Luxe Manly Pty Limited v Northern Beaches Council - [2016] NSWLEC 156 - NSWLEC 2016 case summary — Zoe

NSWNSWLEC

Luxe Manly Pty Limited v Northern Beaches Council

[2016] NSWLEC 156

Land and Environment Court (NSW)|2016-08-15|Before: Sheahan J, Commission J

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At a glance

Source facts

Court

Land and Environment Court (NSW)

Decision date

2016-08-15

Before

Sheahan J, Commission J

Catchwords

[1992] HCA 10 Ali v Liverpool City Council [2009] NSWLEC 1327 Annetts v McCann (1990) 170 CLR 596
[1990] HCA 57 Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88
[1990] HCA 33 Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353
[2013] NSWCA 187 Design Power Associates Pty Ltd v Willoughby City Council (2005) 148 LGERA 233

Source

Original judgment source is linked above.

Catchwords

[1992] HCA 10 Ali v Liverpool City Council [2009] NSWLEC 1327 Annetts v McCann (1990) 170 CLR 596[1990] HCA 57 Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88[1990] HCA 33 Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353[2013] NSWCA 187 Design Power Associates Pty Ltd v Willoughby City Council (2005) 148 LGERA 233[1936] HCA 40 Hoy v Coffs Harbour City Council [2015] NSWLEC 128 ISPT Pty Ltd v Valuer General (2009) 165 LGERA 25[2009] NSWCA 31 Kioa v West (1985) 159 CLR 550[1985] HCA 81 Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390[2010] HCA 32 Lesnewski v Mosman Municipal Council (2005) 138 LGERA 207[2005] NSWCA 99 Marinkovic v Rockdale City Council (2007) 151 LGERA 385[2007] NSWLEC 71 Maxnox Pty Ltd v Hurstville City Council (2006) 145 LGERA 373[2006] NSWLEC 146 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24[1986] HCA 40 Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611[2010] HCA 16 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259[1996] HCA 6 Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611

Judgment (19 paragraphs)

[1]

Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40 Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21 Minister for Immigration, Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12; [2004] HCA 32 Mobil Oil Australia Pty Limited v Federal Commissioner of Taxation (1963) 113 CLR 475; [1963] HCA 41 O' Donnell v Sutherland Shire Council [2011] NSWLEC 184 Plaintiff S10/2011 v Minister for Immigration and Citizenship (2012) 246 CLR 636 Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6 Re Minister for Immigration and Multicultural Affairs; Ex parte MIAH (2001) 206 CLR 57 Re Minister for Multicultural Affairs; Ex parte S20 (2003) 198 ALR 59; [2003] HCA 30 Riordans Consulting Surveyors Pty Limited v Lismore City Council [2010] NSWLEC 1333 Riverstone Parade Pty Limited v Blacktown City Council [2015] NSWLEC 137 Segal & Anor v Waverley Council (2005) 64 NSWLR 177 [2005] NSWCA 310 Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208 Soulemezis v Dudley Holdings Pty Ltd (1987) 10 NSWLR 247 Southon & Ors v Gordon Plath on behalf of the Department of Environment and Climate Change (2010) 181 LGERA 352; [2010] NSWCCA 292 Stanton Dahl Architects v Penrith City Council [2010] NSWLEC 156 Stanton Dahl Architects v Penrith City Council [2009] NSWLEC 1204 State Super SAS Trustee Corporation v Cornes [2013] NSWCA 257 Sydney Water Corporation v Caruso and Ors (2009) 170 LGERA 298; [2009] NSWCA 391 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63 Terrace Tower Holdings Pty Ltd v Sutherland Shire Council (2003) 129 LGERA 195; [2003] NSWCA 289 The Benevolent Society v Waverley Council [2010] NSWLEC 1082 Tolson v Roads and Maritime Services [2014] NSWCA 161 Vanmeld Pty Ltd v Fairfield City Council & Anor (1999) 46 NSWLR 78; [1999] NSWCA 6 Warkworth Mining Limited v Bulga Milbrodale Progress Association Inc (2014) 86 NSWLR 527; [2014] NSWCA 105 WZARB v Minister for Immigration and Citizenship (2013) 302 ALR 657; [2013] FCA 523 Category: Principal judgment Parties: Luxe Manly Pty Limited (Applicant) Northern Beaches Council (Respondent) Representation: Counsel: Mr T To, barrister (Applicant) Mr N Eastman, barrister (Respondent)

[2]

Solicitors: Beatty Legal (Applicant) Pikes and Verekers Lawyers (Respondent) File Number(s): 2016/158082 Decision under appeal Court or tribunal: Land and Environment Court of New South Wales Jurisdiction: Class 1 Citation: [2016] NSWLEC 1167 Date of Decision: 06 May 2016 Before: Pearson C File Number(s): 10797 of 2015

[3]

Introduction

The applicant has appealed under s 56A of the Land and Environment Court Act 1979 ("the Court Act") against a decision of former Commissioner Pearson dismissing its Class 1 appeal against Council's refusal of its DA.
The focus of the appeal is the learned Commissioner's refusal to adopt what has become known as the "amber light" approach to merit development appeals. That approach is described in Council's submissions (par 13) as: in effect an adjournment after judgment is given, in order for amended plans to be prepared

[4]

The Class 1 Appeal

The subject development application ("DA") proposed the consolidation of three lots, the demolition of existing buildings, and the construction of two residential flat buildings, on a site at 138 - 139 North Steyne and 30 Bonner Avenue, Manly.
The proposal went through a number of iterations, in response to the various contentions and the evidence. In its "final" form, one of the two proposed buildings breached a 13 m height development standard prescribed under cl 4.3 of the Manly Local Environment Plan 2013 ("LEP"), and the applicant requested, under cl 4.6, a variation in the standard. That cl 4.6 request required the consideration of the consistency of the proposal with, in particular, three objectives of the relevant height control.
The Commissioner concluded that the requested cl 4.6 variation "was not well-founded". She dismissed the request, and the appeal, dealing (at [53]) with the applicant's "amber light" request (made by Mr To at Tp5.2.16, p55, LL1 - 7), in these terms: The applicant submitted that it would invite an amber light approach if that were the conclusion reached. Having regard to drawing DA08, any adjustment to the setback would have implications for the only source of light and outlook for bedroom 2; and such a fundamental re-design would not in my view be appropriately managed in that manner.
The applicant/appellant's primary complaint on the present appeal is that element of the learned Commissioner's decision.

[5]

The present appeal

The grounds of the present appeal assert, firstly, the lack of any (proper) evidentiary basis for the conclusion that the re-design at issue would be a "fundamental re-design"; secondly, that that error of law "infected and caused the Commissioner's exercise of discretion to not adopt an 'amber light' approach and permit an amendment ... to miscarry"; and, thirdly, that the Commissioner erred in law by failing to afford procedural fairness to the applicant by providing an opportunity to make submissions and/or lead evidence about the conclusion reached in paragraph [53] of the judgment".
The applicant/appellant says the "amber light" approach is a "policy", and it argues (subs 44 - 47) that the Court's development and adoption of that policy in appropriate cases gives rise to (a) a "legitimate expectation" of its being offered in this case, and (b) an obligation to afford the applicant procedural fairness if the Court proposed to depart from it. The applicant/appellant submits that this Court should apply the approach on appeal, pursuant to s 56A(2)(b).
The respondent Council submits (pars 48 - 50): 48. There is no error in principle, or anything unjust, about refusing an implicit request for an adjournment of the proceedings to provide for a future amendment of a development application. Whether or not that approach (described by the Court as an "amber light" approach) is appropriate will be a discretionary exercise. ... 49. Particularly given s 39 of the Court Act and ss 56 to 59 of the Civil Procedure Act 2005 applying to the Court when it is exercising the functions of the consent authority under Division 2 of Part 4 of the EP&A Act, there is absolutely no mandate, nor any statutory basis, for any application of an "amber light" approach. That is not to say that it cannot, as a matter of discretion, be done. In many circumstances it may be appropriate. It remains however a discretionary exercise, which, in reality, is either an explicit or implicit application for adjournment and amendment, in the event that the Court doesn't accept an applicant's first ambit or bid on its proposal. 50. The "amber light" approach is not a policy. It is something which has been accepted by the Court on a number of occasions as the applicant identifies.
The Council goes on to submit (at par 51): 51. ... a discretion was exercised that no adjournment and amendment would be allowed, particularly where that "application" is not formally made and is lightly put as a backup or secondary position to the applicant's primary case that its proposal was acceptable (which the Court of course did not accept).

[6]

The "Amber Light" approach

The applicant/appellant annexed to its submissions in chief lists of cases in which the so-called "amber light" approach was applied, with differing outcomes.
Moore J, when Senior Commissioner of the Court, was a regular exponent of the approach, but it was acknowledged from its early days, without criticism, by several judges.
What it entails is that the presiding judge or commissioner in a Class 1 merits development appeal delivers an interim judgment, which does not refuse the appeal outright, but indicates elements of the proposal before the Court which cause concern, but could be amended, such that the appeal could be upheld, and an approval granted.
In Maxnox Pty Ltd v Hurstville City Council ("Maxnox") (2006) 145 LGERA 373; [2006] NSWLEC 146, Biscoe J held (headnote (4) at p374) that "the Court had the power to deliver an interim judgment ... [but] must have regard to, among other things, the public interest". His Honour relied upon ss 38 and 39 of the Court Act, and said: 57 ... One of the objects of the EP&A Act, which governs development applications, is to encourage proper development for the "purpose of promoting the social and economic welfare of the community and a better environment" (EP&A Act, s 5). In my view, the legislature is less concerned in a merits review such as this with winners and losers, than with achieving the best community outcome with as little formality and technicality as possible. That may sometimes be achievable through an interim judgment, which gives an applicant the opportunity to amend its application before the Court pronounces its final judgment. ... 59 In my opinion, if the effect of a judgment in a case such as this is to leave open the possibility that a modified development, which the Court is likely to approve, will be significantly different from the proposal currently before the Court, it is inappropriate to deliver an interim judgment permitting the application to be amended. ...
In Marinkovic v Rockdale City Council ("Marinkovic") (2007) 151 LGERA 385; [2007] NSWLEC 71, plans had been amended following an interim oral judgment given by Tuor C in a Class 1 appeal, indicating certain concerns and identifying appropriate amendments. Preston Ch J, in his second judgment in the case, granted leave to make further amendments, and also adjudicated costs claims regarding them. His Honour said: 14 I will deal first with the applicant's motion for leave to amend the plans. I have determined that leave should be granted. Each of the amendments sought correspond with the matters identified by Commissioner Tuor in her interim judgment. They each result in a lessening of the environmental impact and result in a better community outcome than if the amendments were not made. It may be that there are certain other consequences of making those amendments which will need to be addressed at a further hearing. That can be done. But that does not detract from the worth of making the amendments that have been proposed. Ultimately, whether those amendments go far enough to make the development an acceptable development is a matter for Commissioner Tuor to determine on the resumption of the hearing. The amendments are also responsive to evidence given at the hearing, ... ... 19 The amendments now sought, and which I have held are proper to be made, are directly in response to the Commissioner's assessment and preliminary determination of the applicant's development application. ... 22 There should be a capacity for an applicant in class 1 proceedings before the Court to amend its application to respond to evidence, including evidence of a court appointed expert, and to address concerns of the court that is hearing the appeal. A respondent council should expect that an applicant might need to respond in this way. That is to say, such amendments should be seen to be part of the usual process of conducting a class 1 appeal in this Court. The mere making of an amendment is not by itself a circumstance that always makes it fair and reasonable to make an order for costs. 23 Of course, there must be some limit placed upon this capacity to respond to evidence and to the Court's concerns by means of an amendment. ... ... 26 ... there must be some capacity for an applicant to respond to the evidence and the concerns of the Court. This should be seen as part of the usual conduct of proceedings. Where making that amendment does lead to costs thrown away, then there may be some justification for making an order ...

[7]

Summary

Sometimes the bench takes the initiative, and sometimes a party requests the opportunity, usually as a backup position, secondary to its primary claim that its proposal should be accepted.
The respondent Council says, as I noted above ([9]), that the question of its appropriateness is a "discretionary exercise", for which there is "absolutely no mandate, nor any statutory basis".
The bench must be not persuaded to approve the application in its current form, but the suggested amendments must not significantly alter that proposal - they must be "minor and identifiable amendments, consistent with the application before the court; ... they must have merit warranting consideration and being of comparatively easy scope to address" (Ali, at [120]).
They may, but not necessarily should, render the proposal before the Court acceptable to the respondent consent authority (Benevolent, at [67], Ali, at [286]).
The present applicant claims that the Court has established the approach as its "clear policy", but the respondent does not concede it that status. It was, however, an approach taken with some consistency in the 2000s, and the Chief Judge was happy to say nine years ago that its consideration had evolved in the Court's management of Class 1, and may, in appropriate cases, be seen as "part of the usual conduct of those proceedings" (Marinkovic, at [26]).
As Pain J says, it is a merit matter (Riverstone, at [38]). Of itself, declining to do it is, therefore, not an error of law, but doing it on the Court's own motion could involve a denial of procedural fairness and constitute an error of law.

[8]

Grounds of appeal

The present appeal does not contest the Court's rejection of the proposal because it was not consistent with the relevant objectives. Rather, the applicant's primary complaint (subs par 3) concerns the Commissioner's refusal (at [53]) to adopt an "amber light" approach.
The three grounds of appeal assert two different errors of law infecting the Commissioner's decision - the making of findings with no evidentiary basis (Grounds 1 and 2); and a failure to afford procedural fairness to the applicant (Ground 3).

[9]

Grounds 1 and 2 - the making of findings with no evidentiary basis

Grounds 1 and 2 assert that: The Commissioner erred in law in concluding, inter alia, that a re-design of the uppermost floor of the Eastern building to increase the setback around the wall to bedroom 2 would be a "fundamental re-design" without having any, or any proper evidentiary basis for that conclusion: Judgment at [53]". The error of law described in Ground 1 infected, and caused the Commissioner's exercise of discretion, to not adopt an "amber light approach" and permit an amendment to increase the setback on the upper level of the Eastern building by 1 metre, to miscarry.
The learned Commissioner found (at [53] of her judgment): The applicant submitted that it would invite an amber light approach if that were the conclusion reached. Having regard to drawing DA08, any adjustment to the setback would have implications for the only source of light and outlook for bedroom 2; and such a fundamental re-design would not in my view be appropriately managed in that manner.

[10]

Applicant's submissions

The applicant submitted (par 34) that this finding was comprised of two findings: 34.1 The first finding was that any adjustment to the setback of the northern wall of bedroom 2 would have implications for the only source of light and outlook - a fair reading of [53] suggests the Commissioner was concerned that an increased setback would necessarily result in the loss of the window and, therefore, any light and outlook. 34.2 The second finding was that any re-design would be "fundamental".
The applicant submitted that neither of these findings was supported by any evidence, nor were they raised by the Commissioner with the parties.
Rather, it was submitted (par 36) that the affidavit of John Taylor affirmed 23 June 2016 demonstrates that these findings were manifestly wrong. There were various ways the increase in setback could have been achieved, whilst maintaining adequate light and outlook to bedroom 2.
Further, adjustment of the wall of one bedroom of a single apartment could not be reasonably described as "fundamental", in the context of the whole development and the evolution of the proposal up to that point in time. The proposed change was said to be a minor change to the design of that particular unit, rather than to the whole development.
On behalf of the applicant/appellant, Mr To further submitted, in respect of plan DA08, upon which the Commissioner relied as evidence supporting her conclusion, that (Tp35, LL16 - 25): … it's almost so trite that I don't need to say it, but I do need to say it - that nothing on that plan gives any indication of what an amendment to the setback might look like. It gives no indication of whether light and outlook will be maintained, changed or in any other way, no foundation at all for rationally saying any amendment must effectively cut one of those things out or be a fundamental redesign. And although it's said, with respect, by Mr Eastman, that there is material there, what hasn't been done is to articulate what the rational connection is between what's shown on DA08 and the conclusion.

[11]

Respondent's submissions

The respondent contends that the first ground involves no "question of law", and so does not fall within s 56A of the Court Act.
As submitted by the respondent (par 19), the distinction between matters of law and matters of fact is well established.
In Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139, the Court of Appeal considered what constitutes a question of law, as opposed to a question of fact. Glass JA, Samuels JA agreeing (Kirby P dissenting) held that an illogical, perverse or completely unreasonable finding of fact was nevertheless within the power of a decision maker to make and could not amount to an error of law. This principle has since been endorsed by the Court of Appeal in Soulemezis v Dudley Holdings Pty Ltd (1987) 10 NSWLR 247; Bowen-James v Delegate of the Director-General of the Department of Health (1992) 27 NSWLR 457; and Bruce v Cole (1998) 45 NSWLR 163.
This principle was further applied and extended by the Court of Appeal in Tolson v Roads and Maritime Services [2014] NSWCA 161. Basten JA held (with Beazley P and Preston Ch J of LEC agreeing), at [53]: … In order to demonstrate that they involved an erroneous decision on a question of law, the appellants were confronted with the authority of this Court that a finding of fact which could be characterised as "perverse" or "illogical" does not raise a point of law: Azzopardi v Tasman UEB Industries Pty Ltd (1985) 4 NSWLR 139 at 156-157 (Glass JA, Samuels JA agreeing). However, as the Court has subsequently noted, an erroneous finding of fact may demonstrate a basic misunderstanding of the case brought by the claimant, so as to demonstrate that the tribunal has failed to address and determine the issues before it and has thus failed to exercise its jurisdiction: State Super SAS Trustee Corporation v Cornes [2013] NSWCA 257 at [11]-[12].
In Kostas v HIA Insurance Services Pty Ltd ("Kostas") (2010) 241 CLR 390; [2010] HCA 32 at [33], French CJ held: An appellant invoking [the appellate jurisdiction] should identify the decisions of the Tribunal of questions with respect to matters of law which are the subject of the appeal. A decision of a question with respect to matters of law is not merely a condition of the jurisdiction… it is the subject matter of that jurisdiction.
In Kostas, the High Court accepted that to decide a question on a "no evidence" basis was an error on a question of law (at [59] per French CJ and [90] per Hayne, Heydon, Crennan and Kiefel JJ).

[12]

Conclusion on Ground 1

Bathurst CJ's summary in Duncan signifies that if a particular inference is reasonably open, even if reached for illogical reasons, there is no place for judicial review, because no error of law has occurred. Clearly, findings or inferences of fact can be challenged if the decision is irrational or illogical, and not based on findings or inferences of fact supported by logical grounds.
Minister for Aboriginal Affairs v Peko-Wallsend Ltd ("Peko-Wallsend") (1986) 162 CLR 24; [1986] HCA 40 says that this ground of review can be made out only if the decision is so unreasonable that no reasonable person could have come to it.
I accept the respondent's submissions in this regard.
The reasons of Commissioners should not be examined with the myopic focus that may accompany analysis of the reasons of a judge. Rather, emphasis should be on determining the essential reasons for a decision. See, e.g. Carstens v Pittwater Council (1999) 111 LGERA 1; [1999] NSWLEC 249 at [76]
The issue of what constitutes a "question of law" for the purposes of a s 56A appeal has also been considered many times in this Court. Most recently, in Hoy v Coffs Harbour City Council ("Hoy") [2015] NSWLEC 128, at [7] - [11]. Those principles were summarised by the respondent in its submissions (par 20) as follows: (a) An appeal must identify a question of law explicitly or implicitly decided at first instance: Warkworth Mining Ltd v Bulga Mulbrodale [sic] Progress Association Inc [2014] NSWCA 105; (2014) 86 NSWLR 527 at [4]. (b) That question must also be sufficiently material that a wrong answer vitiates the decision: Sydney Water Corporation v Caruso [2009] NSWCA 391; (2009) 170 LGERA 298 at [29], [133]-[136] and [191]. (c) The question must also arise from a contest or dispute between the parties: Edyp v Brazbuild Pty Ltd [2011] NSWCA 218 at [147], [160] per Basten JA; (d) The merits of a commissioner's decision cannot be the subject of a s 56A appeal (Hoy at [7]); (e) An appeal under s 56A is "on a question of law" not limited, however, to "an error of law": ISPT Pty Ltd v Valuer General [2009] NSWCA 31 (2009) 165 LGERA 25 at [3] per Allsop P. (f) In the absence of any statutory indication of the weight to be given to various considerations, an allegation that insufficient weight was given to particular evidence is generally insufficient as a ground of appeal: ... Peko-Wallsend Ltd at 41, Terrace Tower Holdings Pty Ltd v Sutherland Shire Council [2003] NSWCA 289; (2003) 129 LGERA 195 at [57], Hoskins v Waverley Council [1999] NSWLEC 236 at [11]-[12]. (g) A commissioner or judge of the Court is required to address relevant material issues by exposing his or her reasoning: Segal v Waverley Council [2005] NSWCA 310; (2005) 64 NSWLR 177 at [43] per Tobias JA, Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 259 per Kirby P, at 279 per McHugh JA. (h) The Court at first instance is not required to "deal with every argument raised and every possibility that could be adverted to": Comcare v Forbutt [2000] FCA 837 at [58] per Heerey J cited by Tobias JA in Segal at [71]. (i) The judgment should be read on the basis that the Commissioners and the parties were present and understood the issues presented by them: see by analogy Southon & Ors v Gordon Plath on behalf of the Department of Environment and Climate Change [2010] NSWCCA 292; (2010) 181 LGERA 352 at [79]. (j) An approach to finding error that is nitpicking with an eye to identifying error is not permissible, as identified in numerous authorities commencing from Brimbella Pty Ltd v Mosman Municipal Council (1985) 79 LGERA 367 at 368. (k) Very importantly, a judgment must be considered as a whole, not selecting parts of the judgment and reading them out of context: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 291, O' Donnell v Sutherland Shire Council [2011] NSWLEC 184 at [23].

[13]

Ground 3 - Failure to afford procedural fairness

The applicant concedes that the "amber light" approach, being a discretionary exercise, may in effect mask a larger question which is at the heart of ground 3 - obligations which may arise from a persistently applied policy in administrative decision-making, and/or in merit appeals.
The third ground of appeal asserted by the applicant was that the Commissioner erred in law by failing to afford procedural fairness to the applicant, i.e. by not providing any opportunity to make submissions, and/or lead evidence, about the conclusion reached in paragraph [53] of her Judgment, which I now repeat: The applicant submitted that it would invite an amber light approach if that were the conclusion reached. Having regard to drawing DA08, any adjustment to the setback would have implications for the only source of light and outlook for bedroom 2; and such a fundamental re-design would not in my view be appropriately managed in that manner.
It was accepted by the respondent that a failure to afford procedural fairness is an error of law: Castle Constructions Pty Ltd v North Sydney Council [2008] NSWLEC 239.

[14]

Applicant's submissions

The applicant submits in the present appeal that procedural fairness (Kioa v West (1985) 159 CLR 550; [1985] HCA 81, at 584, per Mason J), must be applied to situations where a person has a legitimate expectation derived from (a) an undertaking by a decision-maker to follow a course of conduct (FAI Insurances v Winneke (1982) 151 CLR 342), or (b) a representation that it would do so (Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex Parte Lam ("Lam") (2003) 214 CLR 1; [2003] HCA 6 at 29 (McHugh and Gummow JJ), at 47 (Callinan J); WZARB v Minister for Immigration and Citizenship (2013) 302 ALR 657; [2013] FCA 523).
Hence, a person with a "legitimate expectation" arising out of a policy or representation is entitled to be heard not only about the decision to accede, but also about departure from that policy or representation. That opportunity to be heard may be required to be afforded even where the person has already been afforded procedural fairness by being heard on the substantive decision: Haoucher v Minister for Immigration and Ethnic Affairs (1990) 169 CLR 648 (applicant's subs 45).
In this case, the applicant submits (46) that the Court's development of the "traffic light" approach to merit appeals gives rise to a legitimate expectation to be heard, and an obligation to afford the applicant procedural fairness, including if it were proposed to depart from the policy.
I note that more recent authority (Plaintiff S10/2011 v Minister for Immigration and Citizenship ("Plaintiff S10/2011") (2012) 246 CLR 636, at [65] - [66]) suggests that the term "legitimate expectation" is "an unfortunate expression", no longer to be regarded as a useful or applicable concept for procedural fairness. However, expectations can still affect the practical content of an obligation to afford procedural fairness: Lam, per Gleeson CJ, at 12 [33]. Further, the substance of what were previously called "legitimate expectations" is still relevant to whether procedural fairness has not been afforded, so as to vitiate an administrative decision. Policy and practice still form part of procedural fairness (Tp25, LL21 - 25).

[15]

Respondent's submissions

There was here no formal application to amend or adjourn made by the applicant, nor was there any discussion of timing, or what precise form an amendment would take, or the possible prejudice to the respondent and the Court's business. Further, none of the matters in ss 56 - 59 of the Civil Procedure Act 2005 were addressed.
The respondent submitted (61) that, even if such a concept of "legitimate expectation" (still) existed, there can be no expectation gleaned from a discretion occasionally exercised by the Court to adopt the "amber light" approach.
The "amber light" does not arise from any statutory prescription; rather, any "expectation" must be considered in the context of the provisions of the Land and Environment Court Act 1979, Division 2 of Part 4 of the Environmental Planning and Assessment Act 1979, and, perhaps most notably, Division 2 of Part 6 of the Civil Procedure Act 2005. Reliance on discretionary decisions in other cases, which turn on their own facts, can satisfy the test of neither "legitimate", nor "expectation".
The respondent continued (62): ... the context of the nature of procedural fairness to be afforded must be viewed in the context of the prescriptions of the statutory scheme.
The respondent then set out a number of "well accepted principles" related to procedural fairness, in the context of "legitimate expectation", subsequent to Plaintiff S10/2011, as follows: (a) The common law duty to act fairly attaches to an exercise of public power affecting a person's rights and interests in a direct and immediate way, subject to a clear manifestation of contrary intention (Kioa v West [1985] HCA 81; (1985) 159 CLR 550 at 584); (b) The duty relates to the process by which a statutory power is exercised and not the outcome of any such exercise. This follows from the fundamental principle that: "[t]he duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power… The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and subject to political control, for the repository alone" (Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35 - 36 and see also SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 at [25]); (c) The authoritative test for the application of the requirements of a procedural fairness is whether the exercise of power may destroy, defeat or prejudice a person's rights or interests (Vanmeld Pty Ltd v Fairfield City Council [1999] NSWCA 6; (1999) 46 NSWLR 78 at [53] citing Annetts v McCann [1990] HCA 57; (1990) 170 CLR 596 at 598 and Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564 at 576. See also Lesnewski v Mosman Municipal Council [2005] NSWCA 99; (2005) 138 LGERA 207 at [56] - [57]). (d) Where a duty to afford procedural fairness exists, if it is subject to a particular statutory framework, that framework must be given "full effect" (see (Mobil Oil Australia Pty Limited v Federal Commissioner of Taxation [1963] HCA 41; (1963) 113 CLR 475 at 504). This is because the requirements do not involve a "fixed body of rules" and fairness "is not a one-sided business" (Mobil Oil at 504); (e) Close consideration of the statutory framework is required or the debate may take place at too high a level of abstraction (SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 at [26]). The requirements, if applicable, are flexible and must be "moulded" to the circumstances of the particular case (Kioa v West at 585 and Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72; (2005) 225 CLR 88 at [25]); (f) In considering the statutory scheme "it is necessary to pay regard to the practical context in which the decision maker must consider whether to exercise the power" (Re Minister for Immigration and Multicultural Affairs; Ex parte MIAH (2001) 206 CLR 57 at [29] - [31]). The "circumstances of the case, the nature of the inquiry and the subject-matter being dealt with" are all relevant to the content of the duty (South Sydney City Council at [254]). The duty may be "reduced to nothingness by the circumstances in which a power is exercised" (Kioa v West at 616).

[16]

Discussion

There is an established common law duty to afford a party procedural fairness when a decision is made that may affect its rights or interests. In Kioa v West (1985) 159 CLR 550 at 582, Mason J said: It is a fundamental rule of the common law doctrine of natural justice expressed in traditional terms that, generally speaking, when an order is made which will deprive a person of some right or interest or the legitimate expectation of a benefit, he is entitled to know the case sought to be made against him and to be given an opportunity of replying to it.
Procedural fairness requires a fair hearing, and the absence of bias. It particularly requires a decision-maker to inform a party of the case brought against it, and allow it a corresponding opportunity to be heard in regard to that. The extent of the obligation on the decision-maker is dependent on the relevant statutory framework, and on what is "fair" in the circumstances.
Even if the concept of "legitimate expectation" is no longer favoured in the context of procedural fairness, in the context that it "either adds nothing or poses more questions than it answers and thus is an unfortunate expression which should be disregarded", the applicant here argues that it was denied procedural fairness because the learned Commissioner failed to give it the opportunity to address the two findings ultimately made in [53], when the applicant was entitled to expect the opportunity to do so.
I respectfully agree with the submission of the respondent that there can be no expectation gleaned from the Court's occasional discretionary decisions to adopt the "amber light" approach. It is not a component of standard procedure, to be consistently followed, and remains a matter of flexibility and discretion, to be employed in appropriate cases. See again Pain J in Riverstone Parade, at [38] ([32] above).
The applicant's third ground of appeal also fails.

[17]

Conclusion

As the applicant has not succeeded on any of its three grounds of appeal, this appeal must be dismissed.

[18]

Orders

The Court makes the following orders: 1. The Applicant's appeal under s 56A of the Land and Environment Court Act 1979 is dismissed. 2. The Applicant is to pay the Respondent's costs of this appeal. 3. The exhibit may be returned.

[19]

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: 03 December 2018

In Ali v Liverpool City Council ("Ali") [2009] NSWLEC 1327, Moore SC (as his Honour then was) said (at [120] - [122], and [286]): 120 ... This ["amber light"] approach says that, if a proposal is not appropriate to be given approval in the form being considered but, with minor and identifiable amendments consistent with the application before the Court, it would be capable of approval, the Court should make a determination: • setting out the changes that are required to render the proposal acceptable; • requiring the applicant to make those changes, whether by preparation of amended plans or by Court imposed conditions settled between the parties; and • when such modifications are incorporated (thus rendering the proposal acceptable), approval should be given to the amended proposal. 121 In this case, a number of modifications emerging from the objectors' evidence and the concurrent evidence given by the town planners led to a number of propositions being put to Mr Ayling for the applicant to consider. These propositions were not put on any basis to indicate that I had already formed any conclusion concerning the overall merits of the proposal but were merely put in response to comparatively minor matters raised where these matters appeared, to me, both to have merit warranting consideration and being of comparatively easy scope to address. 122 The amendments discussed below are matters capable of adaption within the amber light process leading to what the former Chief Judge of the Court, McClellan CJ, described as "the best community outcome". ... 286 However, as I raised within Mr Ayling on several occasions during the course of the hearing, there are a number of minor changes, all of which were said by Mr Ayling to be acceptable to the applicant, that are required to be made to render the proposal more acceptable. All of these changes, as I understood the position, were acceptable to the council and do not alter the consent order status of the outcome of these proceedings. ...

However, as noted by the respondent (par 23), that principle has its root in other principles of appellate and administrative law, which concern conclusions not logically or reasonably open to be reached by a court. This is simply a description of a type of "manifest unreasonableness" or "irrationality", being well known grounds of appeal. This was directly explained by Bathurst CJ in Duncan v Independent Commissioner Against Corruption ("Duncan") [2016] NSWCA 143 (at [278] - [280]) in these terms: If it were established that there was no evidence to support the finding that the conduct found by the Commission could adversely affect the exercise by a public official of official functions, that would constitute an error of law: Australian Broadcasting Tribunal v Bond [1990] HCA 33; 170 CLR 321 (Bond) at 355; Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; 241 CLR 390 at [91]; D'Amore v Independent Commission Against Corruption [2013] NSWCA 187; 303 ALR 242 at [244]. In Bond, Mason CJ stated that, at common law, so long as a particular inference is reasonably open, even if reached as a result of illogical reasons, there is no place for judicial review because no error of law has taken place: at 356. However, it does seem clear that findings or inferences of fact can be challenged if the decision was irrational or illogical and not based on findings or inferences of fact supported by logical grounds. In Peko-Wallsend, Mason J, as his Honour then was, stated that this ground of review would only be made out if the decision was so unreasonable that no reasonable person could have come to it: at 41, citing Associated Picture Houses Ltd v Wednesbury Corporation (1948) 1 KB 23; see also Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; 197 CLR 611 at [123]-[127]. Indeed, the approach in these authorities reflected what was said by Dixon J in Avon Downs Pty Ltd v Federal Commissioner of Taxation [1949] HCA 26; 78 CLR 353 at 360. In Re Minister for Multicultural Affairs; Ex parte S20 [2003] HCA 30; 198 ALR 59, McHugh and Gummow JJ accepted that, where the determination of the tribunal was irrational, illogical and not based on findings or inferences of fact supported by logical grounds, a decision was reviewable: at [34]-[37]. See also Minister for Immigration, Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; 207 ALR 12 at [37]-[38]. A similar approach was taken by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 (SZMDS). Their Honours made the following remarks at [130]-[131]: "[130] In the context of the Tribunal's decision here, 'illogicality' or 'irrationality' sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is 'clearly unjust' or 'arbitrary' or 'capricious' or 'unreasonable' in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case. [131] What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion."

An analysis of the Commissioner's decision in the present case shows that her finding was not made on the basis of illogical reasons; it was not irrational; and it was not so unreasonable that no reasonable person could have come to it. Her finding that there would be implications for bedroom 2 was based on her consideration of relevant evidence and a view of the site. DA08 itself provides a basis for the Commissioner to reasonably draw the conclusion she did: namely, there would be implications to amenity if the setback were adjusted. As the respondent noted in its submissions (27 to 31): 27. The finding here was that "any adjustment to the setback would have implications for the only source of light and outlook for bedroom 2". It is a simple enough matter to demonstrate how that conclusion was reached by reading the introductory words, being: "[h]aving regard to drawing DA08, any adjustment to the setback would have implications for the only source of light and outlook for bedroom 2". Unlike non-existent letters/notices in Kostas, the Court is looking at a plan and drawing conclusions from it, namely that there would be implications for bedroom 2. The plan DA08 itself (and the inferences about access to light and outlook) provide the evidence or rational basis for the Court to reasonably draw the conclusion, it did: namely, there would be implications to that amenity if the setback was adjusted. 28. The Commissioner, as a matter of merit, was entitled to conclude (having regard to the matters of consideration under s 79C, that the applicant's proposal was not acceptable for that reason). What follows, however, is refusal to exercise a discretion to adjourn the proceedings to allow the applicant to further amend the proceedings (the 'amber light' approach to which the applicant refers). The Court's discretion is governed by a range of factors, not least of which are ss 56 to 60 of the Civil Procedure Act 2005 (particularly the overriding purpose in s 56 and the provisions relating to adjournment in ss 57 and 58). 29. It is correct to point out, as the applicant does, that the words the Court used in deciding not to exercise that discretion, were that the adjustment to the setback, in having "implications for the only source of light and outlook for bedroom 2" would require a "fundamental re-design [which] would not be appropriately be managed in that manner" (that manner, being an adjournment to allow for amended plans to be provided pursuant to an 'amber light' approach). There is no question that amendment to plans constitutes a "re-design", here, particularly, with a change to the setback. The Commissioner had already expressed the view that this had "implications for the only source of light and outlook for bedroom 2". The issue can only be on the basis of the use of the word "fundamental". In reality, this is no issue at all. It was open from the plans for the Court to conclude that the amenity of bedroom 2 would be changed. It would be smaller. It would not retain the outlook it had. It would not retain the solar access it had. Those are matters that were open to the Court to look at the plan and form those conclusions. Whether that is "minor", or "middling" or "fundamental" is simply a matter of conclusary opinion for the Court, as a matter of weight and fact and degree from its analysis if the changes which may occur if those plans changed, having regard to the amenity impacts arising from solar access and outlook. 30. This case is entirely unlike Kostas. It is entirely unlike those described by Bathurst CJ in Duncan. Contained within the very paragraph itself, the subject of the applicant's complaint, is the response to the criticism. The Court did not accept the impact on amenity (the "bulk" referred to in paragraph [52] inter alia, of the judgment) and any cure to it by amendment, would have consequential effects to the internal amenity of the bedroom 2 shown on DA08. Thereafter, the Court exercised a discretion not to allow an adjournment (implicit in the amber light approach) for the applicant to amend its plans. 31. That last point is also critical. The conclusion about redesign, is only one element of the conclusion made by the Court. The real issue in the proceedings was whether the proposal warranted refusal because the lack of consistency with objective (b) and therefore the inability to allow a variation to the height controls pursuant to cl. 4.6 and cl. 4.3 of the LEP. The Court concluded that it did warrant refusal of the application. It was simply enough to have reach [sic] that result. The Court clearly then turned its mind to whether or not it would allow the applicant's implicit adjournment application (noting there was no supporting evidence or reasoning as to why that was appropriate).

Luxe Manly Pty Limited v Northern Beaches Council

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