J & J O'Brien Pty Limited v South Sydney City Council

2. Pending further order the Respondent be restrained forthwith from determining Development Application No. U02-00097 without first: (a) incorporating in Council's business papers a copy of the report dated 1 May 2002 bearing the handwritten notation "Previous report by Alan Middlemiss"; and

When the application returned before Lloyd J on 31 May 2002 no evidence was taken. Accordingly, It has not been explained how Lloyd J was persuaded to make Order 2. Mr Griffiths, who appeared for the council, informed the Court on that day that the council had no intention of attaching a copy of the report referred to in Order 2(a) and gave short reasons to the following effect:- (1) The report had never been signed off by the officer; (2) The officer was on holidays; (3) The report was a draft; (4) Reports are never signed off by the officer until they are checked by the Area Manager; and (5) The report was found to be deficient in a number of respects and is so on its face.

That explanation given by Mr Griffiths concisely sums up the gravamen or essence of the argument before me.

The final amended application claims the following relief:- 1. A declaration that a determination by the Respondent Council of Development Application No. U02-00097 adopting the report dated 1 May 20002 signed by Ms Amanda Treharne, Acting Statutory Planning Manager ("the Treharne Report"), would be invalid and of no effect.

2. An order that the Respondent Council be restrained forthwith from determining Development Application No. U02-00097 without first: a. incorporating in Council's business papers a copy of the report dated 1 May 2002 bearing the handwritten notation "Previous report by Alan Middlemiss"; and b. taking into account that report.

3. An order that the Respondent Council forthwith determine Development Application No.U02-00097 in accordance with law.

4. An order restraining the Respondent Council from determining Development Application No. U02-00097 by adopting the recommendation of the Treherne Report.

There is an initial argument by the council that the Court cannot, or at least should not, make Order 2 in the amended application. Mr Hale SC, who appears for the applicant, subsequently foreshadowed that Order 4 should be amended to make it clear that the council should be restrained from determining the application "solely" by adopting the recommendation of the report prepared by Amanda Treharne ("the Treharne report").

It is a well established principle that if a decision-maker excludes from consideration some factor, which should effect its determination, the conclusion could be liable for review ( Avon Downs Proprietary Limited v The Federal Commissioner of Taxation (1949) 78 CLR 353 at 360).

An essential element to the applicant's case is an argument that stems from the decision of Wilcox J in Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155, to the effect that if the council, as the decision-maker, fails to take account of factual material readily available to it and to its knowledge is likely to be of critical importance in relation to a central issue for determination, the particular decision will be unreasonable and, therefore, an improper exercise of the power. In Prasad Wilcox J expressed the tentative view at p 169 that a decision is an improper exercise of a power if the decision-maker makes the decision by unreasonably failing to ascertain relevant facts which it knew to be readily available to it. The opinion expressed by Wilcox J was in the context of the Administrative Decisions (Judicial Review) Act 1977 (Cth) but nevertheless has been consistently quoted as being indicative of a general principle.

However, if there is such a general principle its application should have regard to what was said in Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others (1985-1986) 162 CLR 24, particularly at p 61, where Brennan J makes it clear that a decision-maker is not required to inquire into information that is not credible on its face and is not bound to bring to mind all the minutiae within its knowledge relating to the matter.

The relief the applicant is seeking is in the nature of mandamus. Mandamus can never go to command the exercise of discretion in a particular manner. It can go no further than to command the exercise of the discretion ( Randall v The Council of the Town of Northcote (1910) 11 CLR 100 at 105).

In Parramatta City Council and Another v Hale and Others (1982) 47 LGRA 319 Moffitt P, the then President of the Court of Appeal, pointed out that the obligation for the council is to take into consideration matters which are, in fact, relevant and not those which the authority, or its officers, considers relevant. Thus, a council cannot avoid its obligation to consider and, in its ignorance, give a valid consent without considering a relevant matter. The President recognised that while it is the collegiate body that makes the decision it must take the matters into consideration and, accordingly, must be aware of such matters to enable it to do so. The council may rely on the inquiry, advice and recommendations of its officers.

The fundamental issue that arises in these proceedings is whether the Court should move to determine whether the so-called report by Alan Middlemiss is relevant and, if so, whether to direct the council to take it into consideration.

In Baulkham Hills Shire Council v Land Commission of New South Wales (1985) 55 LGRA 337, the Court of Appeal had to consider the question of whether it is appropriate to make an order in the nature of mandamus directing a council to give its unconditional consent or, alternatively, whether the applicant should appeal to this Court under the provisions of s 97 of the Environmental Planning and Assessment Act 1979 ("the EP&A Act"). Care must be taken to understand the factual circumstances in the Land Commission decision. A clause in the relevant planning instrument provided that the council shall not refuse to grant any application for permission to carry out development made by, inter alia, the Land Commission of New South Wales, nor attach conditions to its consent except with the concurrence of the Minister of Planning and Environment. The validity of the provision in the planning instrument was challenged. It was not necessary to resolve the question of validity having regard to the conclusion reached in respect of the effect of the Miscellaneous Acts (Planning) Repeal and Amendment Act 1979 Sch 3 cl 2, which gave full force and effect to the planning instrument as a deemed environmental planning instrument. The decision of the council to grant consent conditionally was held to be void by Hope JA. McHugh JA agreed but Kirby P dissented. Hope JA went on to find that no question of severability arose and that the consent itself was void. He found it undoubted that the council had a duty not to refuse or to give a conditional consent without the concurrence of the Minister. It did not have the concurrence of the Minister. He further found that the council had a duty to deal with the application and, in the absence of the Minister's concurrence, performance of that duty can result only in the granting by the council of an unconditional consent. The facts in that case are quite distinct from the present.

The Court is not precluded from admitting into evidence what it is a council acting reasonably ought to have done with respect to a particular development application ( King v Great Lakes Shire Council and Another (1986) 58 LGRA 366). The question posed in these proceedings, however, is whether the Court should direct the council to take into consideration a particular matter.

In John Alexander Graham v Hornsby Shire Council (Pearlman J, NSWLEC, 4 March 1998, unreported) Pearlman J considered whether the remedy in the nature of mandamus requiring the respondent council to determine a development application was available in circumstances where a council had not determined a development application lodged over three years before. The time for appeal had obviously expired. Her Honour considered that it was no answer to the applicant's case that it was open for him to lodge another development application. She was aware of the caution enunciated by Dixon CJ in Tooth and Company Limited and Another v The Council of the City of Parramatta (1955) 97 CLR 492 at 498 to the effect that a court should be careful that mandamus is not used to avoid recourse to a remedy available and the general rule that the court exercises its discretion against granting a writ of mandamus where a remedy is provided by way of appeal or the like which is equally convenient, beneficial and effective. Her Honour took into account the fact that the council had resolved to delay the determination of the development application unreasonably. Furthermore, the failure to appeal against the council's deemed refusal was explicable on the facts before her. The council was ordered to determine the development application within 28 days. The circumstances in Graham are also quite distinct from the present where the applicant has available to it a right of appeal and has chosen not the exercise it.

The Chief Judge was again asked to consider making an order, this time in effect compelling a council to determine a development application by refusing consent, in Bongers v Hawkesbury Shire Council (reported as Byron Shire Council) (1999) 105 LGERA 274. Recognising that the Court has jurisdiction under s 124 of the EP&A Act to make any order as it thinks fit to remedy or restrain a breach of the EP&A Act, her Honour was not satisfied that the Court had power to make the order requested in the circumstances of the case. However, she found that the Court could, pursuant to s 20(2)(b) of the Court Act, command the exercise of the function of determining the development consent by the council. Her Honour nevertheless refused to make the orders which the applicant sought as she considered it would require the Court to usurp a function that the legislature had vested in the council. Once again, the factual circumstance in Bongers (no right of appeal had arisen) were different from the present in that the relief claimed required the Court, in effect, to determine the development application by refusing consent.

One of the compelling reasons the council has not considered the matter is the effect of the orders made by Lloyd J on 29 May 2002 whereby it has been prevented from doing so except under specific circumstances. I have not been persuaded the specific circumstances are matters which the Court should control by way of an order in the nature of mandamus.

The case has been conducted by the applicant on the assumption that there has been, since about April 2002, a draft report assessing the development application identified as the "Middlemiss Report". A copy of this so-called draft report was forwarded to the applicant's solicitor by facsimile on 27 May 2002. There is an earlier edition of this document dated March 2002. The first copy bears handwritten notes which, if adopted, would cause some of the proposed conditions to be re-drafted. These alterations do not appear to have been incorporated in the draft report forwarded to the applicant on 27 May 2002 which bears the date of 1 May 2002. There is a third copy of the draft report, also bearing the date 1 May 2002, which incorporates the handwritten amendments made to the report of the first draft dated 1 May 2002.

The council's Acting Statutory Planning Manager, Ms Treharne, has given evidence that the amendments made in handwriting to the first draft report dated 1 May 2002 were done by her. Ms Treharne told the Court that when Mr Middlemiss went on leave she again made alterations to the document following an undertaking, given by the General Manager of the council to the applicant, that the application would be considered at a Planning and Development Committee ("the committee") meeting on 29 May 2002. At the time of that review, Mr Middlemiss was on annual leave for approximately three weeks. Ms Treharne thereupon undertook to re-assess the whole application and to prepare a final report.

The applicant has tried to make a case that because Ms Treharne redrafted the earlier document to such an extent, the council will not have the benefit of the information contained in the earlier draft prepared by Mr Middlemiss. Whereas the early drafts were on the basis that the officer would recommend to the committee that the development application be approved subject to conditions, the final document which was settled by Ms Treharne recommended that the council refuse the grant of consent for the following reasons, namely:- (1) That insufficient information has been submitted with the application as specified in Clause 50 of the Environmental Planning and Assessment Regulations, to enable full assessment of the application pursuant to Section 79(c) of the Act;

(2) That the proposal potentially represents an unacceptable intensification of the present use and may adversely impact on the residential/amenity in the nearby Residential 2(b) zone;

(3) That the proposed part balcony enclosure and first floor external alterations may detract from the appearance character and significance of the building and the conservation area;

(4) That the proposal roof level additions and works may detrimentally impact on the significance of the building on the conservation area given the highly visible setting of the site; 22. Immediately prior to making the above-mentioned recommendation, the council officer made the following observations by way of conclusions:- The proposal has been assessed with regard to Section 79C of the Environmental Planning and Assessment Act 1979 and Council policies. As outlined in the report, the application as submitted and as subsequently amended, throughout the course of assessment, is lacking in adequate detail to enable full assessment. Notwithstanding that, there are also a number of concerns regarding the proposal, related to heritage and the impact not only on the building, but also the streetscape. The issue of intensification of the use and potential noise and amenity impacts are also a concern.

As Council would be aware, the previous development applications of a similar nature, were refused by Council and there refusals were upheld in the LEC. The appeal to the Supreme Court is listed for hearing on 6 August 2002. Pike, Pike and Fenwick have raised concern with respect to the current application, so as not to risk Council's position on the case.

Notwithstanding this however Council has no option but to refuse the application, taking into account the matters raised above, and the requirements of the Act and Regulations. 23. Although, as mentioned previously, the early reports have been consistently identified by the applicant as "Middlemiss reports" , it must be appreciated that in each case they were draft reports prepared over the name of Amanda Treharne as Acting Statutory Planning Manager, on behalf of the Director of City Environment. Ms Treharne explained that the procedure within the planning section of the council is for the Area Planning Manager to first consider the matter. Thereafter the Statutory Planning Manager signs off on the report with the Director of Planning and Building. No report is placed on the business paper of the committee or the council until it has been signed off by the General Manager. Mr Middlemiss at relevant times was the Acting Area Manager. 24. It is apparent from the series of documents presented in evidence, and the sequence of events, that Mr Middlemiss undertook the task of investigation and assessment and thereafter the drafting of a preliminary report for consideration and, if approved, for adoption and endorsement by Ms Treharne. It became necessary for her to fully re-assess the whole application when she was not able to gain access to Mr Middlemiss during his absence on leave following the undertaking given by the General Manager that the application would be considered at the committee meeting on 29 May 2002. 25. The report by Ms Treharne following her re-assessment of the application was reviewed by the General Manager and included on the agenda for the meeting scheduled on 29 May 2002. The report was not considered at the meeting due to the constraints imposed by the orders made by Lloyd J. 26. Notwithstanding that, in the Courts opinion, it is unnecessary to do so having regard to its ultimate conclusion in respect of the claim for relief, it is convenient, as well as appropriate, to contrast the form of the report forwarded to the applicant's solicitor on 27 May 2002, with the final form of the report which Ms Treharne proposed to submit to the meeting of the committee on 29 May 2002. The applicant has addressed the differences in some detail. The analysis, in any event, assists to illustrate the difficulty the Court has encountered in seeking to determine the application in favour of the applicant. 27. The proposed development is described in both copies of the report in almost identical terms, except for the addition of a reference to "new walls and bi-fold doors to the wall in front of the balcony" and "use of the roof area as a garden terrace in conjunction with the bar" to the later copy of the report. This difference is apparently no more than an amplification of the description of the proposal following the lodgement of further amended plans by the solicitor for the applicant on 29 April 2002. 28. The earlier report recommended deferred commencement subject to conditions. The final report recommended refusal. 29. Although the earlier report states, almost in passing, that there are a number of matters which still require the applicant's further attention, the second was more poignant and stated that insufficient information has been submitted with the application by way of a Statement of Environmental Effects and a set of correctly drawn and coloured plans. This is said to "prohibit" a full assessment of the application. 30. Different information is provided in relation to the hours of operation considered under the heading of "Residential Amenity - Hours of Operation". 31. In the latest report, a new heritage issue is raised "with respect to insufficient information to enable assessment of the full impact on the building and the conservation area". Ms Treharne deletes reference to the fact that the balcony area was formerly partially enclosed with clear glazing, "as evidenced in a photo of the site seemingly from the 1940's and again still in existence in a photo held on the file dated 1986". Under the heading "Background History" reference is made to appeals to this Court. They are not mentioned in the earlier report. 32. In describing the earlier proposal, the reports differ in that the later edition observes that no Statement of Environmental Effects was submitted in support of the application. It makes other complaints regarding the lodgement of supporting material, particularly as the applicant has requested the council to link the current application to the two previous applications, both of which were refused by the council and, on appeal, by this Court. 33. The latest report identifies a major problem in assessing the current development application as being the confusion in identifying exactly what the application is seeking to have approved. Other detrimental remarks are made regarding the way in which the applicant has responded to negotiations early in 2002 where it was agreed that the current appeals would be withdrawn if there was a favourable outcome to a revised development application. The second report reflects Ms Treharne's dissatisfaction with the information provided. 34. Initially, the draft report indicates that the council's Heritage Planner does not oppose any roof additions which are not visible from the street, but strongly opposes the enclosure, whether partial or total, of the balcony facing Missenden Road. It is said the enclosure of the balcony, opposed by the Heritage Planner, is reflected in the recommended deferred commencement consent as requiring the enclosure of the balcony to be deleted. In the final report three key aspects of the heritage impacts of the proposal are commented upon adversely. It is noted that the applicant has submitted a Heritage Impact Statement which makes an assessment based on a different set of plans which are not currently available. No new heritage impact assessment has been undertaken or submitted in support of the current application. 35. The second report identifies a non-compliance with cl 28 (i)(b) of the LEP. This relates to urban design principles. The earlier report makes the following observations in respect to this issue:-

It would be conditional upon consent that screening at the upper level be established in such a way as to serve the purpose of security for the building and its occupants whilst at the same time not being visually intrusive when viewed from King Street.

36. It is not surprising that the second report moves away from such a proposed condition (see Mison and Others v Randwick Municipal Council (1991) 73 LGERA 349 and Remath Investments (No. 6) Pty Limited v Botany Bay Council (No. 2) (Talbot J, NSWLEC, 11 December 1996, unreported) cited with approval by the Court of Appeal in Weal v Bathurst City Council and Another (2000) 111 LGERA 181 at 204). 37. Although the first report states that no unreasonable impacts would arise in regard to additional floor space proposed, the second report raises concerns with respect to the proposed use of the areas and the resultant issues which may arise from intensification of the use. Complaint is also made in the second report to the effect that elevations at the upper level do not adequately show the extent of the proposed works thereby presenting difficulty for making an assessment as to the acceptability of the bulk and scale of the additions. 38. The first report referred to the issue of potential noise emitting from the property as being subject to a trial "as outlined to the applicant" . Perhaps, understandably, this observation is not repeated in the second report. The first report dismisses the need for any additional car-parking, whereas the second report reserved judgment in that respect until there is an indication of the patronage envisaged at the upper floor. An extensive submission in relation to the hours of operation and trading is included in the second report whereas there is only nominal reference to this aspect of the development in the earlier draft. 39. By contrast, the earlier draft expresses almost no concern about the impact on nearby residential areas whereas the final report recommends refusal of the application on this ground. 40. The conclusions and recommendations in the final report are set out above. 41. The earlier document, however, concluded that the proposal was acceptable and recommended that the council grant deferred commencement consent pursuant to s 80(3) of the EP&A Act on the basis that the consent shall not operate until the applicant has provided details in response to a requirement that a management plan be submitted with details of the operation of the hotel, particularly in respect of the first floor and upper level, including the roof garden, together with evidence of any relevant approval of the Licensing Court of New South Wales and the Liquor Administration Board. It also contains a recommendation that there be a condition whereby the increased hours shall be commenced after six months of the finalisation of the deferred commencement consent and shall cease after a period of 12 months from that commencement when a further development application is required. 42. The ultimate reasons for refusal of the application can be properly regarded as a reflection of the issues raised throughout the final addition of the report. 43. Mr Hale solicited a number of concessions from Ms Treharne during cross-examination. She conceded that some of the issues raised as reasons for refusal, particularly in regard to the extent to which the alterations at the upper levels could be observed from the street, are not sustainable. She was not prepared to make further concessions in respect of all of the reasons for refusal. She was particularly adamant that the lack of detail in the plans accompanying the application is a major concern. There is no evidence that Ms Treharne has visited the site. The Court accepts that her assessment is based upon facts provided by Mr Middlemiss and her perusal of the written material in the file, including the submitted plans. 44. The reference to the appeals to the Supreme Court in the conclusion to the final report prepared by Ms Treharne is obviously intended to be a reference to this Court. It is the applicant's contention that by referring to the risk to the council's position in the appeals Ms Treharne has raised an irrelevant matter. Irrespective of whether that is so, in the Court's view, the conclusion cannot be read as being related to that risk. The next paragraph makes it quite clear that irrespective of whatever risk might have been perceived, the council nevertheless has no option but to refuse the application taking into account all of the other matters, including "the requirements of the Act and Regulations" . The conclusion is not qualified in the way the applicant submits. In any event, the council has now given an undertaking not to include that paragraph in the final Treharne report. Moreover, Ms Treharne's evidence after cross-examination is she does not now understand the advice from the solicitors to be in those terms or to like effect. 45. It is also salient that the formal recommendations made by Ms Treharne make no reference to any risks associated with the earlier litigation and are not self-evidently related to those perceived risks. Notwithstanding that Ms Treharne may not have visited the site, the Court is nevertheless not satisfied that the material in the draft report prepared by Mr Middlemiss justifies the making of an order that the draft report be placed before the council as a relevant matter to be taken into account and considered before the application is determined. The conditions recommended in the earlier draft report in some respects, address the same issues which ultimately form the basis for the final recommendation that the application be refused. 46. The Court is of the opinion that deferred commencement consent, as contemplated in the first draft, is not justified. The requirement for the submission of a management plan could raise further issues which need to be resolved as part of the determination of the application for development consent. The hours of operation were left unresolved. 47. The overriding problem with the applicant's case is that the Middlemiss Report has never existed except as a draft of a report to be furnished to the committee by Ms Treharne. The Court is satisfied that Mr Middlemiss' brief was to investigate the application with the object of providing the information required by Ms Treharne, as the officer primarily responsible for reporting to the council. The Court has not had the benefit of hearing evidence from Mr Middlemiss. Although he was in Court during the whole of the hearing, he was not called. Ultimately he was released from the requirement to attend pursuant to a subpoena issued by the applicant. The Court is entitled to assume, therefore, that any evidence Mr Middlemiss could have given would not have taken the Court to any fresh material. 48. It would only be in extraordinary circumstances that a council could be required by the Court to consider every piece of information gathered in the course of an investigation, including every draft of each report ultimately presented to it. Although the applicant is not seeking such wide relief, the Court runs the risk that without making such a comprehensive order the Middlemiss Report (so-called) could be given unnecessary weight. 49. The applicant has been constantly represented by a solicitor, Mr Crawley, who appears to have had the benefit of ready access to the council's officers throughout the processing of this application and the earlier applications. Moreover, the realistic expectation is that when the matter ultimately comes before the council itself, or the committee, Mr Crawley, or any other representative of the applicant for that matter, will be entitled to be heard and to put any of the matters which are perceived to have been omitted from the council officers report for consideration. 50. Ms Treharne has given evidence that she considered the development application. In her view, the review of the application by Mr Middlemiss was deficient in the following respects:- _ Insufficient information had been submitted with the application to enable a full assessment eg no clear elevations or details of the proposed work, particularly to the roof terrace and second floor structure;

_ Notification of the application had been incorrectly undertaken and misinformation to do with the exact nature of the proposal may have mislead [sic] adjoining/affected property owners; _ The proposal if approved had the potential to have an adverse impact on the amenity of the nearby residential neighbourhood; _ The proposal had the potential to impact adversely on the significance of the building in a heritage conservation area;

It is not for the Court to determine whether this assessment is correct but merely to be satisfied that the actions taken by Ms Treharne, on behalf of the council, are sufficiently reasonable to find that it is not appropriate to make an order in the nature of mandamus either in the terms formulated by the applicant or as reflected in the interlocutory orders made on 29 May 2002.

During the hearing it became apparent that at the time Mr Middlemiss had any role to play, that is before he went on leave, a final set of plans, upon which the applicant now relies, was not available to the council.

The applicant has a right of appeal following the deemed refusal of the application. This course has been, and still is, one that is equally convenient, beneficial and effective. Moreover, the council has not shown disinclination to determine the application. It is reasonable to infer that if orders had not been made by Lloyd J on 29 May 2002, the committee would have proceeded to consider the application at its meeting on that day. The reason that consideration has been delayed in the meantime is the restraint imposed by the Court. Otherwise, I am satisfied the council is able and willing to proceed with its consideration and determination.

In the Court's opinion, it would be an unnecessary and unwarranted interference with the function of the council, as consent authority, to make a direction that it take into account a particular matter or constrain its consideration of another matter. What is relevant is a matter for the council to decide. In any event, the draft of a report prepared by a junior officer for consideration and adoption by a more senior officer is not, self-evidently, a relevant matter. The particular document in this case is not, in my view, sufficiently relevant to justify an order, even if the Court was disposed to make one.

Having regard to the whole of the circumstances outlined above, the Court is not satisfied that the applicant is entitled to relief. The interlocutory orders made by Lloyd J on 29 May 2002 will be discharged.

It is appropriate, in that case, that the applicant pay the respondent's costs. However there has been no formal argument in relation to costs. Accordingly, the issue of costs will be reserved.

The formal orders of the Court are as follows:- (1) The application is dismissed.

(2) The orders made by Lloyd J on 29 May 2002 are discharged. (3) Costs reserved. (4) The exhibits may be returned.

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