproportionate weight is given to one consideration, discretion may miscarry and the decision may be set aside. But subject to such cases, it is open to the authority to decide what weight should be given to each of the considerations.

The reference by Mahoney JA to " quite disproportionate weight " in the above passage is, I think, a reference to manifest unreasonableness.

In the present case the Commissioner described the facts which led him to the view that he should not give DWLEP 14 any weight. It could not be said that the decision to give DWLEP 14 no weight was one which, on those facts, no reasonable mind could not have come. I am not satisfied, in his careful consideration of the place of DWLEP 14 amongst the various matters for consideration, that the Commissioner committed any error of law in attributing to it an absence of weight.

In his consideration of DCP 24, the Commissioner said (at page 12 of the judgment): The DCP 24 is so inconsistent with the LEP that I have given little weight to it. .... . In effect it is a de-facto rezoning from Residential 2(c1) to 2(b) without the consideration given to an environmental planning instrument under Part 3 of the Act. On that ground alone it would be unreasonable and unfair to apply it and could be seen as in conflict with private interests in land.

This passage follows an earlier passage (at p 3 of the judgment) in which the Commissioner describes the purpose and objectives of DCP 24 as stated in that instrument.

Mr Austin QC's submission, as I understand it, is that the Commissioner was of the opinion that DCP 24 amounted to a de facto rezoning of the subject land and it should not, for that reason, be applied. There is no doubt that the Commissioner considered DCP 24, as he was required to do. The question which is raised is again whether the Commissioner committed an error of law in deciding to give little weight to it. The Commissioner gave so little weight to it that he decided not to apply it at all.

The considerations which apply to the first ground of appeal apply equally to this ground. The reasons which have led me to dismiss the first ground of appeal also lead me to dismiss the second ground. Having fully considered the effect of DCP 24, the Commissioner was fully entitled to give it little or no weight. In doing so the Commissioner has not committed any error of law. It was reasonably open to the Commissioner to find that it would be unreasonable and unfair to apply DCP 24. The question of the weight to be accorded to it is a question of fact which cannot be disturbed unless the determination was manifestly unreasonable. There is nothing to suggest that the determination in this case was manifestly unreasonable.

The Council has not demonstrated that there is any error of law in the Commissioner's decision. I therefore make the following orders: 1. Appeal dismissed.

2. The respondent/appellant, Waverley Council, pay the applicant's costs of this appeal.

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