Initial Action Pty Ltd v Woollahra Municipal Council

The Council's argument that the Commissioner did not apply the wrong test

1. The Council contested that the Commissioner failed to form the required opinions of satisfaction under cl 4.6(4)(a). The Council submitted that a fair reading of the whole of the Commissioner's reasons for judgment, but in particular [59]-[64], [91], [92], [99], [102], [105], [107], [111]-[116], [118]-[122], [128], [130]-[136] and [140]-[144], shows that the Commissioner was not satisfied that the applicant's written request had adequately addressed the matters required to be demonstrated by clause 4.6(3) or that the proposed development will be in the public interest because it is consistent with the objectives of the height development standard in cl 4.3 or the objectives of the applicable R3 zone.
2. The Council submitted that the Commissioner had correctly identified the applicable provisions for determining the applicant's written request under cl 4.6 (including cl 4.6, the height development standard in cl 4.3(2), the objectives of the height development standard in cl 4.3(1) and the objectives of the R3 zone), made factual findings that were available on the evidence, and revealed an adequate process of reasoning to reach her findings that she was not satisfied as to the matters in cl 4.6(4).
3. The Council contested that the Commissioner had applied the wrong test in reaching her findings that she was not satisfied as to the matters in cl 4.6(4). As I did with the applicant's submissions, I will group the Council's responses by the opinions of satisfaction that the Commissioner was required to address under cl 4.6(4)(a).
4. The first opinion of satisfaction under cl 4.6(4)(a)(i) was whether the applicant's written request had adequately addressed the two matters required to be demonstrated by cl 4.6(3). The Council submitted that the applicant bore the onus of establishing that the applicant's written request adequately addressed the matters required to be demonstrated by cl 4.6(3). The Council submitted that it is the applicant's written request that must demonstrate the matters in cl 4.6(3); the applicant could not introduce evidence at the hearing outside of the written request to demonstrate the matters in cl 4.6(3). The Commissioner's focus, in determining whether she was satisfied as to the matter in cl 4.6(4)(a)(i), therefore needed to be on the applicant's written request and not on other evidence adduced at the hearing.
5. The Council submitted that the Commissioner's reasons for judgment reveal that she did correctly focus on the applicant's written request. The Commissioner summarised the applicant's written request seeking to justify the variation to the height development standard (in [59]-[64]). In her discussion of cl 4.6, the Commissioner identified the matters in the written request with which she was not satisfied. The Commissioner found that the applicant's written request provided an insufficient basis to support the development in terms of the height breach proposed (at [111]). The Commissioner found that the breach was substantial (at [112]). There were no site factors justifying the breach (at [113]). The unacceptable impacts arose from the development not complying with the height development standard (at [137]).
6. The first matter in cl 4.6(3)(a) that the written request needed to address was whether compliance with the height development standard was unreasonable or unnecessary in the circumstances of the case. The Council noted that the Commissioner had found in [143] of the judgment that compliance with the controls was neither unreasonable nor unnecessary in the circumstances. That finding was based not only on the preceding paragraph [142] but on the discussion in the paragraphs referenced by the Council above. The Council submitted that the Commissioner dealt with the arguments raised by the applicant in its written request as to why compliance with the development standard was unreasonable or unnecessary. These concerned the lift overrun (at [114]), no demonstration of better outcome (at [131]), the context and desired future character (at [132]) and the height exceedance not being sufficiently addressed (at [133]).
7. The second matter in cl 4.6(3)(b) that the written request needed to address was whether there are sufficient environmental planning grounds to justify contravening the height development standard. The Council noted that the Commissioner referred to this matter in [141] of the judgment, finding that she did not consider that it had been established that there were sufficient environmental planning grounds to warrant the height exceedance sought. The Council submitted that this finding was based not only on the reasons given in [141] but also on the discussion in the paragraphs referenced by the Council.
8. The Council submitted that, read as a whole, the Commissioner's reasons for making the findings that she was not satisfied that the applicant's written request adequately addressed the two matters in cl 4.6(3)(a) and (b) were adequate and no error of law is disclosed.
9. The second opinion of satisfaction under cl 4.6(4)(a)(ii) was whether the proposed development will be in the public interest because it is consistent with the objectives of the height development standard and the objectives of the applicable R3 zone. The Council submitted that the Commissioner adequately addressed this matter on a whole reading of the reasons for judgment, but in particular at [19], [20], [24], [26]-[30], [38], [39], [44], [46], [47], [59]-[61], [74], [75], [79], [80], [92], [112], [113], [120], [121], [122], [132], [138], [140] and [144]. The Council submitted that this discussion and these findings reveal no error of law.
10. The Council disputed the applicant's contention that the Commissioner misconstrued the height development standard in cl 4.3 as a standard limiting the number of storeys. The Council submitted that the Commissioner's discussion in [113] of the judgment regarding storeys explained the factual reason for the development contravening the height development standard. The height of the proposed development (14.25 metres) was necessary in order to have a penthouse on the fourth storey. If the development had complied with the maximum height of 10.5 metres in the height development standard, the penthouse (the fourth storey) could not fit. The Commissioner was making a factual observation that the maximum height fixed by the development standard for the site would not accommodate four storeys on this site. The Commissioner was not confused that there was a storey limit applicable to this site in Double Bay.
11. The Council contested that the Commissioner applied the wrong test of satisfaction under cl 4.6(4)(a)(ii) by applying a test of "comply with" and not "consistent with" the objectives of the height development standard and the objectives of the zone (see at [138] of the judgment). The Council submitted that the Commissioner's language was accordant with the language of cl 4.6(4)(a)(ii): "comply with" and "consistent with" have the same meaning. The Macquarie Dictionary 4th edition defines the word "consistent" to have a meaning of "agreeing or accordant" and "compliant" to have a meaning of "in keeping or accordance with". The Council submitted, therefore, that the Commissioner did not apply the wrong test by using "comply with" rather than "consistent with".
12. The Council submitted that the Commissioner did not ask the wrong question when considering the consistency of the development with the objectives of the height development standard. The Commissioner's finding in [138] that the development is of the height and scale that does not reflect the desired future character of the neighbourhood shows the Commissioner was considering the objective of the height development standard in cl 4.3(1)(a) "to establish building heights that are consistent with the desired future character of the neighbourhood". The Commissioner's findings in [120] and [121] of the judgment, that the development does not provide an appropriate transition from the R3 zone to the adjoining R2 zone, shows the Commissioner was considering the objective of the height development standard in cl 4.3(1)(b) "to establish a transition in scale between zones to protect local amenity."
13. The Council submitted that the applicant's challenge to the Commissioner's consideration of whether the development provides an appropriate transition between the zones (in [120] and [121] of the judgment) raises only an allegation of error of fact, not law. That error is irrelevant in an appeal under s 56A of the Court Act.
14. The Council submitted that the Commissioner did not ask the wrong question when she considered whether the non-compliant development would achieve better environmental planning outcomes than a compliant development (for example in [141] of the judgment). The Council noted that one of the objectives of cl 4.6 is "to achieve better outcomes for and from development by allowing flexibility in particular circumstances" (cl 4.6(1)(b)).
15. The Council further submitted that, even if the Commissioner might have erred on a question of law in some respect, such an error would not vitiate the Commissioner's decision. The applicant had the onus of satisfying the Commissioner of each of the matters in cl 4.6(4) (and by reference in cl 4.6(3)). If the Commissioner was not satisfied as to any of the matters, the Commissioner was precluded by cl 4.6(4) from granting development consent to the development which contravened the height development standard. Hence, the Council submitted, even if the Commissioner did err on a question of law in her findings as to cl 4.6(4)(a)(ii), for example, this would not vitiate the Commissioner's decision as the Commissioner was also not satisfied under cl 4.6(4)(a)(i) that the applicant's written request adequately addressed the matters required to be demonstrated by cl 4.6(3).

The Commissioner did apply the wrong test

1. I find that the Commissioner did ask the wrong question and apply the wrong test in a number of ways in concluding that she was not satisfied of the matters in cl 4.6(4). This misdirection about cl 4.6 affected the findings the Commissioner made and vitiated her decision and orders. The errors on questions of law that I find that the Commissioner made include some but not all of the errors identified by the applicant. I will summarise the errors that I find the Commissioner made below. The reasons I find that these are errors on question of law are the reasons advanced by the applicant that I summarise below.
2. First, I find that the Commissioner misdirected herself in considering under cl 4.6(4)(a)(i) whether she was satisfied that the applicant's written request had adequately addressed the two matters required to be demonstrated by cl 4.6(3).
3. The first matter was in cl 4.6(3)(a). I find that the Commissioner applied the wrong test in two ways: 1. In directly determining (in [143]) the matter under cl 4.6(3)(a) of whether she considered that compliance with the height development standard was unreasonable or unnecessary, rather than determining whether the applicant's written request had adequately addressed this matter to demonstrate that compliance with a development standard is unreasonable or unnecessary in the circumstances of the case; and 2. in requiring (in [142]) that the development that contravened the height development standard have a neutral or beneficial effect relative to a development that complies with the height development standard (no view loss or less view loss).
4. The first way is an error as it is contrary to the plain words of cl 4.6(4)(a). The question the Commissioner needed to address under cl 4.6(4)(a)(i) was whether she was satisfied that the applicant's written request had adequately addressed the matter in cl 4.6(3)(a) of demonstrating that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case: Randwick City Council v Micaul Holdings Pty Ltd at [39]. This is a different question to determining whether the Commissioner herself considered that compliance with the development standard was unreasonable or unnecessary.
5. The second way is an error because it finds no basis in cl 4.6. Clause 4.6 does not directly or indirectly establish a test that the non-compliant development should have a neutral or beneficial effect relative to a compliant development. This test is also inconsistent with objective (d) of the height development standard in cl 4.3(1) of minimising the impacts of new development on adjoining or nearby properties from disruption of views or visual intrusion. Compliance with the height development standard might be unreasonable or unnecessary if the non-compliant development achieves this objective of minimising view loss or visual intrusion. It is not necessary, contrary to what the Commissioner held, that the non-compliant development have no view loss or less view loss than a compliant development.
6. The second matter was in cl 4.6(3)(b). I find that the Commissioner applied the wrong test in considering this matter by requiring that the development, which contravened the height development standard, result in a "better environmental planning outcome for the site" relative to a development that complies with the height development standard (in [141] and [142] of the judgment). Clause 4.6 does not directly or indirectly establish this test. The requirement in cl 4.6(3)(b) is that there are sufficient environmental planning grounds to justify contravening the development standard, not that the development that contravenes the development standard have a better environmental planning outcome than a development that complies with the development standard.
7. The objective in cl 4.6(1)(b) does not assist. That is an objective of the clause itself: the clause achieves "better outcomes for and from development by allowing flexibility in particular circumstances". The flexibility referred to is "the appropriate degree of flexibility in applying certain development standards to particular developments" stated in the objective in cl 4.6(1)(a). The "better outcomes" are both "for" the development and "from" the development. These outcomes are not limited to "environmental planning outcomes for the site", as the Commissioner held.
8. In any event, cl 4.6 does not give substantive effect to the objectives of the clause in cl 4.6(1)(a) or (b). There is no provision that requires compliance with the objectives of the clause. In particular, neither cl 4.6(3) nor (4) expressly or impliedly requires that development that contravenes a development standard "achieve better outcomes for and from development". If objective (b) was the source of the Commissioner's test that non-compliant development should achieve a better environmental planning outcome for the site relative to a compliant development, the Commissioner was mistaken. Clause 4.6 does not impose that test.
9. Secondly, I find that the Commissioner misdirected herself in considering under cl 4.6(4)(a)(ii) whether she was satisfied that the proposed development would be in the public interest because it is consistent with the objectives of the height development standard. The applicant contended that the Commissioner made errors on questions of law in relation to cl 4.6(4)(a)(ii) in four categories, which I have summarised earlier. I find that the Commissioner made errors on questions of law in the second category, but not in the first, third or fourth categories.
10. As the first category of errors, I find that the Commissioner did not misdirect herself about or misconstrue the height development standard in cl 4.3. The Commissioner did not misconstrue the height development standard as fixing a limit on the number of storeys. As the Council submitted, the Commissioner in [113] was simply making a factual observation that the maximum height of 10.5 metres fixed by the height development standard could not accommodate a building of four storeys on this site. The proposed development's height of 14.25 metres, an exceedance of 3.75 metres, enables an additional storey to be constructed on the site. By making this factual observation the Commissioner did not confuse the height development standard with a storey standard.
11. The Commissioner did not misdirect herself as to the height development standard in [139]. The Commissioner's observation in [139] needs to be read in the context of the argument of the applicant that the Commissioner was addressing. The applicant had argued in its written request that the development would achieve the desired future character objectives of both the height development standard and the R3 zone by introducing a well-designed, contemporary building into the streetscape (see the Commissioner's summary in [61]). The Commissioner addressed this argument in [139] and [140]. The Commissioner was not convinced with the argument that introducing a contemporary development of the height proposed by the applicant would be consistent with the desired future character objectives of the height development standard or the zone. The first reason in [139] was a rhetorical one: if the Council had intended contemporary developments to be of the height proposed then it would have fixed a greater maximum height to accommodate such higher contemporary development. Her second reason in [140] was that the desired future character objectives could be achieved by introducing well designed, contemporary buildings that complied with the height development standard. These reasons are factual. They do not reveal that the Commissioner misdirected herself concerning the height development standard or the consistency of the development with the height development standard.
12. As to the second category of errors, I find that the Commissioner did misdirect herself concerning the consistency of the development with the objectives of the height development standard in five ways: 1. in considering (in [132] and [133]) the consistency of the development with objective (a) of the height development standard, the Commissioner used the wrong referent (the heights of the adjoining, interwar, residential flat buildings and other buildings in the vicinity rather than the desired future character of the neighbourhood) and the wrong test for comparison (whether the height of the development exceeds the height of the adjoining residential flat buildings or other buildings in the vicinity rather than whether the height of the development is consistent with the desired future character of the neighbourhood); 2. in considering (in [120] and [121]) the consistency with objective (b) of the height development standard, the Commissioner made a simple factual comparison of the height of the development (exceeding 14m), the maximum height in the R3 zone (10.5m) and the maximum height in the adjoining R2 zone (9.5m), without addressing the question, which cl 4.6(4)(a)(ii) required to be addressed, of whether the height of the development was consistent with objective (b) of establishing a transition in scale to protect local amenity; 3. in holding incorrectly in [136] that the lack of adverse amenity impacts on adjoining properties is not a sufficient ground justifying the development contravening the development standard, when one way of demonstrating consistency with the objectives of a development standard is to show a lack of adverse amenity impacts (see Randwick City Council v Micaul Holdings Pty Ltd at [34]); 4. in asking the wrong question (in [137]) by discerning whether the non-compliant development generated a benefit to the neighbouring properties relative to a lower, height compliant development, which was inconsistent with cl 4.6(4)(a)(ii) and the objectives of the height development standard; and 5. in considering (also in [137]) the consistency of the development with objective (d) of the height development standard, the Commissioner held that it was not sufficient that the development minimised the impacts on adjoining or nearby properties because impacts still arise, which was inconsistent with objective (d) of the height development standard that development should minimise impacts on adjoining or nearby properties.
13. Each of these errors arise by asking the wrong question and applying the wrong test in considering the matter in cl 4.6(4)(a)(ii) concerning the consistency of the development with the objectives of the height development standard in cl 4.3. The Commissioner's approach, manifested in the paragraphs of the judgment referred to, is inconsistent with the language of cl 4.6(4)(a)(ii) and objectives (a), (b) and (d) of the height development standard in cl 4.3(1), for the reasons given by the applicant summarised above.
14. As to the third category of errors, I do not find that the Commissioner misdirected herself concerning the consistency of the development with the objectives of the zone. In [138], the Commissioner added to her factual finding, that the development is of a height and scale that does not reflect the desired future character of the neighbourhood, the statement "as is required by the LEP zone objectives". The applicant submitted that this statement is incorrect as WLEP does not "require" a development to comply with the zone objectives. The applicant is correct in this regard. WLEP, and cl 2.3(2) in particular, do not require a development to comply with the zone objectives. However, I do not read the Commissioner as having said this. On a fair reading of the sentence as a whole, in the context of the Commissioner's earlier discussion, the Commissioner's statement was a way of referring to the fourth objective of the zone "to ensure that development is of a height and scale that achieves the desired future character of the neighbourhood". The Commissioner was making two points. The first was a factual finding: the development is of a height and scale that does not reflect the desired future character of the neighbourhood. The second was that such a development was not consistent with the objective of the zone "to ensure that development is of a height and scale that achieves the desired future character of the neighbourhood". The use of the word "ensure" in this objective conveys a similar meaning to the word "require" used by the Commissioner. This may have been the prompt for the Commissioner's choice of language. I do not consider that the Commissioner's language reveals that the Commissioner misdirected herself in determining the consistency of the development with the zone objectives.
15. As to the fourth category of errors, I do not find that the Commissioner misdirected herself by substituting a test that the development comply with rather than be consistent with the zone objectives. It is true that in [138] the Commissioner did use the words "comply with" rather than "consistent with". But I do not read the Commissioner as having substituted a different test by using these words. The sentence in which the Commissioner used the words "comply with" was a conclusion that followed on from her findings in the earlier sentences in the paragraph and in the preceding discussion. This is clear from the word "therefore" as well as the language used in the sentence which echoes the language of cl 4.6(4)(a)(ii). The Commissioner has paraphrased cl 4.6(4)(a)(ii) rather than use the same language as is used in cl 4.6(4)(a)(ii). I read the Commissioner as having used the words "comply with" as bearing the same meaning as "consistent with". This accords with the Commissioner's findings in the preceding sentence that the development was of a height and scale that did not reflect the desired future character of the neighbourhood, which is one of the objectives of the zone. Having made that finding, the Commissioner concluded that the proposed development is not in the public interest as it did not "comply with" the objectives of the zone. This conveyed the same meaning as in cl 4.6(4)(a)(ii) that the proposed development was not in the public interest as it is not consistent with the objectives of the zone.

The applicant's argument that it was denied procedural fairness

1. The Commissioner, in making her findings about the impact of the development on adjoining or nearby properties from disruption of views, took into account the evidence of residents about objectors and the Commissioner's own observations made on the inspection of the site, as to the impacts on properties other than the one property identified as being in contention by the Council. The Council in its amended statement of facts and contentions filed on 5 September 2017 raised a particular contention of view loss (contention 3). The contention was: "The excessive height of the proposed development will have an unacceptable impact on existing private views from No 45-51 Cross Street, Double Bay ("Georges Centre")."
2. This contention was particularised as follows: "a) The excessive height of the proposed development as detailed in Paragraph 1 above, as well as the potential for additional roof top elements to the roof terrace, does not minimise impacts from the disruption of existing harbour views from the primary living areas and primary north facing private open space to the units on Levels 3 and 4 of the Georges Centre. b) The proposal fails to satisfy the following provisions: WLEP: Part 1 - Clause 1.2, Sub-Clause (2)(g) Part 4 - Clause 4.3(1)(d) and Clause 4.4(1)(a)(ii) WDCP: Part A1.1.5 - Objective O3 Part B3.1.3 - Objective O7 Part B3.5.3 - Objective O3 and Controls C5 and C8"
3. The reference in particular (a) to paragraph 1 is a reference to contention 1, "1. Building Height", which was that: "The proposed development should be refused because it is excessive in height." Contention 1 was particularised. Particular (a) noted that: "The proposal at 14.25m, fails to comply by 3.75m with the 10.5m maximum height control development standard and its objectives as prescribed by Woollahra Local Environmental Plan 2014- Part 4, clause 4.3…". Particular (b)(ii) was that: "By reasons of its height, the proposal, including the roof terraces: (ii) does not minimise negative impacts on the amenity of the adjoining and neighbouring residents with respect to scale, bulk, views and privacy as contended below."
4. Particular (c) stated that the proposal fails to satisfy certain provisions, including in WLEP, cl 4.3(1)(a), (b) and (d) and (2).
5. Contention 10 concerned the public interest: "The proposal is not in the public interest by reason of issues raised."
6. After this amended statement of facts and contentions was tendered at the hearing, the Commissioner asked the parties about the properties in relation to which there is a concern about view loss. The Commissioner asked: "The only question I would ask is in terms of the view impacts, what material is the applicant relying on or has the Council seen?" (Transcript 7/11/17, p24.48-24.50). Mr Hemmings SC, Senior Counsel for the applicant, took the Commissioner to three photographs taken from the Georges Centre. The Commissioner said: "I was saying that there's only three photos and I'll need to understand, obviously, where they're taken from, but just in terms of whether or not that adequately addresses view impacts from any reasonable locations is bound to be a question I am going to ask, and I don't really have any information about potential view impacts other than these three photos." (Transcript 7/11/17, p25.13-25.17).
7. Mr Hemmings noted that the three photographs are taken from the Georges Centre and continued: "Council has only raised a concern as we understand it in relation to the view from the Georges Centre." (Transcript 7/11/17, p25.37).
8. Mr Hemmings then referred to evidence given by local residents on an inspection of the Georges Centre on an earlier occasion about the potential view loss from other properties: "Commissioner, as you recall, we went - although there was someone speaking on behalf of the people at the Georges Centre on the last occasion, I invited the Council and the objector to take us to the property so we could inspect the potential impact on views and that invitation was not accepted. The Council hasn't sought that we start onsite so we're not going to those premises to have a look at the potential impacts on views. You've got the expression of opinion through each of my experts as to the potential impacts on views both generally against the objectors and as a Tenacity assessment." (Transcript 7.11.17, p25.48-26.6).
9. The Commissioner asked Mr Rigg, solicitor for the Council, to clarify the Council's contention about view loss. The Commissioner asked: "So just on that, Mr Rigg, is that the case, that Council's only concerned with - sorry, Mr Rigg, is it Council accepting that your only concern is with - from 45 Cross Street in terms of view impacts?" (Transcript 7/11/17, p27.50-28.2). After a break in the hearing, the Commissioner again asked Mr Rigg about the Council's contention on view loss. The following exchange occurred (Transcript 7/11/17, p30.9-31.21): "COMMISSIONER: Mr Rigg, I did ask prior to the break whether there was any other areas of view impact that the Council wished to press. So what evidence would you be able to bring to the Court on that? RIGG: Yes COMMISSIONER: Do you have a response for me on that question? RIGG: I think it's fair to not give evidence from the bar table. Council's planning officer, Dimitri Lukas, has considered the matter a public space affected by view loss and private premises as well. He'll be called. COMMISSIONER: Let's just go through the contentions. RIGG: Yes. COMMISSIONER: You lodged contention three, "The excess in height of the proposed development will have an unacceptable impact on existing private views from number 45-51 Cross Street, Double Bay". RIGG: Yes. COMMISSIONER: That's a specific issue for a specific location. RIGG: That's right. COMMISSIONER: In terms of other concerns, do they appear in the contentions or are they simply a response to the residents' issues? I understand the residents have raised concerns. RIGG: Yes. COMMISSIONER: And I have their submissions. But as I understand it, the Council hasn't pursued any other view impacts, specific view impact issue, in contentions or in evidence before the Court. RIGG: In terms of streetscape - HEMMINGS: Impacts on views. Paragraph 19 of the joint report Mr Lukas raises impact on views from the Georges Centre, and with the greatest respect, Commissioner, my understanding is the same as yours, at no time has the Council raise the potential for impact for anywhere other than impacts on the Georges Centre. It was identified in relation to three units over two floors and there's been no distillation down from that. He repeats it at paragraph 38. RIGG: Yes, that's the limit of it. COMMISSIONER: All right. HEMMINGS: Commissioner, I should tell you, you asked me a question earlier about what other information do I have to demonstrate the lack of impact on views on other properties and I'd be bringing in a small trolley because we have prepared over the long life of this project a vast array of plans, view lines, photographs, all looking backwards and then trying to project them forwards to work out what potential - where the potential for impact was and we'd satisfied ourselves that the potential for impact was very limited. And the Council then identified what it said was the specific impact and so we've responded to that contention in the detail that we have. With respect, we'd suggest that the Court wouldn't need to go behind whether there are any other potential locations from which there is a view impact and we'll just deal with those the Council has raised."
10. The consequence was that the contention on view loss remained as pleaded in the amended statement of facts and contentions. The only property on which the Council contended the excessive height of the development would have an unacceptable impact on existing private views was from the Georges Centre. The Council did not expand its contention on view loss to include view loss from any other private property or from the public domain.
11. After the Commissioner had asked these questions and the parties had responded that the only view loss in contention was from the Georges Centre, the Commissioner did not raise the issue of view loss from any other property or the public domain again. The Commissioner did not expand the contention of view loss herself by identifying view loss from any other properties, whether private or public, as an issue that the applicant needed to address.
12. In the judgment the Commissioner noted that the Council had limited the contention on view loss to only view impacts from the Georges Centre: "86. The four photos in the Council report, and this report itself, were the only documentation provided to the Court by the Council on the view loss issue. This was notwithstanding that the development had subsequently been amended and view loss was an issue raised in most of the objections to the development. Furthermore, the Council advised the applicant that the only view loss impacts required to be assessed for the hearing were those from the Georges Building apartments. 89. Specifically, Mr Hemmings noted that, in terms of respecting the existing character, the controls in the DCP only require that developments have regard to 'view corridors' (which were being retained), referenced only those view corridors from public places not private property, and the Council had not raised a contention with view impacts from public places. 90. On the basis of the Council's view impact concerns focusing only on three apartments in Levels 3 and 4 of the Georges Building, Dr Lamb assessed only the view impacts from these apartments."
13. Nevertheless, the Commissioner took into account view impacts from properties in addition to the view loss from the Georges Centre. The Commissioner stated: "122. The applicant's expert agreed that the proposed height breach caused by the penthouse would have an adverse impact on views from at least one apartment at 45 Cross Street. 123. As the Council did not require the applicant to address the view impacts from any property other than three apartments at 45 Cross Street, no evidence of potential additional view impacts to other properties in the broader locality, or from the public domain (such as William Street), was provided to the Court. 124. However, I consider it unlikely that there would not be additional view impacts to other properties located within the R3 zone further to the south or in development in the Double Bay centre as contended by residents and the Residents' Association. This is due to the topography of the area and the height of existing development in the Double Bay centre which overlooks the site with distant views to the harbour. 127. I agree with the applicant that the Council's expert evidence was wholly inadequate, not due to the quality of Mr Lukas's evidence but the lack of any additional supporting material or assessment on view impacts or in terms of contentions outside Mr Lukas's expertise. However, the site is close to the harbour and views to that harbour, even glimpses from public streets or private property, are highly valued and important to the streetscape and precinct. This was evident from resident objections raising this concern. 128. Even with evidence confined to views from only two levels of one development in the vicinity of the site, there were agreed adverse view impacts. Even if they are minor, they are unnecessarily caused by the height non-compliance."
14. The applicant contended that, by the Commissioner deciding the appeal on issues other than the principal contested issues, she denied the applicant procedural fairness. The applicant submitted that the principal contested issues were those identified in the Council's amended statement of facts and contentions. The Council's contention about view loss was limited to the view impact from one property only, the Georges Centre. Notwithstanding the concerns raised by residents and their evidence about view loss from other properties, and the questioning by the Commissioner at the hearing, the Council did not amend its contention on view loss to include view loss from any other private property or the public domain. The Commissioner herself could have expanded the contention on view loss to include view loss from the other properties that she took into account in her judgment, but she did not do so. The principal contested issues remained, therefore, those identified in the Council's amended statement of facts and contentions.
15. The applicant submitted that parties are only required to address the principal contested issues. Litigation in the Court, including in an appeal against a consent authority's decision to refuse consent to a development application, is adversarial in nature. The parties are opposed to each other and issues are joined between them. The parties are required to address only the principal contested issues that are joined between them. The Commissioner is bound to address the principal contested issues: Segal v Waverley Council (2005) 64 NSWLR 177; [2005] NSWCA 310 at [42], [44] and [99].
16. The applicant submitted that a principal contested issue joined between the parties was not the generic issue of view loss, but the specific issue of view loss from one particularised property, the Georges Centre, and from no other property. The Commissioner was bound to address this specific issue of view loss.
17. The applicant submitted that the Commissioner, by not limiting herself to addressing this specific issue of view loss but instead taking into account the issue of view loss from other properties, denied the applicant procedural fairness. The applicant had no opportunity to call evidence or make submissions concerning view loss from properties other than the Georges Centre.
18. The applicant submitted that the Commissioner's consideration of view loss from other properties was influential in her conclusion that the contravention of the height development standard was not justified under clause 4.6.

The Council's argument that there was no denial of procedural fairness

1. The Council contested that the Commissioner had denied the applicant procedural fairness. The Council contended that the issue of view loss was not limited to view loss from the Georges Centre only. True, contention 3 did only identify view loss from the Georges Centre. But contentions 1 and 10 expanded the issue of view loss, the Council submitted.
2. The Council referred to particular (b)(ii) of contention 1 that the development "does not minimise negative impacts on the amenity of the adjoining and neighbouring residents with respect to scale, bulk, views and privacy as contended below." The Council noted that one of the provisions cited in particular (c) was cl 4.3(1)(d), which is to minimise the impacts of new development on adjoining or nearby properties from disruption of views or visual intrusion. The Council also referred to contention 10 that "the proposal is not in the public interest by reason of the issues raised". The Council submitted that the "issues raised" included the negative impacts on the amenity of the adjoining and neighbouring residents with respect to views, raised in contentions 1 and 10.
3. The Council submitted, therefore, that the impact of the development on adjoining or nearby properties from disruption of views was one of the principal contested issues joined between the parties. The Council submitted that the applicant was aware that the residents in their evidence had raised concern that the development would adversely impact on views from adjoining or nearby properties, in addition to views from the Georges Centre. The applicant confirmed at the hearing that it was aware of this evidence. The Council submitted that the applicant had the opportunity to express these concerns of the Council (raised in contentions 1, 3 and 10) and the residents (raised in their evidence) that the development would impact on the views from properties other than the Georges Centre. The applicant elected not to do so at the hearing, but rather confined itself to addressing view loss from the Georges Centre. The Council submitted that in these circumstances, the applicant cannot now be heard to complain that the Commissioner denied it procedural fairness by considering the impact of the development on views from adjoining or nearby properties in addition to the Georges Centre.
4. The Council also submitted that any denial of procedural fairness was not material to the Commissioner's decision. The Commissioner's conclusion that contravention of the height development standard was not justified was able to be sustained by her finding of the view loss from the Georges Centre alone. The Commissioner found in [122] and [128]: "122. The applicant's expert agreed that the proposed height breach caused by the penthouse would have an adverse impact on views from at least one apartment at 45 Cross Street. 128. Even with evidence confined to views from only two levels of one development in the vicinity of the site, there were agreed adverse view impacts. Even if they are minor, they are unnecessarily caused by the height non-compliance."
5. The Council submitted that these findings of adverse view impacts on the Georges Centre were sufficient to support the Commissioner's conclusion that contravention of the height development standard was not justified. The Commissioner's further findings of adverse view impacts from other adjoining or neighbouring properties only added a further reason for the conclusion, but the conclusion was not dependent on these further findings.

The applicant's response to the Council's submissions

1. The applicant disputed that the Council's amended statement of facts and contentions extended the issue of view loss beyond view loss from the Georges Centre.
2. First, the Council filed the amended statement of facts and contentions in response to concerns raised by the applicant that the original statement of facts and contentions had inadequately particularised issues, including the issue of view loss. The original statement of facts and contentions had only referred to impacts on views as a particular to contention 3 that "the proposed development should be refused because it is an overdevelopment of the site and is excessive in its height, scale and bulk". Particular (e) to that contention was that: "The proposal does not minimise negative impacts on the amenity of the adjoining neighbouring residents with respect to scale, bulk, views, sense of enclosure and privacy". Particular (g) identified the provisions that the "overdevelopment" failed to satisfy, including WLEP cl 4.3(1)(a), (b), (c) and (d) and (2). There was no separate contention of view loss in the original statement of facts and contentions.
3. The amended statement of facts and contentions remedied this deficiency. The Council raised as a separate contention (contention 3) that the development would have an unacceptable impact on existing private views, but only from the Georges Centre and not from any other adjoining or neighbouring property. The Council moved particular (e) to contention 3 in the original statement of facts and contentions to be a particular of contention 1 in the amended statement of facts and contentions. Contention 1 in the amended statement of facts and contentions was that the proposed development should be refused because it is excessive in height. The Council also moved the list of provisions that the development failed to satisfy from being a particular to contention 3 of the original statement of facts and contentions, concerning the development being an overdevelopment, to be particular (c) to contention 1, concerning the development being excessive in height.
4. The applicant submitted that this amendment of the statement of facts and contentions makes clear that the Council particularly raised the issue of view loss but deliberately limited it to view loss from the Georges Centre and not from other adjoining or neighbouring properties.
5. The applicant submitted that neither contention 1 nor contention 10 of the amended statement of facts and contentions, on a proper reading, raises the issue of view loss. Contention 10 limits the issue of public interest by reference to the "issues raised" and the other contentions. In relation to view loss, contention 10 is dependent on where the issue of view loss has been raised in the earlier contentions. Contention 3 does raise view loss but expressly limits the issue to view loss from the Georges Centre. Contention 1 is concerned with the excessive height of the development. Although particular (b)(ii) states that the development does not minimise negative impacts on the amenity of adjoining and neighbouring properties with respect to views, this particular is qualified by the concluding phrase "as contended below". The applicant submitted that this refers to contention 3, where the Council contended that the excessive height of the proposed development would have an unacceptable impact on views from only one of the adjoining or neighbouring properties, namely the Georges Centre. The applicant contested the Council's submission that the concluding phrase "as contended below" referred to the provisions listed in particular (c), including cl 4.3(1)(d). Particular (c) and the provisions listed are not contentions at all; rather, contention 3 is what is "contended below".

There was a denial of procedural fairness

1. I find that the Commissioner did deny the applicant procedural fairness by considering the impacts of the development on views from properties other than the one property raised by the Council in its contentions.
2. For the reasons given by the applicant, the principal contested issue joined between the parties concerning view loss was limited to the view loss from the Georges Centre. This was contention 3 in the amended statement of facts and contentions. Contentions 1 and 10 did not expand the issue of view loss to other adjoining or neighbouring properties. I adopt the applicant's submissions concerning the proper reading of the amended statement of facts and contentions, summarised above. The Council at the hearing was asked by the Commissioner whether it was raising view loss from properties other than the Georges Centre and the Council answered that it was not. View loss from the Georges Centre was the limit of the contention concerning view loss.
3. The applicant was entitled to limit its case to addressing the issue of view loss from the Georges Centre as pleaded by the Council in contention 3. This limited issue of view loss was the principal contested issue that the applicant had to meet. It was not required to address a broader issue of view loss from adjoining or neighbouring properties.
4. If the Commissioner wished to expand the issue of view loss beyond that joined between the parties, the Commissioner was required to notify the parties and give them an opportunity to address and be heard on the broader issue of view loss from adjoining or neighbouring properties. As I said in Botany Bay City Council v Pet Carriers International Pty Ltd (2013) 201 LGERA 116; [2013] NSWLEC 147 at [101]: "It may be accepted that, as a general rule, if a Commissioner or Judge hearing a Class 1 appeal is to determine the proceedings by reference to matters beyond the issues identified by the parties, then procedural fairness requires that the parties be given notice of those additional matters and accorded the opportunity to be heard upon them: see Cavasinni Constructions Pty Ltd v Fairfield City Council (2010) 173 LGERA 456 at [39]. This is because ordinarily, the Court determines the proceedings on the substantive issues joined between the parties: Segal v Waverley Council [2005] NSWCA 310; (2005) 64 NSWLR 177 at [42], [95] and Design Power Associates Pty Ltd v Willoughby City Council [2005] NSWLEC 470; (2005) 148 LGERA 233 at [37], [38]. If, however, the Court considers that there are issues additional to those joined between the parties that need to be considered, procedural fairness requires the parties to be notified and given an opportunity to be heard in relation to the additional matters." See also the Presbyterian Church (New South Wales) Property Trust v Woollahra Municipal Council [2015] NSWLEC 47 at [23].
5. The Commissioner failed to give notice to the parties that she intended to determine the appeal by reference to matters beyond the issue joined between the parties. The Commissioner knew that the issue of view loss was limited to view loss from the Georges Centre alone. She questioned both the applicant and the Council about this limitation at the hearing. She was advised by both parties that they did not intend to expand the issue or address in evidence or submissions any impacts of view loss from adjoining or neighbouring properties, other than the view loss from the Georges Centre. The Commissioner expressly noted this limitation of the issue in her judgment. Yet, notwithstanding this knowledge that the issue of view loss was so limited and that the parties had run their respective cases addressing this limited issue, the Commissioner did not confine her attention to the issue joined between the parties but instead considered the impacts of view loss from adjoining or neighbouring properties and the public domain. This denied the applicant procedural fairness.
6. The Commissioner's consideration of the impacts of view loss from the adjoining or neighbouring property and the public domain was influential in her decision, as the discussion in [124], [125] and [127] of her judgment reveals. It is not necessary to establish that the Commissioner's consideration of the view loss from adjoining or neighbouring properties and the public domain was dispositive of her decision. No doubt the impact of view loss from the Georges Centre (even if it was minor, as noted in [128]) influenced her decision as well. It is sufficient that the Commissioner's consideration of view loss from properties other than the property raised in contention 3, which consideration denied the applicant procedural fairness, deprived the applicant of the possibility of a different decision of the Commissioner: Stead v State Government Insurance Commission (1986) 161 CLR 141 at 147.
7. The appellate jurisdiction of the Court in determining an appeal under s 56A of the Court Act on the grounds of denial of procedural fairness is analogous to judicial review of administrative decisions on the denial of procedural fairness. Where the Court finds that a party has been denied procedural fairness, it will be rare that such an error will not result in the Court granting relief and making a remitter order: Castle Constructions Pty Ltd v North Sydney Council (2007) 155 LGERA 52; [2007] NSWCA 164 at [123]. It is sufficient to warrant the grant of relief and the making of a remitter order that there was a possibility of a different outcome had there been no denial of procedural fairness: Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; [2000] HCA 57 at [3]-[4], [80], [104], [131], [172], [211]. It cannot be said that compliance with the requirements of procedural fairness by the Commissioner could have made no difference to the conclusion reached by the Commissioner: Stead v State Government Insurance Commission at [145].
8. The Commissioner's denial of procedural fairness to the applicant involves a question of law appellable under s 56A of the Court Act.

Form of remitter order

1. The applicant has established that the Commissioner erred on questions of law by misconstruing and misapplying cl 4.6 and by denying the applicant procedural fairness. Ordinarily, the appropriate relief is to uphold the appeal, set aside the decision and orders of the Commissioner and remit the proceedings to the Commissioner to be determined according to this Court's reasons for judgment.
2. On the hearing of the appeal, the applicant sought that the remitter order be exclusionary: that the matter be remitted to a Commissioner or Commissioners other than Commissioner Smithson. The applicant submitted that the errors of law committed by the Commissioner, particularly the denial of procedural fairness, made an exclusionary remitter order appropriate.
3. The applicant submitted that there is a reasonable apprehension that the Commissioner will not decide the case impartially in the sense that she has prejudged the very issues of fact in respect of the very same development application and written request under cl 4.6, which she would be required, if she was to rehear the matter on remittal, to determine afresh: Baulkham Hills Shire Council v Basemount Pty Ltd (2003) 126 LGERA 339; [2003] NSWCA 189 at [22].
4. The Council did not contest the appropriateness of an exclusionary remitter order.
5. I find in the circumstances of this case, having regard to the errors of law made by the Commissioner, that it is appropriate to make an exclusionary remitter order. The form of remitter depends on the circumstances and in particular the nature of the error on a question of law made by the Commissioner. As Tobias JA noted in Baulkham Hills Shire Council v Basemount Pty Ltd at [23]: "It should not be assumed that merely because a Commissioner's decision is set aside on a s 56A appeal on the ground of error of law that it necessarily follows that any re-hearing and re-determination of the appeal should be by a Commissioner other than the Commissioner from whose decision the appeal was brought. There are many errors of law which would not require an exclusionary order under s 56A(2)(b). Thus if a Commissioner has mistaken the law and asked himself or herself the wrong question, there may be no reason why the appeal should not be remitted to that Commissioner to be determined by him or her in accordance with law. Again, where the error only involves the misconstruction of a statutory provision or the like there may be no reason why the Court as originally constituted cannot apply the facts as found by it to the law as declared on the appeal. In such cases the Commissioner's earlier decision may have been based on a false issue or be otherwise severable so that there will have been no pre-judgment on the real issue."
6. There are some types of errors, however, where an exclusionary remitter order may be appropriate. Where the proceedings below had been conducted in such a way as to give rise to a reasonable apprehension of bias, this will usually justify an exclusionary order: Seltsam Pty Ltd v Ghaleb (2005) 3 DDCR 1; [2005] NSWCA 208 at [12]. Where there has been a denial of procedural fairness in the conduct or determination of the proceedings below, this might also ground an exclusionary order, depending on the circumstances of the denial of procedural fairness: Baulkham Hills Shire Council v Basemount Pty Ltd at [22], [24]. One circumstance might be where the Commissioner determines issues of fact without notice, evidence or argument, which issues would need to be redetermined on the rehearing. Where there is a reasonable apprehension that the Commissioner might not decide the matter impartially because the Commissioner has prejudged the same issues of fact that will need to be determined afresh on the rehearing, an exclusionary remitter order may be appropriate: Baulkham Hills Shire Council v Basemount Pty Ltd at [22], [24]; Castle Constructions Pty Ltd v North Sydney Council at [85], [140]; Boral Cement Pty Ltd v SHCAG Pty Ltd [2013] NSWLEC 203 at [136], [137].
7. In this case, on the rehearing on remittal, the Commissioner will have to determine the same issues of fact about the impacts of the development on view loss and the consistency of the development with the objectives of the development standard and the objectives of the zone concerning minimising view loss that the Commissioner prejudged. In these circumstances, a fair minded lay observer might reasonably apprehend that the Commissioner might not bring an impartial mind to the resolution of the same issues on the rehearing of the matter: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 at [7].
8. Saying that there is a reasonable apprehension that the Commissioner might not bring an impartial mind to the resolution of the issues requires no prediction about how the Commissioner would in fact approach the matter. The question is one of possibility (real and not remote) not probability: Ebner v Official Trustee in Bankruptcy at [7].
9. I therefore consider that it is appropriate in the circumstances of this case to make an exclusionary remitter order.
10. In relation to costs, the parties accepted that the usual order for costs on a s56A appeal should apply, namely that costs should follow the event.

Orders

1. The Court orders: 1. The appeal is upheld. 2. The decision and orders of Commissioner Smithson of 20 December 2017 are set aside. 3. The proceedings are remitted to a Commissioner or Commissioners (other than Commissioner Smithson) to be determined in accordance with these reasons for judgment. 4. The respondent is to pay the applicant's costs of the appeal.

Amendments 11 December 2018 - Correction to typographical error at [87]. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 11 December 2018