Ku-ring-gai Council v De Stoop

The site 5The site that is the subject of the development application is located on the western side of the Pacific Highway at Wahroonga. It has an area of about 5,112 m 2 . There is a fall of about 11 m from the Pacific Highway frontage to the rear or western boundary of the site, the side boundaries of which have a length of 124 m on the north and 140 m on the south. Three of the four properties to the south have an allotment orientation that is perpendicular to that of the site. They have frontage to a residential street that intersects with the Pacific Highway. The site is described as being within a well vegetated area. 6The land adjoining the site to the north has been developed by the erection of six residential flat buildings, varying in height from three to five storeys and containing a total of 138 residential units. Development to the south of the site generally takes the form of single dwelling houses on "large allotments" with front and rear gardens. Opposite the site on the eastern side of the Pacific Highway are the grounds and buildings of a school.

Planning controls 7The local planning controls applicable to the site are those found in the Ku-ring-gai Planning Scheme Ordinance ( the KPSO ), an instrument taken to be an environmental planning instrument made under Pt 3 of the EPA Act. That part of the site upon which the heritage dwelling stands is zoned residential 2(c) while the second lot that constitutes the site is zoned residential 2(c2). In each zone, development for the purpose of a residential flat building is prohibited. This is to be contrasted with the residential 2(d3) zone, applicable to the land to the north of the site, on which residential flat buildings are a permissible form of development. 8Notwithstanding the provisions of the KPSO, the site was able to be developed for seniors housing by operation of the provisions of State Environmental Planning Policy (Seniors Living) 2004 ( the Seniors Living SEPP ), in the terms of that Policy as it applied at the time of lodgement of the development application with the Council. The operation of that Policy rendering residential flat development in the form of seniors housing permissible on the site with consent is not in contest. It is the manner in which the provisions of that Policy have been considered that lie at the heart of the Council's grounds of appeal. 9Part 4 of Ch 3 of the Seniors Living SEPP is headed "(d)evelopment standards to be complied with". The first provision in that Part is cl 38 which relevantly provides: " 38 Development standards - minimum sizes and building height (1) General A consent authority must not consent to a development application made pursuant to this Chapter unless the proposed development complies with the standards specified in this clause. ... (4) Height in zones where residential flat buildings are not permitted If the development is proposed in a residential zone where residential flat buildings are not permitted: (a) the height of all buildings in the proposed development must be 8 metres or less, and (b) a building that is adjacent to a boundary of the site (being the site, not only of that particular development, but also of any associated development to which this Policy applies) must be not more than 2 storeys in height, and (c) a building located in the rear 25% area of the site must not exceed 1 storey in height." 10Each of the particular standards identified in paragraphs (a), (b) and (c) of cl 38(4) are exceeded in the development proposal to which consent was granted. In order to address those exceedences and overcome the prohibition expressed in cl 38(1), Ms De Stoop lodged an objection to compliance with those standards pursuant to cl 6 of SEPP 1. The Council accepts that, properly addressed, the provisions of SEPP 1 are legally capable of overcoming the non-compliance with the standards imposed by cl 38 of the Seniors Living SEPP. 11The Commissioner sought to exercise the power to grant development consent to the present development application by applying the provisions of cl 7 of SEPP 1. That clause provides: " 7 Consent may be granted Where the consent authority is satisfied that the objection is well founded and is also of the opinion that granting of consent to that development application is consistent with the aims of this Policy as set out in clause 3, it may, with the concurrence of the Director, grant consent to that development application notwithstanding the development standard the subject of the objection referred to in clause 6." 12There are two matters to be noticed by reference to that provision. First, the aim or objective of SEPP 1, as expressed in cl 3, is to provide flexibility in the application of controls expressed through development standards where compliance in the particular case would "be unreasonable or unnecessary or tend to hinder the attainment of the objects specified in section 5(a)(i)(ii) of the Act." Second, as the determination was made by the Commissioner, exercising the jurisdiction of the Court, the concurrence of the Director was not required: s 39(6) of the Court Act.

Grounds of appeal 13The brief description I have given of the site, together with the recitation of key provisions of the critical planning instruments, permits the Council's grounds of appeal to be considered in context. As summarised in its written submissions, those grounds are: "(1) Having adopted the 'underlying objectives of the standard are nevertheless achieved' test for determining whether compliance with the requisite standard was unreasonable or unnecessary, the Commissioner failed to make any finding to that effect, or in the alternative, failed to give any, or any adequate reasons for that conclusion. (2) The Commissioner undertook a merit assessment of the whole development in substitution for the test of determining whether compliance with the requisite development standard was unreasonable or unnecessary having regard to the objectives of the standards. (3) The Commissioner failed to determine the underlying object of the development standard in clause 38(4)(c) of SEPP Seniors and therefore, did not, or could not, consider whether in the light of that object it was unreasonable or unnecessary to apply the development standard."

Relevant principles 14The requirements for upholding an objection under SEPP 1 are stated in cl 7, the provisions of which I have earlier recited. The manner in which the requirements of that clause are to be applied are well established. In Wehbe v Pittwater Council [2007] NSWLEC 827; (2007) 156 LGERA 446, Preston CJ summarised the authorities that addressed this topic. He held that in exercising the functions of the consent authority, the Court must be satisfied of three matters before an objection under SEPP 1 can be upheld. They were identified as - (i) the court must be satisfied that "the objection is well founded"; (ii) the court must be of the opinion that granting of consent is consistent with the aims of the policy as set out in cl 3; and (iii) the court must be satisfied that a consideration of matters in cl 8(a) and (b) of the Policy justifies the upholding of the objection. 15In seeking to sustain its grounds of appeal, the appellant focuses upon the second of these three matters. In terms, it does not seek to found its appeal upon the first and third of the matters that Preston CJ had identified. 16In short, while accepting that the objection was well founded, it was necessary for the Commissioner to be of the opinion that strict compliance with the standards, in this particular case, would be unnecessary, or alternatively, that compliance would tend to hinder the objects specified in s 5(a)(i) and (ii) of the EPA Act. Those objects are expressed as being: "(a) to encourage: (i) the proper management, development and conservation of natural and artificial resources, including agricultural land, natural areas, forests, minerals, water, cities, towns and villages for the purpose of promoting the social and economic welfare of the community and a better environment, (ii) the promotion and co-ordination of the orderly and economic use and development of land". 17There are a number of ways in which it may be established that compliance with a development standard is unreasonable or unnecessary. The commonly invoked way is to establish that compliance is unreasonable or unnecessary because the purpose of the development standard is achieved notwithstanding non-compliance with the terms of the standard as it is expressed in the planning instrument. It is this means of invoking the provisions of SEPP 1 that was addressed in argument before the Commissioner and the means adopted in her judgment for determining that the objection was well founded. 18The decision as to whether the purpose of the development standard is met is, as was submitted on behalf of Ms De Stoop, opinionistic, based upon factual evaluation. The need to consider "the particular case" (cl 3) requires as much.

The structure of the Commissioner's judgment 19Before turning to address the appellant's grounds of appeal, it is appropriate to make general observations as to the structure of the Commissioner's judgment. I do so because the grounds argued by the appellant required close examination and analysis of the reasons for judgment in an endeavour to sustain those grounds. The respondent submitted that in so doing the appellant was undertaking an impermissible fine toothcomb approach to the judgment ( Brimbella Pty Ltd v Mosman Municipal Council (1995) 79 LGERA 367 at 368; Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 271). 20At [7] of her judgment, the Commissioner summarised the issues before her as being: " ... whether the SEPP 1 objections to vary the standards contained in the Seniors Living SEPP should be allowed. This is with respect to the development standards of: 8 metres height; two storeys; and single storey for the rear 25% of the site. The other main issues are: the impacts on the heritage item; and the impacts on the adjoining properties ... ". She then identified as being of particular relevance for consideration the adjoining residential properties on the south and the units in the large residential flat development located to the north of the site. 21After referring to the provisions of cl 38(4) of the Seniors Living SEPP, the Commissioner acknowledged (at [18]) the exceedence of those standards in the development application before her and recorded that objections under SEPP 1 had been submitted "for a variation to these standards." 22Having addressed the planning evidence before her, the Commissioner then said (at [51]): "I will deal first with the SEPP 1 objections to vary the standards at clause 38 of the Seniors Living State Environmental Planning Policy as these are threshold questions ." (Emphasis added) From that paragraph through to [72], the Commissioner separately addressed each of the three development standards that were the subject of argument before her. 23She then said: "73. I accept the respondent's submission that an absence of environmental harm is not a reason to uphold a SEPP 1 objection. By the same token the degree or extent of variation does not dictate whether an objection should be allowed or not. SEPP 1 contains a number of provisions that must be considered in the assessment of objections for variations. I have also had regard to the authorities established in particular I refer to the judgment of the Chief Judge of this Court, his Honour Preston J, in Wehbe v Pittwater Council [2007] NSWLEC 827. 74. On the basis of the evidence to the Court I am satisfied that the SEPP 1 objections to vary the standards are well founded in the circumstances and the objections should be allowed. I must now consider the merits of the application as amended and in some respects this overlaps with the SEPP 1 assessment." The Commissioner then proceeds to address in detail the matters of "merit" that she had initially identified at [7] of her judgment. 24It is apparent from the structure of the judgment that the Commissioner understood the necessity to keep separate her consideration and determination of the objections made under SEPP 1 from the assessment of those matters that were seen to be "the merits" of the development application. In giving recognition to that separation, she clearly acknowledged that there was some "overlap" between the two streams of consideration necessary to determine the application before her. Given that the assessment of an objection under SEPP 1 requires an evaluative decision to be made, based on the evidence adduced, such acknowledgment by her is not surprising. In principle, it would not demonstrate legal error.

Ground 1: Absence of relevant findings or reasons for those findings 25In summary, this ground seeks to maintain that the Commissioner either made no finding on matters relevant to determination of the SEPP 1 objection or did not give adequate reasons for a finding that compliance with the development standards contained in cl 38(4)(a) and (c) was unreasonable or unnecessary. In its submissions, the appellant did not seek to maintain this ground as it related to cl 38(4)(b) (the two storey standard). 26When considering this and the other grounds of appeal, it must be remembered that the Commissioner had before her a written objection to compliance with the three development standards in question (Exhibit W). It was a document prepared by Mr Nash, the consultant planner retained by Ms De Stoop. It separately recorded the terms in which each of the relevant standards was framed in cl 38 of the Seniors Living SEPP, the purpose of each standard and the reasons why it was unreasonable or unnecessary to apply those standards in the particular case, having regard to that stated purpose. That evidence, together with the oral evidence given by Mr Nash, is summarised and quoted in the judgment, particularly at [48] and [49]. 27Provided this evidence did not erroneously state the question to be addressed, the Commissioner was entitled to accept and adopt it as reflecting her reasoning for reaching the conclusions that she did in respect of the development standards. No elaborate reasons were required ( Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 per Mahoney JA at 271 - 272 and McHugh JA at 280; Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 at 444). The findings of fact leading to the conclusion reached, even if seen to be perverse, are not open to correction on an appeal of the present kind ( Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 per Glass JA at 155 - 156).

The 8 metre height standard (cl 38(4)(a)) 28The appellant's submission acknowledges that the Commissioner identified an underlying purpose of the standard for the 8 metre height control. That purpose having been identified, the Council contends that the Commissioner failed to demonstrate by reference to the evidence how the purpose was fulfilled in the circumstances, leading to the conclusion that compliance with the standard was unreasonable or unnecessary. The Council submits that such reasoning as is exposed does not bear upon the identified underlying purpose. 29In order to sustain its argument, resort is necessary to be had to a very close analysis of the Commissioner's reasoning and manner of expression. In my opinion, a reasonable reading of the Commissioner's reasons directed to this particular control does not lead to the conclusion for which the appellant contends. 30The 8 m height standard was addressed by the Commissioner at some length. This is understandable as the particular height controls imposed by cl 38(4) were addressed by the Council itself in its statement of contentions under the rubric of "height" in which consideration of that topic was said to involve both "merit" consideration and also those arising under cl 38 (see [6] of the judgment). At [53] the Commissioner detailed the extent to which and locations of the site at which the 8 m height standard was exceeded. The variability so indicated occurred because of the slope of the site from the front to the rear boundary. She then identified the purpose of the standard as it had been articulated in the evidence before her by the consultant planners. 31At [56] she recorded the reasons given by Mr Nash as to why he considered that the 8 m height control would, in the circumstances, "hinder the attainment of the objects of the Act" specified in s 5(a)(i) and (ii) and then in [57] the reason why Mr Nash considered the standard to be unreasonable and unnecessary in the circumstances of the case. The evidence of Mr Ball, the consultant planner retained by the Council, in support of his opinion that the objection under SEPP 1 was not well founded, was summarised at [58] and [59]. 32The Commissioner formulated the development standard in her own terms. At [60], she said this: "60. In my assessment of clause 38(4)(a) of the 8 m standard I accept the underlying purpose of the standard is to provide a development that will be compatible with the adjoining residential area and not create adverse impacts having regard to the desirable elements of the location and character of the area. I also recognise that the extent of non-compliance is not the test and that a detailed assessment of the facts and the relationship of properties in their context is required with a focus on the underlying objective/purpose of the standard." This formulation of the underlying purpose generally reflects that stated by the planners although expresses it in different terms. Importantly, the appellant does not challenge the terms in which the Commissioner formulated this underlying purpose as being legally erroneous. 33As will be apparent, there were two elements of this underlying purpose. They were first, compatability with the adjoining residential area, and second, the absence of adverse impacts, having regard to the desirable elements of the location and character in the area. In addressing the first of those two elements the Commissioner said (at [61]): "The circumstances of this case are that the proposal incorporates the heritage item Rosemorran and utilises the 11 m fall in the land to accommodate a seniors living development that in my assessment will be compatible with the surrounding area. I am satisfied the proposal will not be anti-pathetic to the underlying purpose." 34In addressing the second element of the purpose that she had formulated, the Commissioner referred to the submissions made to her in that regard on behalf of the present appellant. The submission addressed this aspect of the purpose of the development standard by drawing upon the provisions of cl 31 of the Seniors Living SEPP. That clause addressed "neighbourhood amenity and streetscape" under Pt 3 of the instrument. The clause relevantly provided: " 31 Neighbourhood amenity and streetscape The proposed development should: (a) recognise the desired elements of the location's current character ... so that new buildings contribute to the quality and identity of the area, and (b) retain, complement and sensitively harmonise with any heritage conservation areas in the vicinity and any relevant heritage items that are identified in a local environmental plan, and (c) maintain reasonable neighbourhood amenity and appropriate residential character by: (i) providing buildings setbacks to reduce bulk and overshadowing, and (ii) using building form and siting that relates to the site's land form, and (iii) adopting building heights at the street frontage that are compatible in scale with adjacent development, and (iv) considering where buildings are located on the boundary, the impact of the boundary walls on neighbours, ... " 35After identifying the submission made by reference to cl 31, the Commissioner said (at [62]): "In this regard in my assessment 'the proposed development recognizes the desirable element of the location and the proposed development will contribute to the quality and identity of the area and harmonise sensitively with the heritage item and maintain a reasonable neighbourhood amenity'. In terms of sub clause (c) the siting of the building in my assessment relates to the sites land form and I have considered the location of the building on the boundary and I am satisfied the impacts are not unreasonable having regard to the separation distances and the fall of the land and the purpose is achieved." At [63], the Commissioner concluded that the objection framed under SEPP 1 to the 8 m height standard "is well founded." 36In themselves, these passages of the judgment identify the manner in which the Commissioner reasoned to the conclusion that the underlying object of the 8 m height standard had been satisfied. These reasons must be read fairly, considering the judgment as a whole and particularly in the context of those paragraphs of the judgment in which the Commissioner identified, in terms, that she was addressing the 8 m height standard ([53] - [63]). The evidence of Mr Nash addressing the development standard as recorded at [57] may be summarised as stating that: (i) the relative level of the roof height of the new building is below that of the roof height of the retained heritage dwelling; (ii) the new building is located at the rear of the site; (iii) the new building will not be visible from the highway frontage due to the 11m fall in the land; (iv) it will be a transition between the existing multi-storey residential flat buildings located to the north of the site and the dwelling houses located to its south; and (v) the new building will be separated from "the two-storey scale" of dwellings located some 40 m away and generally located to the south of the site. 37It must be remembered that the Commissioner had inspected the site ([34]) and had recorded the fact that the residential properties to the south were located on "large allotments" having "front and rear gardens (at [4])". I record this only for the purpose of indicating that the Commissioner is assumed to have understood the context in which the evidence given before her was to be understood. 38Clearly, the Commissioner had posed for herself the correct legal test when determining whether it was unreasonable or unnecessary to apply the relevant standard by reference to the requirements of cl 7 of SEPP 1. Having formulated the purpose of that standard (at [60]), in terms that are not challenged in this appeal, the manner of determining whether that purpose was satisfied in the development before her inevitably called for subjective judgment. In the context of the stated purpose, notions of "compatability", "adverse impacts", and "character of the area" demonstrate the need for evaluative judgements, about which there is legitimate scope for disagreement. But disagreement with the decision ultimately formed by reason of the evaluation made, does not allow challenge under s 56A(1) of the Court Act ( Azzopardi v Tasman UEB Industries Ltd ). 39The appellant submitted that error was demonstrated by the Commissioner's reference to retention of the heritage building in [61], that reference having no bearing upon the underlying objective or purpose identified in [55] [sic] of her judgment (appellant's submissions at [20]). The formulation of the underlying objective expressed at [55] was that of the planners who gave evidence: it was not that objective or purpose adopted, in terms, by the Commissioner. Moreover, reference to the heritage item did seem to me to have relevance, having regard to the underlying purpose formulated by the Commissioner. It was part of the "character" identified as an element of the purpose and potentially a relevant reference point for determining whether application of the 8 m height standard was unreasonable or unnecessary in the particular circumstances being considered. 40Moreover, the reasons stated by the Commissioner in [60] - [62], coupled with the evidence earlier recited in her judgment, indicate to me that on a fair reading of it, the Commissioner had both considered the question posed by the SEPP 1 objection and responded to it with reasons sufficient to explain her decision. In addressing the second aspect of the underlying purpose that had been identified, the Commissioner could not be criticised for considering the provisions of cl 31 of the Seniors Living SEPP in accordance with the submission on behalf of the appellant so to do. She has applied the language of the clause not only to address character but also reasonable neighbourhood amenity, two elements of the purpose of the standard that she had formulated.

One storey height for the rear 25% of the site (sub clause 38(4)(c) 41The Commissioner expressly addressed this standard at [69] - [72] of her judgment. However, as was the case in respect of the 8 m height standard, so in respect of this standard it is necessary to take account of the terms of the judgment beyond those particular paragraphs. Before turning to direct attention to them, it is necessary to notice two further matters. 42The hearing was apparently conducted in two tranches. After hearing evidence over several days, including evidence from experts, Ms De Stoop sought to amend her application. The hearing was adjourned to enable this to be done and the amendments publicly notified prior to resumption of the hearing (judgment at [41]). The description of the amendments made would imply that the amended development application sought to reduce the impact of the scheme first considered by the Commissioner and which had been criticised in the evidence heard prior to amendment (at [42]). 43While acknowledging an improvement, Mr Ball considered that the "bulk and scale" of the amended proposal remained excessive, essentially by reason of its failure to comply with the requirements of cl 34(4) of the Seniors Living SEPP [46]. The objection under SEPP 1 to compliance with the standard identified in that clause is the objection that was ultimately admitted as Exhibit W before the Commissioner. The terms of the amended objection lodged on behalf of Ms De Stoop were clearly considered by the Commissioner. The material attributed to Mr Nash at [71] of the judgment is extracted from pages 12 and 13 of Exhibit W which he had prepared. Moreover, the Commissioner records at [48] the evidence given before her by Mr Nash and directed to the development standard presently being considered. That evidence included a statement that: " ... there are no direct amenity impacts that is overlooking and overshadowing, on the properties to the south." 44The passage quoted from [48] of the judgment also records the opinion of Mr Nash as to the absence of "adverse amenity impacts arising from the height, bulk and massing of this building at the rear 25% of the site." 45The appellant submits that the Commissioner failed to identify the extent to which the proposed building failed to comply with this particular development standard. A fair reading of the judgment does not support that submission. At [43] the Commissioner identified the new building proposed to be constructed on the site as being: " ... part three and part four-storey residential building with a portion between grid lines 2 to 4 being 5-storeys for a length of approximately 12 metres at the rear of the site." This finding is illustrated in a document identified as Figure 3 which the Commissioner annexed to her judgment. 46As I have earlier recorded, the Commissioner acknowledged non-compliance with this development standard, referred to as an exceedence, at [18] of her judgment. Clearly, both the fact of exceedence and its extent was recorded by her. It is for this reason I conclude that the appellant's submission of a failure to identify the exceedence involves an unfair reading of the judgment in accordance with the principles discussed by Kirby J in Minister for Immigration and Ethnic Affairs v Wu Shan Liang at 291 . 47It is further submitted by the appellant that the Commissioner erred in law by failing to state the purpose of the single storey standard that she was addressing. It is certainly correct to observe that, unlike her finding at [60] as to the purpose of the 8 m height standard, the Commissioner did not articulate, in terms, the purpose of the single storey development standard. 48However, that acknowledgement does not conclude the matter. At [70] she referred to the evidence of Mr Ball, stating that the underlying objective of the standard was "to prohibit higher developments at the rear of development sites to minimise bulk, privacy and overshadowing impacts on adjoining land." Mr Ball is recorded as indicating that the "main question" as to the relevance of the standard was whether the objective applied "to all land adjoining the site or only to land of the subdivision pattern consistent with the configuration of a development site." 49No other purpose of the standard is recorded. At [71] the Commissioner recorded the evidence of Mr Nash detailing why, in his opinion, compliance with the standard was unreasonable and unnecessary, together with the reasons that he gave for expressing that opinion. She does not record in that paragraph any evidence given by Mr Nash opining as to the purpose or objective of the standard. 50Having referred to Mr Nash's evidence as I have last described it, the Commissioner proceeded at [72] to say: "72. In my assessment of the variation to the single storey standard I accept Mr Nash's evidence and I conclude that in the circumstances strict compliance in this particular case is unreasonable and unnecessary." 51In the context of what the Commissioner said at [71] and [72], it is tolerably clear that she accepted the purpose of the standard as being that stated by Mr Ball, but accepted the evidence of Mr Nash as to why, in the circumstances, it was unreasonable or unnecessary to require "strict compliance" with that standard. To read the reasons for judgment in this manner does, in my opinion, accord with the principles for appellate review that I have earlier discussed. It was not suggested by the appellant that Mr Ball's statement of the underlying purpose was legally erroneous. 52It is next submitted by the appellant that the Commissioner failed to identify the manner in which the purpose of the standard was met and further that, to the extent that reasons were stated, they did not relate to the underlying object identified by Mr Ball. The latter submission arises from that which was stated by the Commissioner in [72] following the first sentence of that paragraph which I have earlier quoted. The relevant reason that is criticised is stated by the Commissioner as follows: "It can be seen from the planning scheme zone extract at figure 2 and the aerial photo at figure 1 that the subject site of over 5000 square metres does not reflect the subdivision pattern of the surrounding blocks that have frontage to Gilda Avenue." 53The quoted passage reflects the Commissioner's response to that which Mr Ball had articulated as being the "main question" of relevance of the standard. It involved an address to his question as to the area of land to be considered for the purpose of applying the standard rather than determining whether the objective of the standard had been met. It reflects a reason or circumstance for concluding that the application of the standard was unreasonable or unnecessary. 54However, the principal reason for upholding the objection to the single storey standard follows from her acceptance of Mr Nash's evidence. That evidence, summarised in [71], discussed the relationship of the new building proposed for the development site with buildings on the adjoining site, including those that adjoin "at the rear 25% portion of the subject site". The evidence identified by the Commissioner concludes with the following sentence: "Given the physical separation between the proposed development and the dwellings there will be no adverse amenity impacts on these nominated dwellings arising from overlooking or overshadowing." 55That evidence was, so it seems to me, responsive to the underlying objective formulated by Mr Ball. He stated that objective as being "to minimise bulk, privacy and overshadowing impacts on adjoining land." The concluding sentence in [71] directly addresses the reason why overlooking (privacy) and overshadowing did not impact upon "adjoining land". 56Whether that conclusion was factually accurate is not reviewable under s 56(1) of the Court Act. Relevantly, it exposes a reason for the Commissioner's conclusion that the underlying purpose of the standard was met in the circumstances. The reasoning summarised in [71] and adopted by the Commissioner is a reiteration or restatement of the evidence, said to have been given by Mr Nash in cross examination, and reflected in [48] of the judgment. I have earlier quoted from the latter paragraph, including its reference to the "bulk and massing" of the proposed building at the rear 25% of the site. In my opinion, the statement by the Commissioner that she accepted Mr Nash's evidence would include acceptance of that referred to by her at [48], given that it was directed specifically to the single storey standard. 57For these reasons, the appellant's first ground of appeal is rejected. A fair reading of the Commissioner's judgment does indicate that in respect of both the 8 m height standard and the single storey standard for the rear 25% of the site area, she identified the purpose of the standard and provided reasons that were sufficient to demonstrate why the conclusion was reached that in the particular circumstances application of each standard was unreasonable or unnecessary. In concluding that the reasons stated by the Commissioner were "sufficient", I bear in mind the observation by Mahoney JA in Soulemezis v Dudley (Holdings) Pty Ltd where his Honour stated (at 273): "To require that a judge detail the way in which he has reasoned step by step to his conclusion is in my opinion, to mistake the nature of the reasoning process."

Ground 2: Merit assessment 58The essential argument of the appellant on this ground is that the Commissioner undertook an overall merit assessment of the development application rather than focus upon non-compliance with the development standards, the matter that she was required first to address before proceeding to consider the merits of the development application. In support of its submission, the appellant cites the oft-quoted authorities in this Court of Memel Holdings Pty Ltd v Pittwater Council [2000] NSWLEC 206; (2000) 110 LGERA 217 and Winten Property Group Limited v North Sydney Council [2001] NSWLEC 46; (2001) 130 LGERA 79. In order to address the appellant's submissions, it is necessary to consider separately each of the three development standards in question.

The 8 m height standard (sub clause 38(4)(a)) 59The submissions of the appellant in the context of this standard are closely related to those made in respect of appeal ground 1. What I have said by reference to the general structure of the judgment and my observations as to this development standard when addressing ground 1 are also apposite to consideration of this ground of appeal. 60As I have earlier concluded, the Commissioner did identify (at [60]) an underlying purpose for the 8 m height development standard in terms with which the appellant did not take issue. The two elements of that purpose have earlier been identified by me, as has the reasoning by which the Commissioner concluded that the purpose of the standard would be achieved. 61The appellant focuses upon the final sentence of [61] in which the Commissioner says: "I am satisfied the proposal will not be anti-pathetic to the underlying purpose". It submits that although reference is made to "underlying purpose", her reasoning discloses a merit assessment (submissions at [34]). The reference to the underlying purpose is that articulated in [60] which, as I have said, is not challenged as an appropriate statement of that purpose. Having regard to the terms in which the purpose is articulated, the substance of the appellant's submission is not understood. If reference to "the proposal" in the quoted sentence is the foundation for the submission then it seems to me that the argument is no further advanced. If the purpose of the standard is to achieve development having the elements described in [60], the reasoning expressed, addressing those elements necessarily involves consideration of them in the context of the development proposal as a whole. 62The gravamen of the appellant's submission seems to be that the Commissioner focused upon the entirety of the proposal rather than those parts of it manifesting non-compliance. In that regard, it will be remembered from my earlier discussion of the judgment that the height of various sections of the building were stated, identifying those parts that exceeded the 8 m height standard (at [53]). The fact that the Commissioner dissected the building in this fashion indicates to me that she clearly understood those parts of the building that breached the standard. The very reason for her consideration was the fact that those parts identified by her were in breach of that standard. 63As I have earlier sought to demonstrate, the manner in which the judgment was structured recognised the need to consider separately general merits from the particular breaches of development standards. In context, I read the Commissioner's decision dealing with the 8 m height standard as being directed to achievement of the standard's purpose by reference to the extent to which the proposed development exceeds the numerical limitation. For reasons earlier articulated, given the evaluative elements of the purpose, it was not legally impermissible for her to apply so-called "merit" considerations to her assessment, so long as they were confined to determination of the objection lodged under SEPP 1. I have earlier determined that she did adhere to that limitation. 64The appellant again submits the reasoning that disclosed how the underlying objectives were met is absent from the judgment. That is a matter that I have already addressed. However, it must be noted in this regard that in this section of the appellant's submissions, reference to the underlying objective seems to be that articulated by the planners and recorded at [55] of the judgment rather than the objective expressed by the Commissioner at [60]. That the latter statement of purpose was the appropriate statement of purpose to be considered was accepted by the appellant in oral argument (Tcpt 9: 33-40).

Two storey height standard (sub clause 38(4)(b)) 65The structure of the Commissioner's judgment has earlier been described. Consistently with that structure, the Commissioner separately considered the two storey standard imposed by cl 38(4)(b) of the Seniors Living SEPP. She did so under a heading referring to that standard at [64] to [68] of the judgment. This assessment was made in the context of her earlier description of the proposed development, including its amended form described at [43]. In the latter paragraph, she identified the number of storeys proposed for the building to be erected on the site. 66Having set out the provisions of cl 38(4)(b) at [64], the Commissioner summarised the evidence of both Mr Nash and Mr Ball as to the purpose of the development standard. Ultimately, she accepted the formulation of that purpose articulated by the appellant's consultant, Mr Ball. That purpose was said to be to control the "bulk and scale impacts to neighbours and impacts on adjoining land including overlooking and overshaodowing [sic]" at [66], both when viewed from the Pacific Highway frontage as well as from neighbouring properties. This formulation was accepted notwithstanding a note that appeared beneath paragraph (b) of sub clause (4) of cl 38 in the version of the Seniors Living SEPP published on the NSW legislation website which read: " Note . The purpose of this paragraph is to avoid an abrupt change in the scale of development in the streetscape." In formulating the purpose as extending beyond the streetscape, the Commissioner was no doubt giving effect to the provisions of cl 3(3) of the Seniors Living SEPP to the effect that "notes" did not form part of it. 67Having identified the underlying purpose, the Commissioner proceeded to address it, albeit succinctly. At [67] she addressed the "bulk and scale" element of the purpose by determining that there would be no impact when viewed from the Pacific Highway and only a limited capacity for the new building to be visible between dwellings in Gilda Avenue. It was in this manner that she addressed the streetscape aspects of the purpose. 68The Commissioner then turned to consider that part of the formulated "underlying purpose" that dealt with the "bulk and scale impacts and overshadowing and overlooking on neighbours" (at [68]). In addressing this aspect of the purpose she said: "The proposed building will be visible from the rear of the properties on the northern side of Gilda Avenue, however having regard to the topography and the level of the land at the rear of the Gilda Avenue properties in my assessment of all the evidence to the court the impacts are not unreasonable. Refer to Figure 5 for relevant sections." 69Figure 5 was attached to the judgment. It illustrates, in section, the proposed building, including the number of storeys, its relationship to the boundary of the site and its relationship to buildings, including their height, on adjoining land. The attachment of this Figure makes tolerably clear, to my mind, that the Commissioner fully appreciated the extent to which the two storey exceedence was manifest. It also served to illustrate the reasoning expressed in the preceding sentence of [68]. 70The focus of the appellant's challenge to this aspect of the judgment is that part of [68] earlier quoted where the Commissioner wrote: " ... in my assessment of all the evidence to the court the impacts are not unreasonable". However, to focus upon that part of the reasoning is, once again, to lose sight of the structure of the judgment as a whole, a matter to which I have referred more than once. It also ignores the fact that the purpose of the standard, the formulation of which is not challenged and accords with that articulated by the appellant's consultant, necessarily involves subjective assessment. Further, it cannot be ignored that the very same topics for subjective assessment are called up and addressed by the Commissioner when considering the 8 m height standard and also the single storey standard for the rear 25% site area. They are all addressed to the topic of "height" and the standards directed to it by cl 38(4) of the Seniors Living SEPP. 71Although the particular standard being considered must clearly be the focus, once elements of "bulk and scale" involving "impact upon amenity" by reason of "overlooking and overshadowing" require consideration, the factual reference is common to all even though the standards themselves are differently formulated. Having identified those points of factual reference, it should not be assumed that the Commissioner overlooked her findings in respect of them when addressing another standard directed to height when she came to address the purpose of the development standard presently under consideration. 72As was submitted on behalf of Ms De Stoop, having regard to the manner in which the purpose of the two storey standard was formulated, it became necessary to consider the relevant impact consequent upon the "bulk and scale" of the proposed development. Failure to have considered those matters may well, itself, have constituted an error of law. The Commissioner's statement at [68] that the impacts are not unreasonable is part of her reasoning process leading to the conclusion that strict compliance with the relevant standard is unreasonable and unnecessary. 73Finally, the context of the statement criticised by the appellant in [68] must be appreciated. The Commissioner was well-aware that the absence of environmental harm was, considered alone, not a basis upon which an objection under SEPP 1 should be upheld. She stated as much at [73]. A fair reading of the Commissioner's reasons when dealing with the standard in question does not demonstrate to me that she offended the very constraint that, in the context of considering an objection to a development standard, she had, in terms, acknowledged.

One storey height for the rear 25% area of the site (sub clause 38(4)(c) 74Once again, the appellant submits that in addressing the single storey standard, the Commissioner had focused upon the overall merit of the application rather than the standard itself. 75In addressing cl 38(4)(c) in the context of the first ground of appeal, I have identified the manner in which the Commissioner accepted the appellant's formulation of the purpose or objective of the standard. I have also identified the process by which she reasoned that the objective of the standard was satisfied by the manner in which it was addressed in the amended development application. For the reasons earlier expressed, I do not accept that the Commissioner's reasons demonstrated a failure to focus upon the standard as distinct from the merits of the application as a whole.

The stated principles are not offended 76At the outset of my consideration of this second ground of appeal, I identified in the submission of the appellant that the approach taken by the Commissioner in the present matter did not accord with the decisions of this Court in Memel Holdings Pty Ltd v Pittwater Council and Winten Property Group Limited v North Sydney Council . In Memel Holdings it is clear that the decision that was the subject of appeal pursuant to s 56A(1) of the Court Act was one in which the commissioner had, in effect, reversed the process of consideration when addressing an objection under SEPP 1. He had determined that the subdivision in question was appropriate because rigidly maintaining a minimum allotment size reflected only a "minor transgression" and was "generally consistent" with the commissioner's appreciation of the intentions of the objective (at [7]). In effect, he conflated the overall merit assessment and justified that approach by resort to SEPP 1. The error of this approach was identified by Talbot J at [13] where his Honour said: "The failure to identify the objectives of the development standard and then to consider whether, in the light of those objectives, it was unreasonable or unnecessary to apply the development standard in the subject case means that the Senior Commissioner fell into legal error on a matter which was fundamental to the ultimate decision." 77The decision of Lloyd J in Winten Property Group concerned an appeal from the same commissioner. The commissioner had determined a number of development applications, necessitating the consideration of objections lodged pursuant to cl 6 of SEPP 1. He had determined the development appeal before him by concluding that the development was seen "as entirely acceptable" and "should be supported by the relief available" under SEPP 1. In upholding the appeal from that decision, Lloyd J said (at [28]): "It seems to me that the senior commissioner has in the present case fallen into the same error which he committed in Memel Holdings. I refer to the senior commissioner's statement that 'the development is seen as entirely acceptable as amended and should be supported by the relief available under the State Environmental Planning Policy No. 1'. In this respect the senior commissioner has misdirected himself. His reference to 'the development' instead of to the non-compliance and to it being seen as entirely 'acceptable' without reference to the object or purpose of the standard or to the objects of the Act suggests that he has undertaken a merit assessment rather than assessment under SEPP No 1." 78A fair reading of the Commissioner's judgment in the present case reveals that she has not adopted the approach that manifested error by reference to the two passages cited from the respective judgments of Talbot J and Lloyd J. For reasons earlier explained, the Commissioner did separately identify the objectives of the relevant standard and then sought to reason why, in the circumstances, those objectives were met in respect of each of the standards. Her separation of issues directed to the standards from overall merit issues is not only a matter to which lip-service was paid in the structure of the judgment but is reflected in her reasons. 79In contradistinction to those passages upon which the Commissioner focused when determining the objection to the relevant development standards, more general consideration of "merit" issues, particularly addressed to built form and general impact of the proposed development in the locality, are addressed in some detail under the headings of "urban design" at [85] - [96] and "impact on adjoining properties" at [103] - [118]. The Commissioner did not conflate consideration of general merit issues with those issues necessary to be considered in addressing the objections under SEPP 1 in a manner that contravened the principles articulated in the cases upon which the appellant relied.

Ground 3: Object of the standard identified in cl 38(4)(c) 80The appellant contends that the Commissioner failed to determine the underlying object of the standard with which she was dealing. For reasons identified when dealing with this standard in the first ground of appeal, this ground of appeal is not upheld. The purpose of the standard was identified by adopting that purpose articulated by the appellant's consultant planner and the reasons for determining that the purpose so stated was satisfied were those reasons advanced in the evidence of the planner retained by Ms De Stoop.

Conclusion 81None of the grounds upon which the appellant has sought to challenge the decision of the Commissioner as manifesting an error of law are sustained. The basis upon which those grounds were sought to be sustained have involved an impermissible fine toothcomb approach to the judgment. A careful but appropriate analysis of the judgment does not demonstrate the legal errors of which complaint is made. The ultimate conclusion of the Commissioner to grant development consent is not relevant to the decision that I am called upon to make in an appeal limited by s 56A(1) of the Court Act.

Orders 82For the reasons stated, the orders that I make are:

1. Appeal dismissed.
2. Appellant to pay the respondent's costs of the appeal.
3. The exhibit (Exhibit A) may be returned.

I certify that this and the preceding pages are a true copy of the reasons for the judgment of the Honourable Justice Malcolm Craig ........................ Associate Date: 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: 16 September 2011