Kinloch v Newcastle City Council [2016] NSWLEC 109 | Case summary

Land and Environment Court (NSW)|2016-03-24|Before: Sheahan J

Counsel: Mr S Nash, barrister (First and second applicants) Submitting (First and third respondents) Ms A Pearman, barrister (Second respondent)

Solicitors: Gadens Lawyers (First and second applicants) Sparke Helmore Lawyers (First and third respondents) Newcastle City Council (Second respondent) File Number(s): 2016/165674 (formerly 40419 of 2015)

The Litigation History

The originating summons, filed by the Kinlochs, without legal representation, on 18 May 2015, had named "the Heritage Council" as the 1st respondent and Newcastle City Council as the 2nd respondent, and had not joined the Darts at all.
The Kinlochs then appointed a solicitor, who filed his appearance on 1 July 2015, and a "remedial" Notice of Motion on 20 July, to restructure the proceedings. Appropriate orders were made by Pain J on 24 July 2015, as a result of which an Amended Summons, and a Notice of Discontinuance against "the Heritage Council", with no order as to costs, were filed later that day.
On 12 August 2015, the Darts filed a submitting appearance, save as to costs, and, on 17 August 2015, the Council, as the only active respondent/contradictor, filed a "Statement of [its] Reasons" ("SOR").
The Kinlochs filed in Court, on 1 September 2015, their Points of Claim ("POC" - Court Book, tab 6, fol 43 - 44), and the Council filed its Points of Defence ("POD") on 16 November 2015.
The major issues joined on those pleadings involved the strict denial (Tp1, L37), in the POD, of POC paragraphs 12 and 13, which say (Court Book, tab 6, fol 43 - 44): 12 Because of conflicts with the DCP which were not minor, the DAC was required to determine the DA pursuant to the delegation of 24 September 2013. [the nominated conflicts were "side/rear setbacks and boundary walls", privacy, view sharing, and landscaping] ... 13 The purported determination of the DA and issue of the Consent by the Delegate was beyond the Delegate's power and the Consent is invalid.
The POD invoke, "further or in the alternative", s 25B of the Land and Environment Court Act 1979 ("the LEC Act") (POD 12(b)), and the Court's discretion (POD 13(b)).
When the case came on for hearing on 24 March 2016, the Kinlochs were represented by Mr S Nash of counsel, and the Council by Ms A Pearman of counsel.

The Evidence

There was general agreement on the tendering of documentary material, and neither expert witness was required for cross-examination. Counsel saw no utility in calling them, given that they "fundamentally approach the matter on a completely different basis" (Tp19, LL31 - 35).
Before the Court there are: 1. a two-volume Evidence Book (Exhibits EB1 and EB2), filed by the Kinlochs; 2. the Court Book ("CB"), also filed by the Kinlochs, reflecting the above litigation history, and also containing, inter alia, the Council's Notice of Determination (tab 8), its SOR (tab 9), the ASF (tab 10), and the Agreed Chronology (tab 11); and 3. a Supplementary Court Book (Exhibit SCB) filed by the Council, containing copies of "agreed ... relevant legislation" (see also the schedule in CB, tab 12).
Exhibit EB2 contains the following expert reports - tab 1: a Statement of Evidence by the applicants' Consultant Planner, Robert Chambers, dated September 2015; tab 2: an affidavit by Council's Consultant Planner, Gary Shiels, sworn 2 December 2015; and tab 3: a joint report by Chambers and Shiels, filed 23 March 2016. By arrangement, on 29 March, the solicitor for the Kinlochs provided to the Court a replacement appendix 8 to the joint report.
Also tendered by the applicants, from Council's website, was the Newcastle Heritage Inventory for the NEHCA, dated 23 September 2008 (Exhibit A1), and, by the Council, its Notice of Determination of DA 08/1160, granting consent, on conditions, for "a dwelling, garage and pool" at Lot 3211 DP722246, at 88 Scott Street, Newcastle, dated 10 December 2009 ("the 2009 consent" - Exhibit N1).
The subject site is referred to as 88 Scott Street, Newcastle in the 2009 consent as it formerly comprised part of a larger, L-shaped property, fronting both Bond and Scott Streets. The Council approved DA 08/1155 in 2009 which was for the subdivision of this larger property into four lots.
The Council also granted consent, on 16 July 2009, to DA 08/1157, which was for works on the applicants' property. These works "are generally complete, except for the front verandah, which ... will form part of ... the principal area of private open space at the front of the property ... under the DCP" (Tp33, LL1 - 5).
The 2009 consent, like the subject consent, was also subject to NSW Heritage Council requirements.
It should also be noted that the agreed chronology refers to several other DAs relevant to the two subject properties made between 7 August 2008 and the lodgement of the subject DA on 25 March 2014.
The heritage document in Exhibit A1 describes the NEHCA as "of high regional significance".
Its "Statement of Significance" (p1) records: 1. the discovery, during excavation of what is now Enterprise Park, of "archaeological evidence of pre-European Aboriginal occupation ..."; 2. "Since its European history began the area has been shaped by industrial, penal and residential activities including being the second penal settlement on the mainland after Sydney (from 1801) ..."; and 3. "The residential area is significant for its consistent streetscapes of terrace housing dating from the mid-19th through to early 20th centuries and its housing for workers."
In its section on "Physical Descriptions" (pp2 - 3), the exhibit notes: The landform of Newcastle East is distinctive and provides a historic setting for the modern port of Newcastle. There are iconic sites including Nobbys Lighthouse & headland and its convict built breakwater, the stone boat harbour, Flagstaff Hill (now known as Fort Scratchley), the Convict Lumber yard and Stockade, the Customs house, Pacific Park, the foreshore reserve.
Particular features are depicted in colour photoplates. That on p13 shows Customs House, and that on p15 shows a different view of Customs House, featuring also the "Convict Lumber Yard".

The Planning Documents

The "particular aims" of the Newcastle Local Environmental Plan 2012 ("the LEP" - Exhibit SCB, tab 7) are set out in cl 1.2: (a) to respect, protect and complement the natural and cultural heritage, the identity and image, and the sense of place of the City of Newcastle, (b) to conserve and manage the natural and built resources of the City of Newcastle for present and future generations, and to apply the principles of ecologically sustainable development in the City of Newcastle, (c) to contribute to the economic well being of the community in a socially and environmentally responsible manner and to strengthen the regional position of the Newcastle city centre as a multi-functional and innovative centre that encourages employment and economic growth, (d) to facilitate a diverse and compatible mix of land uses in and adjacent to the urban centres of the City of Newcastle, to support increased patronage of public transport and help reduce travel demand and private motor vehicle dependency, (e) to encourage a diversity of housing types in locations that improve access to employment opportunities, public transport, community facilities and services, retail and commercial services, (f) to facilitate the development of building design excellence appropriate to a regional city.
The objectives of "Zone R3 Medium Density Residential" under that LEP are: • To provide for the housing needs of the community within a medium density residential environment. • To provide a variety of housing types within a medium density residential environment. • To enable other land uses that provide facilities or services to meet the day to day needs of residents. • To allow some diversity of activities and densities if: (i) the scale and height of proposed buildings is compatible with the character of the locality, and (ii) there will be no significant adverse impact on the amenity of any existing nearby development. • To encourage increased population levels in locations that will support the commercial viability of centres provided that the associated new development: (i) has regard to the desired future character of residential streets, and (ii) does not significantly detract from the amenity of any existing nearby development.
The key section of the DCP is s 3.02 "Single Dwellings" (Exhibit EB1, tab 1), which "applies to all land within which single dwellings are permissible with consent under the [LEP]".
As the DCP stood from 30 July 2012, its aims were (fol 3): 1. To encourage development that complements and enhances the built environment and has minimal impact upon the existing amenity. 2. To reduce the consumption of land for residential purposes. 3. To encourage innovation and diversification in site layout and building design. 4. To ensure dwellings are generally compatible with the scale and bulk of existing and likely future residential development on adjacent lands. 5. To ensure dwellings provide their occupants with adequate levels of comfort, security and amenity. 6. To ensure new development is designed to take advantage of the positive attributes of the site; including, slope, aspect, trees, gardens and existing buildings. 7. To ensure landscaping is in scale of the building and complements features on the site and adjoining land. 8. To retain significant existing landscape where possible. 9. To ensure adequate solar access for dwellings.
The relevant revision of the DCP followed concerns (Exhibit EB1, tab 2, fol 43, par 4) that "Council's development controls may be adding complexity and cost to the provision of single dwellings. Industry consultation revealed that there was a desire for both (a) prescriptive standards that will allow a simple assessment, and (b) a flexible system that allows for merit assessments against defined performance outcomes".
Version 3, which commenced on 10 November 2014 ([7] above) provided (fol 19) that "any development application lodged but not determined prior to this section coming into effect will be determined taking into consideration the provisions of this section".
Its introductory provisions (fols 20 - 21) include: The format of the DCP is setup in such a way that each of the controls has an acceptable solution and performance criteria. Acceptable Solutions The acceptable solutions provide a certain outcome of achieving compliance with Council controls for this section. To achieve the acceptable solution the applicant must demonstrate that they have satisfied the required control/s within each section. Any variation from the acceptable solution will mean the application will be required to meet the performance criteria for that section and the application will become a performance based assessment. Performance Criteria The performance criteria permit applicants to be flexible and innovative in responding to the DCP requirements. Applications which meet the performance criteria are assessed on merit and it is the applicant's responsibility to demonstrate how the performance criteria have been met. Compliance with the performance criteria can be undertaken through the use of 3D montages, 3D models, constraints mapping and other forms of visual representation.
The applicant submits (Tp6, LL30 - 37): ... [F]undamental to our case is that the acceptable solution and the performance criteria are mutually exclusive considerations and a proposal can be in conflict with either the acceptable solutions or alternatively performance criteria. ... [S]atisfaction of the performance criteria doesn't erase any conflict with an acceptable solution, which gave rise to the need to consider the performance criteria, that's important to our case.
Council's position on the relationship between the solutions and the criteria is set out in the opening paragraph of its SOR (Exhibit EB1, tab 9, fol 142, par 1): Council's Single Dwelling (Section 3.02) Development Control Plan 2012 (DCP) permits an applicant to demonstrate compliance with the overall DCP objectives by addressing the relevant performance criteria. The DCP is considered to be a performance based guideline, and was created to permit flexibility and innovation in design that responds to the relevant DCP criteria. A proposal can still be considered compliant if it is seen to meet either form of criteria.
As I noted above ([14]), there are, in the present case, concerns about "side/rear setbacks and boundary walls", privacy, view sharing, and landscaping.
Section 3.02.04 deals with "Side/Rear Setbacks (building envelope)", and paragraph 1 (at fol 25) sets out the following performance criteria: 1. Development is of a bulk and scale that: (a) is consistent with and complements the built form prevailing in the street and local area; (b) does not create overbearing development for adjoining dwelling houses and their private open space; (c) does not impact on the amenity and privacy of residents in adjoining dwelling houses; (d) does not result in the loss of significant views or outlook of adjoining residents; (e) provides for natural light, sunlight and breezes.
It then outlines the acceptable solutions (fols 26 - 29). Given that the subject lot is more than 10m wide, and is 23.9m deep, the relevant control (fols 28 - 29) is: 1. The building is contained in the building envelope defined by: (a) 900mm setback from each boundary up to a height of 4.5m then in at an angle of 4:1 up to the maximum height which is specified in the Newcastle Local Environmental Plan 2012 (b) lots with a width of 10m to 12.5m can be built to one side boundary only. See Figure 4. 2. Where boundary walls are proposed each boundary wall is: (a) to be a maximum height of 3.3m or match an existing adjoining wall (whichever is greater) (b) to have a maximum length of 20m or 50% of the lot depth (whichever is the lesser) (c) be in accordance with the Building Code of Australia and maintenance free (e.g. face brick). See Figure 4. 3. Notwithstanding controls 1 and 2, buildings are not built to the boundary if: (a) the wall of the building on the adjoining lot is not of masonry construction and is within 900mm of the boundary or (b) the wall of the building on the adjoining lot has a window facing the boundary within 900mm of the boundary. Figure 4: The following building envelope applies to lots with a width measured at the building line of 10m or greater Note: side and rear setbacks do not apply to: (a) any aerial, antenna, awning, eave, flue, chimney, pipe, cooling or heating appliance, any rainwater tank greater than 1.8m in height or any other structure associated with the provision of a utility service, if it is located at least 450mm from the relevant boundary, and (b) any fence, fascia, gutter, downpipe, light fitting, electricity or gas meter, driveway, hard stand space, pathway or paving, if it is located within the required setback area to the relevant boundary. 4. The setback to the rear boundary is to be at least the following: (a) for any part of the building up to 4.5m in height - a 3m setback (b) for any part of the building with a height greater than 4.5m an 8m setback. See Figure 5. Figure 5: The rear setback for a lot with a width measured at the building line of 10m or greater
Section 3.02.06 deals with "Privacy" (see fols 32 and 34, and figures 8 and 9 on fol 33): Performance criteria 1. Dwellings have adequate privacy to areas of private open space and the windows of habitable rooms. 2. Dwellings do not unreasonably overlook living room windows or the private open space of neighbouring dwellings. Acceptable solutions Note: Designers should consider the following measures to address privacy issues: i) proper consideration of privacy outcomes at the site planning stage ii) screening, including lattice or mature planting iii) off set windows iv) innovative balcony design v) separation by distance vi) the slope of the site and adjoining land. Sloping sites may raise particular privacy issues and these should be addressed through design. 1. A minimum 9m separation is provided between the windows of habitable rooms of facing dwellings that abut a public or communal street. This distance is increased to 12m for windows above the ground floor. 2. Direct views between living area windows of adjacent dwellings are screened or obscured where: (a) ground floor windows are within an area described by taking a 9m radius from any part of the window of the adjacent dwelling. An area so defined is described as a 'privacy sensitive zone'. See Figure 8. (b) windows above ground floor are within a privacy sensitive zone described by a 12m radius. See Figure 8. 3. Direct views from living rooms into the principal area of private open space of other dwellings are screened or obscured within a privacy sensitive zone described by a 12m radius. See Figure 9. 4. Direct views from the principal area of private open space of dwellings into the living area windows and/or principal area of private open space of adjacent dwellings are screened or obscured within a privacy sensitive zone described by a 12m radius. See Figure 9. Note: Sloping sites may exacerbate privacy issues and this should be considered in the design of development 5. Direct views described in controls 2 and 3 may be obscured by one of the following measures: (a) 1.8m high solid fences and walls between ground floor level windows and adjoining open space where the slope is below 10% (b) screening that has a maximum area of 25% openings, is permanently fixed and is made of durable materials (c) screening to a height of at least 1.7m but not more than 2.2m, above the finished floor level of the balcony, deck, verandah, etc.
Section 3.02.07 deals with "Landscaped area" (fol 34) in these terms: Performance criteria 1. Improve the amenity of developments and neighbourhoods through the retention and/or planting of large and medium size trees. 2. Landscaping results in improved solar performance within the development. 3. Landscaped areas are of a usable size and proportion. Acceptable solutions 1. Development has a minimum landscaped area of: (a) if the lot has an area of less than 300m2 - 10% of the area of the lot, (b) if the lot has an area of more than 300m2 but less than 450m2 - 15% of the area of the lot, (c) if the lot has an area of more than 450m2 but less than 600m2 - 20% of the area of the lot, (d) if the lot has an area of more than 600m2 - 30% of the area of the lot. The landscaped area can include any private open space area (as required under Section 3.02.08) in excess of the principal area of private open space*, provided it satisfies other landscape requirements under the DCP. *Principal area of private open space for single dwellings- a 3m x 4m level area of private open space directly accessible from the main living area of the dwelling. 2. Landscaped areas have a minimum dimension of 1.5m. 3. A minimum 1.5m wide strip of landscaping is located along at least one boundary. 4. Dwellings have a setback of at least 3m from the base of the trunk of each protected tree.
Section 3.02.11 deals with "Development within Heritage Conservation Areas" (fol 36 - 37), and requires a Heritage Impact Statement or a Conservation Management Plan, so as to ensure minimum adverse impact on the Conservation Area, and meet the specific requirements of ss 5.05 and 5.07.
Section 3.02.12 deals with "View Sharing" (fol 38) in these terms: Performance criteria 1. Development is designed to allow view sharing with neighbouring properties. 2. Design plans identify existing views and demonstrate how view sharing is achieved. 3. Important public views and vistas are to be enhanced by the form and treatment of buildings including roof scapes. Acceptable solutions 1. The building height does not exceed 5m or if the building is over 5m adjoining properties do not have views or vistas to water, city skyline and iconic views obscured by the proposed development.

Assessment and Approval

The relevant DA and its associated Statement of Environmental Effects ("SEE" - Exhibit EB1, tab 10), which was prepared by Bourne Blue Architecture Pty Ltd, were processed by the Council over a lengthy period, and several assessment checklists etc. are in the material (tabs 10 and 11).
The SEE noted (fols 164 - 165) that the subject site is bounded to the east by the "heritage listed former Coutts Sailors' Home, which is currently undergoing renovation work (which will include the reinstatement of a double-storey verandah with cast iron columns fronting Bond Street), refer DA 08/1157)", to the west by Enterprise Park, and to the south by "90 Scott Street, a 2-storey heritage listed (Newcastle LEP) residence. Alterations and additions have been approved to this residence (DA 2012/872), including a garage with roof terrace adjacent to the common site boundary, and a two storey addition with steep roof directly to the rear of the existing residence".
The SEE addressed the DCP s 3.02 requirements (fols 166 - 171), paying some attention (e.g. at fols 167 and 198) to "the previously approved dwelling (DA 08/1160)". The Court does not need to reproduce all the analysis, but, unsurprisingly, the SEE asserts (fol 171) only "potential for some minor privacy conflicts", and relies (fol 172) on the expert advice the proponent received on heritage matters (fols 183 - 202). That heritage advice noted (fol 189) six grounds for regarding the "Convict Lumberyard site [history at fol 186], including the Stationmaster's residence and Paymaster's office" as being of "outstanding heritage significance".
In a letter to Mr Dart on 28 May 2014 (tab 12, fol 220), the Council indicated that, if approval were recommended by the NSW Heritage Office, the application "would require to be sent to the [DAC] prior to any determination".
In an email on 25 June 2014 (tab 13, fol 222), which went, inter alia, to Ms Dart, the Heritage Council, and David Lamb, the proponent's architect noted that the SEE had "explained the areas of conflict", and that "the new design" had moved the areas of conflict in "the previously approved design ... further away from the Coutts Sailor's home".
On 15 August 2014 and 7 January 2015 (tabs 14 and 17), NSW Heritage Branch confirmed that no privacy screening was to be permitted on the terrace.
On 15 January 2015 (Exhibit EB1, tab 19, fols 243 - 242), Lamb sought, from Council's Building Assessment Team Coordinator, Brad McCarron, clarification of whether, because of building envelope and rear boundary departures, the application "would require referral to either DAP or DAC for determination". If referred to the DAC, Diane Kinloch's request for "public voice" needed to be considered. Lamb also noted that there may be "overlooking issues" when the balcony is constructed at No 16, and the privacy screening issue "would require re-referral to the Heritage Council".
McCarron raised the subject DA as a "general business item" at a DAP meeting on 21 January (minute at fol 247). The DAP "considered the building envelope departures to be of a minor nature [which] could be determined by the DAP", and considered it prudent to "go back to the Heritage Office to clarify privacy screen and sun blind conditions prior to reporting the application". He then so advised Lamb later that day (tab 19, fol 243), but his email (fol 243) went further, viz: David, I raised this DA as a general business item at today's DAP meeting. • Envelope Departures were discussed and it is confirmed that they can be dealt with by way of a report to DAP. • As the proposal is not being reported to Council, PV will not be offered. We will review the issue of can she are (sic) can't she participate if things change and the DA gets called in by Councillors. • As discussed, after reviewing copies of the floor plan documentation for the adjoining property at 16 Bond Street (DA 2008/1157), it looks like full length privacy screens each end of the proposed font (sic) elevated balcony of the Coutts building and were endorsed by NSW Heritage. Once these screens are erected, the privacy impacts from the proposed elevated entertaining deck at Number 18 should be adequately addressed given the side viewing angle from the elevated deck and the relative open yard area fronting Number 16. Can you please advise the objector and chase up with the applicant regarding the outstanding issues to address accordingly.
On 22 January 2015 (tabs 21 and 22), Lamb advised the proponent's architect and Diane Kinloch that the application would be reported to the DAP. He raised with the architect the Council's issue about 3.02.04 and 3.02.12, and then noted (fol 249) that: ... the approved plans for the adjoining development (DA 2008/1157) has proposed full length privacy screening to the western elevation of the front elevated balcony - plans which were endorsed by the NSW Heritage Council. In this regard, it is considered that privacy (Section 3.02.06) would be adequately addressed between the relevant open space areas, and privacy impacts from the proposed entertaining deck at Number 18 could be considered satisfactory
He provided to the architect the relevant 2008/1157 drawings the next day (fol 248).
The DAP met on 26 February 2015 to consider the officer's assessment (minutes at Exhibit EB1, tab 6). The referral to the DAP was recorded (fol 113) as being occasioned by: • Number of objections lodged, 15 initially and 2 after second notification period • Proposed variations to front setback Controls (Section 3.02.03 Newcastle DCP 2012) • Proposed variations to side/rear setback Controls (Section 3.02.04 Newcastle DCP 2012) • Proposed variations to privacy Controls (Section 3.02.06 Newcastle DCP 2012) • View sharing impacts (Section 3.02.12 Newcastle DCP 2012) • Development in the vicinity of a heritage item (Section 5.05.06 Newcastle DCP 2012) • Infill development in a Heritage Conservation Area (Section 5.07.07 Newcastle DCP 2012)
Lamb's 29-page assessment report to the DAP (Exhibit EB1, tab 5), for its meeting on 25 February 2015, included the following: 1. Item 3.02.04 "Building Envelope" (fols 63, and 64 - 65): The proposed development has building envelope encroachments through the eastern (approximately 3.1m), southern (approximately 3.1m) and western elevations (approximately 3.5m). The height of the western boundary wall is approximately 2.8m (height) by 18.7m (length), representing approximately 78% of the western elevation lot depth. The proposed development has an approximate 1.199m setback to the rear boundary. ... With reference to the existing heritage streetscape, it has been assessed the proposed departures to building envelope, boundary wall and rear boundary provisions will not detrimentally impact the streetscape or amenity of the area. Given the bulk, scale and massing of development in the immediate vicinity, it is considered the proposed development will not be out of character or context. It is considered proposed departures to building envelope, boundary wall and rear setback provisions will not adversely impact adjoining development with respect to solar access, view loss or privacy. In accordance with the additional information response from the applicant (City Plan Services, dated 4 February 2015), it has been assessed the proposed development will not adversely impact natural light, sunlight and breeze into adjoining development. The proposed departures to side/rear setbacks are considered satisfactory to the relevant performance criteria of Section 3.02. 1. Item 3.02.06 "Privacy" (fol 65): Control 4 requires views between the principal area of private open space of adjacent dwellings to be obscured or screened within a 12m radius (privacy sensitive zone). It is recognised that a retractable privacy screen has been included on the amended architecturals. In accordance with the modified approval issued by the Heritage Council of NSW (dated 7 January 2015), no privacy screens are to be installed on the balcony. In concurring with the applicant's report (City Plan Services, dated 4 February 2015), it is considered that the location of private open space to the adjoining residence (No. 16 Bond Street) may be located to the northern and eastern parts of the adjoining allotment. In the instance the verandah to No. 16 Bond Street is constructed (c.f. DA 2008/1157), it is recognised that a privacy screen is approved to the western elevation of the balcony and will suitably address side viewing angles from the elevated deck and relative open space area. In this regard, it is considered that the proposed development will not unreasonably overlook the private open space of adjoining neighbours. The proposed development is considered satisfactory to the relevant performance criteria of Section 3.02. 1. Item 3.02.12 "View Sharing" (fols 65 - 67): It is recognised that the proposed development will result in a loss of views to Coutt's Sailor's Home (No. 16 Bond Street) from public places, and views from the existing western windows of Coutt's Sailor's Home and the proposed balcony. ... [The report then (fols 66 - 67) assesses the proposal against the four planning principles in Tenacity Consulting Pty Ltd v Warringah Council [2004] NSWLEC 140] The proposed new dwelling generally complies with Council's planning controls, although as noted above, the applicant has applied for a variation to Council's building envelope provisions. It is considered that full compliance with the building envelope provisions in this instance would have a negligible impact on the quality of views for any impacted development as the proposed development complies with Council's LEP Development Standards relating to height and floor space ration. It has been assessed full compliance with the building envelope provisions would not improve the quality of views for the adjoining neighbour at No. 16 Bond Street. ... It has been assessed that the architect has proposed a design which demonstrates relative compliance with Council's planning controls. The location of views to be affected for No. 16 Bond Street is across side boundaries. Whilst there will be impact on the adjoining neighbour, and views to the adjoining heritage item will be impacted, the proposed development is considered reasonable having regard for established principles for assessing view impacts and the provisions of Section 3.02.12 of the DCP. ... 1. "The proposed development is considered satisfactory in accordance with the relevant aims and objectives of Section 3.02" (fol 67). 2. Item 3.2.2 "Heritage Issues" (fols 70 - 73): The proposed development was referred to the Heritage Council of NSW as nominated integrated development pursuant to Clause 91 of the EP&A Act 1979. The proposed development has been supported with Genera! Terms of Approval (ref 14/IDA/029, dated 15 August 2014 and modification dated 7 January 2015). ... the proposed development (infill single dwelling) is considered satisfactory having regard to the relevant provisions of Sections 5.05 (Heritage Items) and 5.07 (Heritage Conservation Areas): • ... it is not unreasonable for the applicant to propose infill development on this allotment. • With respect to the approved dwelling, it has been assessed the proposed development will not further detrimentally impact public infrastructure (Section 5.05.04). • Whilst a departure to building envelope has been proposed to the provisions of Section 3.02, the infill development has been assessed as suitable in the context of adjoining heritage items, given its relative compliance with elements including proportion, setbacks, materials and details. Given the massing and form of heritage buildings in the immediate vicinity, the departure to building envelope provisions is considered suitable in this context in accordance with the relevant performance criteria of this section. It has been assessed the proposed development is setback further from the western boundary of No. 16 Bond Street than the approved dwelling, which contributes to an appropriate curtilage around the adjoining heritage item. Whilst some views to the adjoining heritage item (Coutt's Sailors Home - No. 16 Bond Street) will be lost to and from public spaces, retention of views and lines of sight to the heritage item will remain with the proposed development. ... • The proposed development's materials, detail and articulation is considered compatible in the context of the Newcastle East Heritage Conservation Area. It is considered that elements including proposed cladding and fenestration have been designed sympathetically to the principles of infill development in a heritage setting ... [T]he proposed development is similar to the approved dwelling with regard to its proposed materials, details and articulation. ... • With respect to the approved dwelling, proposed vehicular accommodation is considered satisfactory. While not demonstrating compliance with the relevant controls, the proposed development will minimise the intervention of the new garage, maintain the relationship of the building to the street, maintain appropriate setbacks to vehicular accommodation and has regard for the historical character of the conservation area ... • It is considered the proposed development has been designed sympathetically with respect to adjoining neighbouring sites, the character of the area and is considered to be complimentary to the amenity of the area. ... It is considered the proposed development provides an appropriate response to site, and that the design is suitably differentiated from adjoining contributory development. ... It is considered the proposed development is satisfactory in accordance with Council's relevant heritage provisions - the proposed development has been assessed to comply with the relevant aims and objectives of Section 5.05 and Section 5.07. With integrated approval being granted from the Heritage Council of NSW, appropriate conditions will be included in the development consent in this regard. 1. Item 3.2.3 "Privacy, Views, Overshadowing" (fol 73): The adjoining properties are not adversely impacted by the proposal. Overshadowing The proposal does not have any adverse overshadowing impacts on adjoining properties. It is considered this development will not adversely impact views or view corridors on or through the site. ... 1. Item 3.2.6 "Landscaping" (s 79C(1)(b)) and s 3.02.07 (fol 74): Landscaping is deemed satisfactory in accordance with the relevant aims and objectives of the DCP. Comments 10% landscaping has been achieved to this site. Landscaping is considered satisfactory to the relevant performance criteria of Section 3.02.07. 1. Item 5.1 "Concluding Comments" (fol 80): The proposed development has been assessed to comply with relevant statutory and non-statutory provision. Where variations have been proposed, appropriate justification has been provided. It has been assessed that the development will not cause undue impact on the streetscape, or amenity in the area, or on the natural environment. Based on the merits of the application, this development can be granted approval subject to conditions in the Development Consent.
Council's SOR (Exhibit EB1, tab 9) is very detailed, and I will not set out all of it here. Much of it has been summarised above and elsewhere. The role of the DAP is described (par 6, fol 142) as follows: The role of the DAP is outlined in the Instrument of Delegation, as per Council [DAC] meeting dated 5 July 2011. The DAP does not have its own delegation, and was initially created to consider applications that had between 3 - 10 objections and to consider variations to Local Environment Plan (LEP) principal development standards. In accordance with an amended Instrument of Delegation, as per Council [DAC] meeting dated 24 September 2013, the number of objections that can be considered by the DAP has been increased to 25. Since its initial inception, the role of the DAP has also expanded to include peer review for officers assessments concerning some variations to DCP acceptable solutions, in order to promote consistency across the Development and Building Service Unit.
The SOR notes (pars 12 - 15, fols 147 - 148): 12. In reiterating Council's position, DA 2014/0296 was assessed on its merits and was considered to be compliant with the overall single dwelling objectives. The proposal was seen as compliant with Section 3.02 of the DCP. 13. With comparison to the higher order LEP principal development standards for site, the proposed development suitably complied: a) Clause 4.4 (Floor Space Ratio). The assessed FSR was 0.78:1. The permitted FSR for this allotment is 1.5:1. The proposed development represents approximately half of the allowable density. b) Clause 7.9 LEP (Building Height). The assessed building height was approximately 9.46m. The permitted building height for this allotment is 10m. The proposed development is approximately 0.54m lower than the permitted building height. 14. With reference to the context of the locality, the streetscape and the character of the area, the proposed variations to Council's relevant single dwelling provisions were considered to be minor and compliant with the relevant performance criteria. 15. It was assessed that the proposed development did not conflict with Council's adopted objectives and policies, and with the overall intent of Council instrument of delegation.
The DAP recommended (s 5.2, fol 109) that "the proposed development is satisfactory and therefore the application is recommended for ... Approval subject to conditions".
David Lamb formally adopted the DAP recommendation on 27 February 2015 (fol 109 again).

Grounds of Challenge

Kinlochs' grounds of challenge were detailed in their Amended Summons of 24 July 2015 as follows: David Lamb, as delegate of the Second Respondent, purported to issue the Consent under section 80 of the Environmental Planning and Assessment Act 1979. Particulars a) DA 2014/296 was referred to the Second Respondent's Development Assessment Panel at its meeting on 26 February 2015. b) Before the Development Assessment Panel was a report prepared by David Lamb which recommended approval of DA 2014/296 subject to conditions. c) The Development Assessment Panel resolved to support the recommendation for approval of DA 2014/296 subject to conditions. d) On 4 March 2015 David Lamb purported to grant the Consent by way of Notice of Determination. Delegation to determine DA 2014/296 and issue the Consent lay exclusively with the Second Respondent's Development Assessment Committee and not with David Lamb. Particulars On 24 September 2013, the Second Respondent gave delegated authority to the Development Applications Committee, a committee of the whole established by Council under section 260 of the Local Government (General) Regulation 2005, to determine development applications under the Environmental Planning and Assessment Act 1979 if, inter alia, the following criterion were met: Council Officers recommend approval of a development application which conflicts with Council's adopted objectives and policies except where the conflict is minor and strict compliance would be unreasonable or unnecessary. b) DA 2014/296 conflicted with the Second Respondent's Development Control Plan 2012 and the conflicts were not minor. Because the Consent to DA 2014/296 was purportedly issued by David Lamb as delegate of the Second Respondent and was not by the Second Respondent's Development Assessment Committee as delegate of the Second Respondent, the Consent is invalid.
The primary issue for determination by the Court is, thus, whether, in the circumstances, Lamb had the authority to determine the development application, or, conversely, whether, by virtue of cl 1.3 of the Instrument of Delegation, the relevant delegation was engaged, such that the DAC was required to assess and determine it.
As the applicants' submissions say (at pars 5 and 6): 5. Only one ground of challenge is brought in relation to the validity of the purported decision to grant the Consent. That ground of challenge relates to the power, or lack thereof, of the Council to grant the Consent under delegation purportedly held by Mr David Lamb, being an environmental planning officer in the employ of the Council. 6. In summary, the Applicants submit that only the Development Applications Committee (DAC), being a committee of the whole established by Council under cl 260 of the Local Government (General) Regulation 2005, had the delegated power to determine the development application (i.e. by either refusing consent or granting development consent under s 80(1) of the Environmental Planning and Assessment Act 1979). ...

The Instrument of Delegation

The Instrument of Delegation was adopted by Council on 24 September 2013. It delegates authority to the DAC, a committee of the whole established by the Council under s 260 of the Local Government (General) Regulation 2005, to determine development applications under the Environmental Planning and Assessment Act 1979 ("EPA Act") if several criteria are met. It reads as follows (Exhibit EB1, tab 3, fol 51): 1 The Development Applications Committee (DAC) ... be delegated authority to determine development applications under the Environmental Planning and Assessment Act 1979 (NSW) (subject to limitations in Schedule 1) if: 1.1 the development application has an estimated cost exceeding $10 million; 1.2 Council has received 25 or more individual written objections emanating from individual households, during the formal notification period, to the development application that Council has been unable to resolve in discussions with the objectors or that Council has been unable to address by appropriate conditions to the development application; 1.3 Council Officers recommend approval of a development application which conflicts with Council's adopted objectives and policies except where the conflict is minor and strict compliance would be unreasonable or unnecessary; or 1.4 two or more Councillors submit a request in writing that the development application be determined by the Development Applications Committee. …
The applicants' challenge focuses on cl 1.3.

Applicants' position

The applicants' position was effectively summarised by Mr Nash at the hearing as follows (Tp34, LL10 - 20): So as to avoid, as often occurs in cases of judicial review challenging development consents, we make the emphatic point that we do not seek any form of merits review of the council's decision. We merely ask the Court with respect to compare the proposal having regard to Mr Chambers' evidence, with the DCP controls and to decide whether or not the degree of conflict with the controls is more than minor. If you Honour is satisfied that the degree of conflict with the controls is minor, the applicant loses. If your Honour is satisfied that the degree of conflict with the DCP controls is not minor, the applicant in my respectful submission succeeds and the conflict is invalid as exceeding the jurisdiction of Mr Lamb as the delegated officer. It's the only ground of challenge that we bring.
The applicants' position is that the conflicts between the DA and Council's adopted objectives and policies, namely the "acceptable solutions" and associated "performance criteria" contained in the DCP, were not minor, and accordingly, they should have triggered delegation of the decision-making authority to the DAC.
On the basis that the "conflicts" are not "minor", the applicants submitted that, for the purposes of the Instrument of Delegation, they did not need to establish that strict compliance with the relevant controls would be "unreasonable or unnecessary".
However, if the Council intended to argue that the relevant conflicts were "minor", it must also satisfy the Court that strict compliance with the relevant controls would be "unreasonable or unnecessary" in order to assert that Mr Lamb had authority to grant the DC (citing Vines v Djordjevitch (1955) 91 CLR 512 [519]).

Council's position

The Council acknowledged that the proceedings turn on cl 1.3 of the Instrument of Delegation, which, Council submits, requires a two-part test - the delegation to the DAC is enlivened only where the conflict is "not minor" (the "first test"), and where strict compliance would be reasonable and necessary (the "second test"). In support of this, the Council submitted (par 27): The second respondent submits this construction of the Instrument in order to enliven the Delegation is readily available and ensures that the second part of the phrase, "and that strict compliance…" has work to do.
In respect of the "first test", the Council submitted that there is no conflict between the subject application and the Council's objectives and policies. In the alternative, it suggested that, if a conflict did arise, it could be characterised as "minor".
Regarding the "second test", the Council emphasised the relevance of the 2009 consent for the erection of a three storey dwelling on the land. It was submitted by the Council that that consent had been commenced, as evidenced by a Construction Certificate, which was issued on 17 November 2014, and also by construction of footings for the rear south boundary wall.
The Council submitted that, in order to determine whether strict compliance is "reasonable or necessary", a comparison is required between the subject DA and the 2009 consent, in order to assess whether the subject DA has greater or fewer impacts in respect of the surrounding development.

Clause 1.3

In order to determine whether or not the delegation contained in cl 1.3 was enlivened, it is necessary to construe its terms, and, in particular, to determine the meaning of the expression "except where the conflict [with Council's adopted objectives and policies] is minor and strict compliance would be unreasonable or unnecessary".
Council's approach can be gleaned from the following submissions: 28. The Instrument of Delegation is subordinate legislation and the relevant legal principles apply. 29. A beneficial and facultative approach to subordinate legislation is supported by the decisions of Lloyd J in Hallidays Point Developments Pty Ltd v Greater Taree City Council [2008] NSWLEC 106 and Currey v Hargraves (2007) 155 LGERA 91. 30. In Hallidays Point his Honour considered the interpretation of State Environmental Planning Policy (Seniors Living) 2004 and said at paragraph [28]: "I accept, of course, the remedial and beneficial nature of the Policy and the need to construe it as widely as the language will allow." 31. In Currey Lloyd J at paragraphs [20]-[21] adopted the following approach to the interpretation of a heritage incentives clause: "It is necessary, therefore, to construe the LEP with the flexible and practical approach to construction adopted by Lord Reid in Gill v Donald Humberstone & Co Ltd [1963] 1 WLR 929; [1963] All ER 180, an English building regulation case." I find it necessary to make some general observations about the interpretation of regulations of this kind. They are addressed to practical people skilled in the practical trade or industry… so they ought to be construed in light of practical considerations rather than by a meticulous comparison of the language of their various provisions such as might be appropriate in construing an act of Parliament. These comments of Lord Reid have been cited and adopted in interpreting and applying subordinate legislation, including planning instruments: Driscoll v J Scott Pty Ltd (1976) 50 ALJR 528 at 531; 36 LGRA 159 at 163-164; Hecar Investments No. 6 Pty Ltd v Lake Macquarie Municipal Council (1984) 53 LGRA 322 at 323; GTAA Pty Ltd v South Sydney City Council (2001) 117 LGERA 51 at 53; Port Stephens Council v Chan Industrial Pty Ltd (2005) 141 LGERA 226 at 236." 32. In respect of interpretation having regard to the nature of the instrument, Pearce and Geddes notes: "The adoption of an approach of this kind to regulations that are endeavouring to deal with day-to-day situations and which impose obligations on persons who are in no position to consult a lawyer a (sic) to the meaning of the legislation, seems eminently sensible." 33. The above principles support a construction that Clause 1.3 should be interpreted as widely as the language will allow.

Council's adopted objectives and policies

There was general agreement between the parties that the LEP and DCP together constitute Council's adopted "policies" for the purposes of the Instrument of Delegation.
Council referred to the insertion of s 74BA into the EPA Act, and the consequential amendment to s 79C(3A), and submitted (subs pars 14 - 16): 14. Schedule 1 [1]-[5] explains how that the legislature intends development control plans are to be taken into account during the development assessment process. It makes clear that the amendments are directed to giving DCPs less weight and significance than environmental planning instruments and confirms that they are applied flexibly to allow solutions as to how permissible development may be carried out. They are: "primarily to provide guidance (and not statutory requirements) with respect to achieving the aims of environmental planning instrument and the objectives of land zones and to facilitate permissible development under those instruments." 15. Therefore pursuant to s 74BA of the Act any enquiry into Council's adopted objectives and policies includes not simply consideration of the DCP but more relevantly the aims of the Newcastle Local Environmental Plan 2012 (the LEP), and in particular the objectives of the R3 Medium Density land zone. 16. Relevantly, a purpose of both the LEP and the DCP, is to facilitate permissible development.
The applicants' case is limited to the conflict between the subject consent and the provisions of the DCP, but the phrase "Council's adopted objectives and policies" requires the Court to consider the whole range of Council's adopted objectives and policies, not just the argued conflicts with the DCP. The applicants conceded that there is no conflict with the numeric FSR and height controls in the LEP.
An LEP is an environmental planning instrument which imposes statutory requirements, but the purpose and status of a DCP is detailed by s 74BA(1), which provides as follows: 74BA Purpose and status of development control plans (1) The principal purpose of a development control plan is to provide guidance on the following matters to the persons proposing to carry out development to which this Part applies and to the consent authority for any such development: (a) giving effect to the aims of any environmental planning instrument that applies to the development, (b) facilitating development that is permissible under any such instrument, (c) achieving the objectives of land zones under any such instrument. The provisions of a development control plan made for that purpose are not statutory requirements.
In the hierarchy of instruments and their objectives and policies, compliance with the LEP is necessary, whilst the provisions of the DCP are guiding principles only.

"Conflict"

Both parties agree that the undefined term "conflict" must be given its ordinary meaning.
The Court of Appeal has described the Macquarie Dictionary as "the most authoritative Australian dictionary": House of Peace Pty Ltd & Anor v Bankstown City Council (2000) 48 NSWLR 498; 106 LGERA 440, at [33] (per Mason P, Stein and Giles JJA agreeing); and its sixth edition, defines "conflict" to mean: "to come into collision; clash, or be in opposition or at variance; disagree".
The applicant approached the identification of "conflict", in its written submissions, as follows: 21. The Applicant submits that a development proposal 'conflicts' with the DCP if the proposal varies from any applicable 'acceptable solutions' contained within the relevant DCP control, regardless of whether the proposal alternatively satisfies the performance criteria for that control. That is, there can be a departure (i.e. a conflict) with either the numeric acceptable solutions or the performance criteria, because they are mutually exclusive considerations. This is made clear by the introductory section of the DCP which explains how the DCP operates. 22. In summary, if a proposal does not meet (i.e. varies from or 'conflicts' with) an applicable acceptable solution within a DCP control (e.g. setbacks), the DCP provides that the proposal will be required to meet the performance criteria relevant to that control in order to achieve development consent. Consideration of the performance criteria only arises if the proposal conflicts with the applicable acceptable solutions contained within the relevant DCP control. 23. Expressed another way, the consideration of 'conflict' for the purposes of the Instrument of Delegation does not involve a merit assessment of the relevant proposal. The consideration of the Instrument of Delegation is relevantly unrelated to the ultimate decision to grant or decline development consent following a detailed planning merit assessment of the proposal. A proposal may, for example, 'conflict' with particular DCP controls but still deserve development consent. 24. It follows that the Instrument of Delegation has been drafted and designed to enable a decision to be made as to the appropriate decision-maker for a development application independent of the planning merit assessment of the proposal. It was intended to be a relatively simple exercise in order to determine whether the particular delegation applied. Thus a 'conflict' exists if there is a departure from the numeric acceptable solution for any DCP control. A detailed analysis of the performance criteria for any DCP control involves a planning merit assessment independent of identifying any departure from the numeric acceptable solution for that control. …"
The applicant suggests (subs par 21) that conflict can be established if a development proposal varies from any applicable "acceptable solutions" contained within the relevant DCP control, regardless of whether the proposal alternatively satisfies the "performance criteria" for that control.
The Instrument of Delegation requires that the task of development assessment be delegated to the DAC in stated circumstances. The first element of cl 1.3 requires a decision-maker to identify whether Council Officers have recommended approval of a development application. The second element requires that decision-maker to identify if, prima facie, the development application conflicts with any of Council's adopted objectives or policies. The third element requires the decision maker to consider whether such conflicts can be classified as "minor" and, therefore, whether "strict compliance would be unreasonable or unnecessary".
The Council's posited approach involved separating the two components of that third element, requiring consideration of whether any respective conflicts were "minor", and separately whether "strict compliance would be unreasonable or unnecessary". The Council's written submissions (at pars 26 - 27) propound the following approach: 26. The phrase has two parts. For the delegation to be engaged the first part requires the conflict (with Council's adopted objectives and policies) be more than "minor", and the second part, that strict compliance (with Council's adopted objectives and policies) would be reasonable and necessary. 27. The second respondent submits this construction of the Instrument in order to enliven the Delegation is readily available and ensures that the second part of the phrase, "and that strict compliance…" has work to do.
In my view, cl 1.3 requires a global consideration of "conflict", in the sense of all conflicts with the controls in both the LEP and the DCP, those being the documents properly considered to embody "Council's adopted objectives and policies".
I, therefore, respectfully agree with the applicants' submissions in reply (at pars 12 - 14): 12. It is submitted that the Council's approach to the interpretation and application of the Instrument of Delegation, as set out in its written submissions at paragraphs [26],[27] and [35] - [38] is, with respect, not correct. The Council's approach seeks to reverse the language in the Instrument of Delegation, and contends that the first test is whether the conflict with Council's objectives and policies is 'not minor', and if deemed 'not minor', the second test is whether strict compliance would be 'reasonable or necessary'. By reversing the language of the Instrument of Delegation, the Council falls into error. 13. The correct approach, rather, is set out in the Applicant's written submissions at paragraphs [21] - [26]. Critically, once it is accepted that a Council officer has recommended 'approval' of a proposal which 'conflicts' with the Council's policies and objectives in a more than minor way, the Instrument of Delegation mandates that the DAC assess and determine the development application. 14. Once it has been determined that a proposal 'conflicts' with the Council's policies and objectives in a more than minor way, it is unnecessary to also consider whether the strict compliance with relevant Council policies is 'unreasonable or unnecessary'. The requirement to consider whether strict compliance with relevant Council policies is 'unreasonable or unnecessary' only arises if it has been determined that the 'conflict' is 'minor', because the 'exception' is a composite statement. That is, only if the conflict is 'minor' is it necessary to determine whether strict compliance is 'unreasonable or unnecessary'. If so, the Instrument of Delegation is not engaged and the DAC is not required to assess and determine the development application. This approach logically and naturally follows and adheres to the language of the Instrument of Delegation, and is consistent with the case authorities and principles set out in the Council's written submissions at paragraphs [28] - [32].
The use of the word "and" in cl 1.3 is significant.
Although I agree generally with the Council's submissions in relation to the need to interpret subordinate legislation broadly, the employment of the conjunctive "and" requires that the expression "except where the conflict is minor and strict compliance would be unreasonable or unnecessary" be interpreted in a composite way, consistent with the approach put forward by the applicants.
This can be understood by further reference to the applicants' submissions in reply (at pars 15 - 16): 15. It can be tested in this way. To adopt the Council's approach, it is necessary to insert the word 'or' in place of the word 'and' (where the word 'and' appears between the words 'minor' and 'strict compliance' in the Instrument of Delegation). The Instrument of Delegation, however, does not use the word 'or'. Thus there are not '2 tests' (as contended in the Council's written submissions at paragraphs [35] - [38]). The Council's erroneous approach arises because it reverses the language of the Instrument of Delegation as described above, and the error is confirmed in the statement made in the Council's written submissions at paragraph [37]. 16. Once it has been determined that a 'conflict' with the Council's policies is not 'minor', the Instrument of Delegation has done its job - the development application must be assessed and determined by the DAC. The 'unreasonable or unnecessary' test only applies where the relevant conflict is 'minor'.
In my view, it would create an unreasonable outcome, if an application were not to proceed to the DAC simply on the basis it may satisfy only one, but not both, of the two tests suggested by the Council.

Were the conflicts minor?

There was agreement between the parties that the term "minor" should be given its ordinary meaning. The Macquarie Dictionary (sixth edition) defines "minor" to mean: lesser, as in size, extent, or importance, or being the lesser of two.
Having regard to what characterises "Council's adopted objectives and policies", I respectfully agree with the Council's contention (subs par 39): 39. Relevant to the first test is Council's objectives and policies. Those objectives and policies are not limited to DCP 2012 as contended at paragraph 12 of the POC, but, pursuant to s74BA of the Environmental Planning and Assessment Act 1979, include consideration of the Newcastle Local Environmental Plan 2012 (the LEP), achieving the objectives of the R3 Medium Density land zone and facilitating permissible development under those instruments.
The applicants acknowledged in their submissions in reply (at par 4) that their case was limited to conflict between the subject application and the provisions of the DCP, but my consideration cannot be so limited.
There are, in the present case, concerns about "side/rear setbacks and boundary walls, privacy, view sharing and landscaping".
In challenges such as the present, the Court is always wary of attempts to draw it into matters of merit, but I granted leave to both active parties to adduce planning evidence in the expectation that it would assist me in deciding if the test of "minor" is satisfied.
The approaches taken by the parties' respective expert planners reflected the different approaches taken by the parties. For the applicants, Robert Chambers opined that the conflicts between the subject application and the relevant controls, were not minor. In contrast, Council's Gary Shiels opined that whilst the DC shows a minor variation from the relevant DCP controls, the application generally is not in conflict with Council's objectives and policies. Mr Shiels further suggested that the DC represents an improved outcome when compared to the 2009 consent.
It is necessary for me to now turn to the particular conflicts identified by the applicants between the DA and the DCP controls, taking into account the evidence of the expert planners and Council's SOR.

Building envelope, including setbacks

The performance criteria and acceptable solutions pertaining to side/rear setbacks (building envelope) for "small lots with a width measured at the building line of less than 10.5m" are in the DCP at 3.02.04 ([39] above).
Mr Chambers, for the applicants, suggested that the variations to these setback "acceptable solutions" are not minor, being a 30.04 per cent variation on the ground floor rear setback, 85.02 per cent variation to the first floor rear setback, up to 0.7m or 41 per cent variation to the acceptable solution for side setbacks, and a 50 per cent variation in regard to the length of the boundary wall.
He further opined that the subject application does not satisfy the performance criteria because it impacts on the former Coutts Sailors' Home, an identified heritage item, more so than a complying development, and has impacts including loss of views, loss of solar access and light, and loss of amenity and privacy.
The Council's position on setbacks was given by Ms Pearman in her oral submissions (see Tp47).
The Council's SOR explicitly joins issue with the applicants' suggestion that the subject application did not meet the performance criteria relevant to building envelope provisions. The s 79C Report suggested that the proposed departures from provisions concerning building envelope, boundary wall and rear boundary would not detrimentally impact the streetscape or amenity of the area.
Further, given the bulk, scale and massing of development in the immediate vicinity, the development would not be out of character or context, and would not adversely impact adjoining development, in relation to solar access, view loss or privacy. The proposed departures in this area were considered satisfactory of the performance criteria.
The SOR also rejected the application by Mr Chambers of a "10 per cent rule", which he derived from circulars published by the Department of Planning. The SOR says 8. While the Department of Planning requirements for Development Applications with a greater than 10% variation from LEP development standards is fairly clear, the reference to 'minor' 'conflict' with 'adopted objectives and policies' in the DAC delegation is the relevant test for whether issues arising from the DCP are reported to Council. 9. It is considered that numeric DCP provisions do not always lend themselves to being interpreted on a percentage variation basis. It is also considered that DCP provisions, being of a lower order than LEP development standards, should be considered more broadly than LEP development standards with discretion being applied to suit the merits of each individual case.
I agree with Council's reasoning. The interpretation of variations on a strict percentage variation basis could often prove "unreasonable".
Nonetheless, the variations identified by the applicants suggest that conflicts with the respective DCP controls are more than "minor", and, in my view, they represent a significant departure from the acceptable solutions provided in the DCP.
As such the DA should have been delegated to the DAC on this basis.

Privacy

The performance criteria and acceptable solutions related to privacy are in the DCP at 3.02.06 ([41] above).
Mr Chambers suggested that a 77 per cent variation exists in regard to acceptable solution 4, where there is a direct view from the principal area of private open space into the living area windows and/or principal open space of No 16 within a distance of 2.7m.
He opined that this variation is not "minor", and that, as the proponent must demonstrate that the performance criteria are met, the absence of a privacy device between the private open spaces of Nos 16 and 18 Bond Street means the performance criteria are not met.
Council addressed the issue of privacy in its SOR (at 11(c)), noting that it had assessed that the proposed development suitably met the performance criteria contained in s 3.02.06
The SOR extracted relevant comments from the s 79C Report, which concurred with the proponent's report (City Plan Services, 4 February 2015), concluding that private open space may be located to the northern and eastern parts of the adjoining allotment at No 16 Bond Street.
Further, the s 79C Report suggested that DA 2008/1157, which approved the balcony to No 16 Bond Street, also approved a privacy screen to the western elevation of the balcony, which would suitably address side viewing angles from the elevated deck and related open space area.
On this basis, the s 79C Report concluded that the proposed development would not unreasonably overlook the private open space of adjoining neighbours, and satisfied the performance criteria of s 3.02.
The SOR also considered the modified approval issued by the Heritage Council of NSW (dated 7 January 2015), which confirmed that no privacy screening, such as the retractable screen included in the amended plans, was to be installed on the balcony of the subject property (see [50] above).
The final privacy point outlined in the SOR was that the primary area for private open space available to the adjoining property at No 16 Bond Street was situated in the front yard of that property and at street level. The approved DA 2008/1157 for that site did not include privacy measures to obscure any ground level principal area of private open space from vehicular and pedestrian traffic in Bond Street.
Ms Pearman submitted, orally (Tp47, LL34 - 49), that a 12m "privacy sensitive zone" setback should not be interpreted as requiring a 12m "setback" as such. She asserted that the 77 per cent noncompliance with the 12m setback provision was "only in respect of windows above the ground floor", not setbacks. In most cases, a privacy sensitive zone will require resolution by way of a privacy screen, but that option was not available in this case, due to the refusal by the Heritage Council.
The "trade-off" in this case, she suggested (Tp48, LL6 - 11), was "view screening privacy", and it was a relevant matter for the Council to consider the fact that the applicant desired a privacy screen, but also wanted to retain the view. It was appropriate, she submitted, that Council Officers "consider having no privacy screen in that location, [which] also allows a view through the approved development, ... keeping those views that could be retained from that front area". As privacy screening constituted an acceptable solution which was incapable of implementation, Ms Pearman (Tp48, LL12 - 27) submitted that, in view of Council's SOR, the performance criteria could be seen to have been met.
Evaluating the evidence of Mr Chambers against Council's SOR, I conclude that the likely effects of the subject application on privacy were not so significant that they could be characterised as more than "minor".

View sharing

The performance criteria and acceptable solutions in relation to view sharing are in s 3.02.12 of the DCP ([44] above).
Mr Chambers opines that there was a 100 per cent variation to the acceptable solution, as the building is over 5m high, and iconic views from the former Coutts Sailors' Home are totally obscured (emphasis his). Mr Chambers again opined that such a variation is not minor. He said (Exhibit EB2, tab 1, fol 20 - 21): The development does not satisfy these performance criteria because it does not allow view sharing with the neighbouring property of the Customs House or Enterprise Park (i.e. views over the common boundary between No's 16 and 18 Bond Street), does not demonstrate how view sharing is achieved and does not enhance the public view from the vicinity of Customs House and Enterprise Park towards the former Coutts Sailors' Home, each being a heritage item within the same Heritage Conservation Area.
The SOR claims that the proposed development suitably met the relevant performance criteria in s 3.02.12 related to view sharing, and referred to the principles laid down by Tenacity Consulting Pty Ltd v Warringah Council ("Tenacity") [2004] NSWLEC 140. The following observations made in that case are to be noted in this context: 27 … the protection of views across side boundaries is more difficult than the protection of views from front and rear boundaries. In addition, whether the view is enjoyed from a standing or sitting position may also be relevant. Sitting views are more difficult to protect than standing views. The expectation to retain side views and sitting views is often unrealistic … ... 29 … the question should be asked whether a more skilful design could provide the applicant with the same development potential and amenity and reduce the impact on the views of neighbours. If the answer to that question is no, then the view impact of a complying development would probably be considered acceptable and the view sharing reasonable.
The SOR also says that, given the relative compliance of the proposed development with Council's planning controls, the expectation that no side views would be affected from 16 Bond Street across 18 Bond Street was unrealistic. Full compliance with the relevant building envelope provisions would have a negligible impact on the quality of views for any impacted development, as the proposed development complies with the LEP Development Standards pertaining to height and FSR, and full compliance with building envelope provisions would not improve the quality of views for the adjoining residence at 16 Bond Street. The architect had proposed a design which demonstrated "relative compliance" with Council's planning controls.
Taking into account such relative compliance, and that view loss to 16 Bond Street would be across side boundaries, it was ultimately determined by the Council that the development was reasonable in terms of the established principles for assessing view impacts, and the provisions of s 3.02.12 of the DCP. It was also noted that a different design which was fully compliant with Council's controls would not necessarily ameliorate the concerns of the applicants.
The Tenacity principle, the general compliance of the subject application, and the concurrence of the Heritage Council, suggest that, ultimately, some view loss to the Coutts Sailors Home may be inevitable. Tenacity notes that the expectation to retain side views and sitting views may often be unrealistic.
Nonetheless, I consider that the view loss is more than "minor". The DAC may well have concluded that the view loss is acceptable, given the relevant controls and the confinements of the site, in the circumstances, but the significance of this view loss and its potential associated impacts, in my opinion, provides reasonable grounds for referral to the DAC.

Landscaped area

The performance criteria and acceptable solutions related to landscaped area are in the DCP at 3.02.07 ([42] above).
Mr Chambers's evidence was that the proposal has an 11 per cent variation from the requirement that 10 per cent of the lot be landscaped. On the applicants' calculation the total landscaped area is 23m2, which equates to 8.9 per cent of the lot being landscaped. Also, there was a 100 per cent variation from the requirement that there be a minimum 1.5m strip of landscaping along at least one boundary.
Again, Mr Chambers suggested that such variations are "not minor", and, so, irrespective of the performance criteria, they should trigger a referral to the DAC.
In respect of the proposed development's compliance with the performance criteria, Mr Chambers said (Exhibit EB2, tab 1, fol 21): In my opinion, the approved development does not satisfy these performance criteria because the proposed landscaped areas are not of a usable size and proportion [discuss]. Additionally, I make the following observations: - ● the Applicant calculated the "landscaped area" as 49.38m2, equating to 18% of site area, but acknowledged that this included soft landscaping in the rear setback which is partially below the Level 3 overhang "and so does not strictly comply with the DCP definition of "landscaped area"; ● the Applicant then calculated that excluding this area, the proposed "landscaped area" was 24.2m2 which is less than 10% of the site area; ● the assessment report nevertheless states that "10% landscaping has been achieved to this site"; and ● there is no approved landscape plan for the site, and in the absence of such a plan it is not possible to check the Applicant's calculation of either 24.2m2 or 49.38m2.
The SOR did not deal with the purported landscaping conflicts. However, in her oral submissions for the Council, Ms Pearman noted that the DA assessment report (Exhibit EB1, fol 74) suggested that landscaping was deemed satisfactory, in accordance with the relevant aims and objectives of the DCP (Tp50, LL11 - 13).
She further suggested that the development complied with the performance criteria, which required that "landscaped areas are of a useable size and proportion", and she contended that the 1.5m wide strip of landscaping, which the applicants suggested was absent from the subject application, was actually present along the western boundary of the subject application.
In reply (Tp63, L48 - p64, L2), the applicants contended that there is no landscape plan for the site, that the dimensions of the landscaping fail the control (being less than 1.5m), and that landscaping does not extend along the boundary of the property, constituting a substantial noncompliance.
Without encroaching into merits, I cannot evaluate the respective contentions of the parties regarding sufficiency of the landscaping provided in the DA. However, the performance criteria stipulate that landscaped areas are to be of a useable size and proportion. In the context of the respective confinements of the site, I accept the contention that the conflicts here are not more than minor.

Would strict compliance be unreasonable or unnecessary?

The terms of the Instrument of Delegation, on its face, actually require consideration of whether strict compliance (with Council's objectives and policies) would be "unreasonable or unnecessary", but Council argued that the "second test" was whether it would be "reasonable or necessary".
The Council and its planning expert, Gary Shiels, maintained that the 2009 DC, for the erection of a three storey dwelling on the subject site, is relevant to this "second test".
The Council contended that commencement had occurred ([72] above), and (par 41) that, in order to determine whether strict compliance is "reasonable or necessary", a comparison is required between the subject DA and the 2009 DC to assess whether the subject DA has greater or fewer impacts in respect of the surrounding development. Shiels argues that a reasonable approach to assessment of the subject application would be to consider the earlier approval for the site, which established a set of parameters for such assessment. He proposed (his affidavit pp4 - 5, par 19, and Exhibit EB2, tab 2, fol 169 ): In considering the earlier development consent with commencement, for the subject site, I would have compared the earlier approved drawings with the subject development application. I would have compared the building envelope, privacy and view sharing impacts of that earlier consent with the subject development application being assessed. I would also have considered the reduced excavation to protect buried heritage features on the site; the amended floor levels being similar to those of the Coutts building; the reduced scale of the roof which would sit below the Coutts building gutter line; and the increased visibility of the Coutts building from the street as a result of the increased setback of the ground floor level. In my opinion, the above parameters of that approval would be a matter for consideration in assessing the subject development application. I therefore conclude that the subject application is within the profile of the previously approved development consent (DA2008/1160) with commencement.
The applicants opined that the "unreasonable or unnecessary" test applies only where the relevant conflict is minor. They accepted that this test in the Instrument of Delegation potentially involves planning merit assessment considerations, and suggested (reply subs, at par 18) that, as the Council seeks to rely on the 'exception' in the Instrument of Delegation, in order to overcome its application in a way which requires that the DAC assess and determine the DA, it bears the onus of proving the facts necessary to establish the exception: Vines v Djordjevitch (1955) 91 CLR 512, at 519.
The applicants acknowledged that the only basis on which the Council argues that strict compliance with Council's policies is "unreasonable or unnecessary" is by comparison of the 2009 consent with the subject application. They reject that approach, submitting (reply subs, par 19): It is submitted that a comparison of the 2009 consent with the Consent the subject of these proceedings could not be relevant to the determination whether strict compliance with Council's policies is 'unreasonable or unnecessary'. Under s 79C of the EPA Act, such a comparison would be an irrelevant consideration in the assessment of a development proposal, because the obligation on a consent authority is to assess and determine the particular development proposal in respect of which development consent is sought (see Tuite v Wingecarribee Shire Council (No 2) [2008] NSWLEC 321 at paragraph [55]).
In oral submissions, Mr Nash, counsel for the applicant, contended (Tp64, LL22 - 27): … in relation to comparing the previous approval with the current proposal, in my respectful submission the Court would be breaking new ground legally to compare, either for the purposes of merit assessment or the delegation, any previous approval with the subject approval.
I respectfully agree with the applicants' submissions in this regard.
I do not believe that a previous consent for a site, having achieved commencement, albeit in only a minimal way, is a relevant consideration in a merits assessment. As was noted by the present Chief Judge, Preston J in Tuite v Wingecarribee Shire Council (No 2) ("Tuite"), cited by the applicants ([141] above) (at [55] - [56]), in the context of a Commissioner's assessment of a DA: 55 Thirdly, the obligation on the Commissioner was to determine the particular development application before the Court. The task involved assessing the impacts of the development proposed on the environment existing at the time of determination of the application. As noted, no work to reconstruct Governor's Road had been carried out pursuant to the 1995 consent. Hence, the vegetation in Governor's Road remained untouched. Consideration of the impact of the roadworks proposed in the current development application before the Court required the Commissioner to consider the existing vegetation in Governor's Road and the impacts that carrying out the roadworks would have on this existing vegetation. This task was in fact undertaken by the Commissioner. 56 With respect to the Commissioner, it was difficult to see how the Commissioner could have used the 1995 consent conditions, which had not been implemented, to set aside his findings as to the impact of the development proposed in the development application before the Court. The Commissioner, exercising the functions of the consent authority, found that the impacts of the proposed development are unacceptable and the development application should be refused. He could not come to a contrary conclusion because a previous development consent would, if implemented, lead to the same or similar impact. As Mahoney JA stated in BP Australia Ltd v Campbelltown City Council (1994) 83 LGERA 274 at 279: "Ordinarily, it would not be right for such a body [a consent authority] to conclude that the effect of the relevant considerations is that one thing should be done and yet, without more, to do another. The grant of a discretion is the grant of the authority to do what the authority sees as the discretionary considerations to warrant being done."
Whilst Tuite involved a prior DA that had not achieved commencement, I adopt his Honour's comments in relation to the need to assess the impacts of the proposed development on the environment existing at the time of the application, rather than the likely impacts of a previous development consent. The Council's proposed approach is, therefore, inappropriate to the assessment the subject of these proceedings.
Having accepted the applicants' submissions that the expression "except where the conflict is minor and strict compliance would be unreasonable or unnecessary" creates a composite test, and having rejected the approach advanced by the Council in regard to the "second test", the Council's argument in this regard must fail.

Conclusion

I have concluded that two of the asserted conflicts with the DCP controls should be considered to be more than "minor", such that the subject DA should have been delegated to the Council's DAC.
I am, therefore, disposed to make the declaration and restraining orders sought in the amended summons.

Division 3

However, the Court has a "duty" to consider making an order under Division 3 (especially s 25B) of the LEC Act, in view of the conclusion reached on the invalidity of the subject application.
The applicants contended that no order can or should be made under s 25B, having regard to the basis for my conclusion, and cited GPT RE Limited v Wollongong City Council [No 2] ("GPT Re") (2006) 151 LGERA 158; and Gee v Gosford City Council & Anor [2002] NSWLEC 204.
In GPT RE, Biscoe J expressed several cautions in relation to making orders under s 25B. Each case, including that one, turns on its own facts and circumstances, as illustrated by the leading cases to which his Honour referred. His Honour said: 43 Two questions then arise in relation to s 25B. Is there power to make a s 25B order in the circumstances of this case? If so, should the discretion to do so be exercised and by reference to what terms? 44 A "preliminary steps" limitation on the power was expressed in Glowpace Pty Ltd v South Sydney City Council (2000) 111 LGERA 84 by Pearlman CJ, who ... held at [30] that s 25B was limited by s 25A(2) to steps "preliminary" to the grant of a development consent, which embraced the first ground of invalidity but not the second. I observe that the first ground of invalidity concerned a procedural matter. ... 46 Glowpace was followed by Pain J in Centro Properties Ltd v Warringah Council [No 2] (2003) 132 LGERA 45 and Woolworths Limited v Wyong Shire Council [2005] NSWLEC 607. In Centro, Pain J held that a deliberation under s 79C of the EP&A Act is part of the decision whether or not to grant development consent under s 80 and not a step "preliminary" to it, with the consequence that a s 25B order could not be made where the ground of invalidity was failure to consider a matter under s 79C. ... 48 In ... Centro Properties Ltd v Hurstville City Council [2006] NSWLEC 78, Talbot J declared a development consent invalid as a consequence, inter alia, of a council's failure to consider a draft SEPP. Talbot J declined to accede to an application by the council for a s 25B order which would have involved the council considering the provisions of the draft SEPP. His Honour said: "This step necessitates a re-opening of the whole process. It is not the intention of s 25B to allow the consent authority to re-open the whole of its consideration ...". 49 In Association for Berowra Creek v Minister for Planning (2003) 124 LGERA 99, Lloyd J found that a development application was invalid ... The respondents in that case asked the Court to make a s 25B order suspending the operation of the development consent and allowing the Minister to consider whether to form the opinion that the alterations or additions proposed did not significantly increase the environmental impacts of the total development. The applicant submitted that s 25B was not available where the cause of invalidity was jurisdictional error. His Honour did not find it necessary to resolve the availability issue because he was not inclined to exercise the Court's discretion under s 25B as there did not appear to be any "terms compliance with which would validate the consent" which could be specified in the circumstances of the case. 50 A second view of the scope of the s 25B power has recently emerged in this Court. In Kindimindi Investments Pty Ltd v Lane Cove Council (2006) 143 LGERA 277 the council considered that a school drop-off facility was a necessary part of a development. Instead of imposing this as a condition of the development consent, the council entered into a deed with the developer for the provision of the facility. The Court of Appeal held that it was in error in failing to impose this requirement by way of a condition of consent. The Court of Appeal, by consent, remitted the matter to this Court to be dealt with under s 25B. On the remitter, Lloyd J in Kindimindi Investments Pty Ltd v Lane Cove Council [2006] NSWLEC 399 declined to follow Glowpace, reasoning that s 25A(1) should be given full impact as a source of power and that ss 25A and 25B are beneficial provisions which should be construed widely. ... 51 A third view of the scope of the s 25B power, which may be considered as a refinement of Glowpace, was advanced by the applicant in the present case. On this view, s 25B is directed to taking steps to substantially remedy a failure to take a procedural step required by an Act (or by the general law, such as procedural fairness). It is not, according to the applicant's submission, concerned with a substantively wrong exercise of power, such as failure to consider matters in s 79C of the EP&A Act, or absence of power on the part of the person purporting to grant a development consent, as exists in the present case. ... s 25B allows the Court to pause and allows steps to be taken that will bring about substantial compliance with the Act. ...
His Honour found it unnecessary to decide among the then competing views as to the scope of the power.
Assuming there is power in any particular case, the question then arises as to whether the judge should exercise the discretion.
Jagot J helpfully summarised the scheme in Mid Western Community Action Group Incorporated v Mid-Western Regional Council & Anor (No 2) ("Mid Western No.2") [2008] NSWLEC 143, (at [16]): It is apparent that the scheme commences with a single consent affected by some defect. Instead of declaring that consent invalid, it may be suspended on terms imposed by the Court. Once the terms have been satisfied the consent authority may decide whether: - (i) to revoke the suspended consent (s 103(2)), or (ii) any alteration to the consent is required having regard to the terms and matters arising in the course of complying with the terms (s 103(3)). If the consent authority does not revoke the consent or consider any alteration is required then the consent may become operative only by the making of orders and declaration under s 25C(1). Such a consent operates from the date of the original grant of consent unless the Court otherwise orders (s 104(1)). If the consent authority does not revoke the consent but does consider an alteration is required then the consent may be revoked and a new consent regranted in accordance with s 103(3). Such a regrant is protected from any requirement for preliminary steps to be taken other than steps required to comply with the terms of the orders under s 25B. The language of s 25B(1)(b) (which refers to validating the consent whether without alterations or on being regranted with alterations), the cumulative declarations and order in s 25C(2), and the provisions of s 104(2) disclose that a regranted consent takes effect as a consequence of the Court exercising its functions under s 25C(2). As Stockland submitted, the scheme treats suspended and regranted consents the same. Differences in descriptions apparent from comparing s 25C(1)(b) and s 25C(2)(b) and s 104(1) and s 104(2) are not material to this issue. It would be odd if a consent authority would be able to avoid the Court's supervisory role merely by making some alteration to the consent. Section 104(2)(b), moreover, is clear and must be taken to mean what it says. These considerations also confirm the difficulty with an alternative submission made on behalf of the Action Group that a declaration under s 25C(2)(a) (that the terms have been complied with) would be sufficient of itself to render the regranted consent operative.
I relied on Jagot J's analysis when considering making a s 25B order in Clark & Davis v Wollongong City Council & Others (No.2) ("Clark") [2008] NSWLEC 226.
Some key principles have been established. For example, the fact that a "serious" breach is proven does not render s 25B inappropriate, nor does the duty to consider it (s 25E) raise a presumption in favour of its use.
I reviewed in Clark some of the cases in this Court post-Kindimindi, and concluded (at [25] - [26]): 25 ... The Court should be cognisant of the risk that further complex litigation may flow if there remains any serious dispute or concern about that the adoption of the s.25B process. A judgment always has to be made, on the facts of the instant case, whether the making of a s.25B order is really the appropriate course. The discretion must be exercised with care. 26 One concludes from a consideration of these authorities that a s.25B order probably ought not be made where the whole of the merit assessment process underpinning the challenged consent, as distinct from one "discrete" component of it, which can be viewed in isolation, has clearly miscarried.
As in GPT Re (at [56]), and Clark (at [29]), I do not consider this an appropriate case for the exercise of the Division 3 discretion.
Accordingly, the declaration and restraining orders sought by the applicants should and will be made.

Costs

In the normal course, an order for costs in the successful applicants' favour should follow that "event", but I shall leave an opportunity for the question of costs to be argued.

Orders

Accordingly, I make the following orders: 1. I declare that the Development Consent issued to the First Respondent by the Second Respondent's Development Officer, purportedly under delegation from the Second Respondent in response to DA 2014/296 is invalid. 2. The Second Respondent is restrained from issuing an approval to build in relation to that Consent. 3. The First Respondent, including its servants, agents or employees, is restrained from relying on that Consent for any purpose. 4. The Second Respondent is ordered to restrain any person from carrying out activities relying on that Consent for any purpose. 5. The Council is ordered to pay the costs of the Applicants in respect of these proceedings, on a party-party basis, as agreed or assessed, according to law. 6. The Court Books, Evidence Books, and all exhibits may be returned. 7. Orders (5) and (6) are stayed for 14 days, after which they will take effect, unless within that period a Notice of Motion is filed by any party seeking a costs order different from, or in addition to, Order (5).

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: 25 August 2016

(2006) 151 LGERA 158

(2006) 143 LGERA 277

(2005) 141 LGERA 226

Kinloch v Newcastle City Council

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