Manly Council v BSDI Pty Limited

Land and Environment Court (NSW)|2009-09-22|Before: Pepper J

Introduction 1 HER HONOUR: This is an appeal pursuant to s 56A of the Land and Environment Court Act 1979 against the decision and orders of a Commissioner of the Land and Environment Court made on 20 March 2009 (BSDI Pty Ltd v Manly Council [2009] NSWLEC 1067). 2 Class 1 proceedings were commenced by the respondent, BSDI Pty Limited ("BSDI"), on 30 April 2008, against the appellant's, Manly Council's ("the council"), deemed refusal of its development application for the construction of a two storey childcare centre and associated car parking in Seaforth. The proceedings were heard by the Commissioner, who approved the proposed childcare centre subject to conditions. 3 Subsequently the council formerly refused development consent on 2 July 2008. Grounds of Appeal 4 The five grounds of appeal listed in the summons were reformulated by the council in its submissions as follows: (a) failing to take into account relevant consideration, namely, cl 101(2) of the State Environmental Planning Policy (Infrastructure) 2007 ("the SEPP") pursuant to s 79C(a)(i) of the Environmental Planning and Assessment Act 1979 ("the EPAA"), absent any reference to the clause in the judgment (ground 1);

(b) misconstruing cl 101 of the SEPP in that the clause requires the consent authority to be satisfied as to the matters listed in cl 101(2) before a development consent may be granted and failing to give reasons for that satisfaction (ground 2);

(c) failing to take into account relevant consideration, namely, cl 10(3) of the Manly Local Environmental Plan 1988 ("the LEP") contrary to s 79C(a)(i) of the EPAA (ground 3);

(d) misconstruing cl 10 of the LEP which required, pursuant to cl 10(3), the Commissioner to be of the opinion that the carrying out of the development was consistent with the objectives of the zone within which the development was proposed to be carried out before development consent was granted and failing to be satisfied that the carrying out of the development was consistent with the objectives of the residential zone (ground 4); and

(e) if the Commissioner has taken into account cl 101 of the SEPP and cl 10 of the LEP and has formed the relevant opinions required by those clauses, then the Commissioner failed to give adequate reasons (ground 5). Summary of Decision 5 I have determined that the appeal must be dismissed because when properly analysed and having regard to the manner in which the hearing before the Commissioner was conducted by the parties, in particular the council, in my opinion, the Commissioner properly considered and determined all of the issues raised before her in approving the development application. Statutory Planning Framework 6 Section 79C(1)(a)(i) of the EPAA states:

79C Evaluation (1) Matters for consideration - general In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application: (a) the provisions of: (i) any environmental planning instrument, … 7 Section 4 of the EPAA describes an "environmental planning instrument" as including the particular LEP and SEPP the subject of this appeal:

… an environmental planning instrument (including a SEPP or LEP but not including a DCP) made, or taken to have been made, under Part 3 and in force. 8 Clause 101 of the SEPP states that development along classified roads "must not" be given approval unless the consent authority is satisfied of the considerations listed under cl 101(2). It states: 101 Development with frontage to classified road (1) The objectives of this clause are: (a) to ensure that new development does not compromise the effective and ongoing operation and function of classified roads, and (b) to prevent or reduce the potential impact of traffic noise and vehicle emission on development adjacent to classified roads. (2) The consent authority must not grant consent to development on land that has a frontage to a classified road unless it is satisfied that: (a) where practicable, vehicular access to the land is provided by a road other than the classified road, and

(b) the safety, efficiency and ongoing operation of the classified road will not be adversely affected by the development as a result of: (i) the design of the vehicular access to the land, or (ii) the emission of smoke or dust from the development, or (iii) the nature, volume or frequency of vehicles using the classified road to gain access to the land, and (c) the development is of a type that is not sensitive to traffic noise or vehicle emissions, or is appropriately located and designed, or includes measures, to ameliorate potential traffic noise or vehicle emissions within the site of the development arising from the adjacent classified road. 9 Clause 10 of the LEP provides:

10 Zone objectives and development control table (1) The objectives of a zone are set out in the Table to this clause under the heading "Objectives of zone" appearing in the matter relating to the zone. (2) Except as otherwise provided by this plan, in relation to land within a zone specified in the Table to this clause, the purposes (if any) for which: (a) development may be carried out without development consent, (b) development may be carried out only with development consent, and (c) development is prohibited, are specified under the headings "Without development consent", "Only with development consent" and "Prohibited", respectively, appearing in the matter relating to the zone. (3) Except as otherwise provided by this plan, the council shall not grant consent to the carrying out of development on land to which this plan applies unless the council is of the opinion that the carrying out of the development is consistent with the objectives of the zone within which the development is proposed to be carried out. Table Zone No 2 Residential Zone

1 Objectives of zone The objectives are: (a) to set aside land to be used for the purposes of housing and associated facilities, (b) to delineate, by means of development control in the supporting material, the nature and intended future of the residential areas within the Municipality, (c) to allow a variety of housing types while maintaining the existing character of residential areas throughout the Municipality, (d) to ensure that building form, including alterations and additions, does not degrade the amenity of surrounding residents or the existing quality of the environment, (e) to improve the quality of the residential areas by encouraging landscaping and permitting greater flexibility of design in both new development and renovations, (f) to allow development for purposes other than housing within the zone only if it is compatible with the character and amenity of the locality, (g) to ensure full and efficient use of existing social and physical infrastructure and the future provisions of services and facilities to meet any increased demand, (h) to encourage the revitalisation of residential areas by rehabilitation and suitable redevelopment, and (i) to encourage the provision and retention of tourist accommodation that enhances the role of Manly as an international tourist destination, and particularly in relation to the land to which Manly Local Environmental Plan 1988 (Amendment No 57) applies.

Factual Background 10 It is common ground that in March 2008 BSDI submitted a development application (DA 51/2008) for the demolition of existing structures and the construction of a two storey building with associated car parking and landscaping for use as a childcare centre at 114 Frenchs Forest Road, Seaforth. 11 The proposal involved work on a public road that required the consent and concurrence of the RTA pursuant to s 138 of the Roads Act 1993 because the road is a classified road. 12 The council refused the application primarily because of:

(a) the location of the site on a main road with limited pedestrian safety;

(b) the past contamination of the site had not been adequately resolved;

(d) the unacceptable impact on the adjoining properties and streetscape.

Conduct of the Hearing Before the Commissioner 13 On 6 June 2008, the council filed its statement of facts and contentions. The document included eight broad merit contentions each of which were particularised in detail.

14 Clause 101(1) and (2) of the SEPP was referred to in the particulars to the contentions relating to: the suitability of the site as a childcare centre due to concerns regarding safety, vehicle emissions and traffic noise; the unacceptability of the proposal in terms of parking and traffic and the amenity of children.

15 Clause 10 of the LEP and the objectives of the residential zone were referred to in the particulars to the contentions relating to: the suitability of the site; traffic and parking; noise; overdevelopment, privacy and visual bulk and landscaping.

16 On 3 July 2008, the appeal was listed for case management before Senior Commissioner Roseth. The Senior Commissioner considered the filed statement of facts and contentions by the council, heard argument from the parties and reformulated the contentions in the appeal to eight numbered issues, with sub-issues, as follows: (a) traffic and parking;

(d) the impact of traffic noise and emissions on children;

(e) the bulk of building, building line and excavation of site;

(h) issues raised by objectors. 17 At the end of the case management conference the Senior Commissioner provided the parties with a handwritten document recording the revised issues. The document did not make express reference to either the SEPP or the LEP.

18 A three day hearing commenced on-site for an inspection, at which the council's issues were identified by it. There was no transcript of the on-site inspection, however, the transcript of the afternoon of the first day of hearing reveals the following: SCHOFIELD: So firstly, the tenders. I would still like to tender - the council had prepared a statement of facts and contentions.

COMMISSIONER: Yes, very well, facts and contentions, 10 June, is that the one Ms Schofield?

MILLER: I'd like to object to that and I know it's unusual, but we had a whole half day in front of Commissioner Roseth where that document got turned into an eight paragraph statement of contentions going forward, where it was made completely plain that it was the eight point plan that we were dealing with.

SCHOFIELD: That is the case Commissioner and I'm happy for the Senior Commissioner's notes to be handed up as well, I just thought it might assist you because that does set out what the council's concerns are, but I'm happy for, obviously for Senior Commissioner Roseth's notes to go in as well.

COMMISSIONER: Well there seems to be no need for it to be tendered as such. I mean it has already been filed with the court.

COMMISSIONER: So in terms of council's issues, they were identified on site this morning and unless there's additional issues that you need to make the applicant aware of, then I don't think we need to tender.

19 Thus while not tendered at the hearing before the Commissioner, the list of issues produced by the Senior Commissioner was clearly put before her. This was subsequently confirmed by the council in its opening when it stated that it had "started with Senior Commissioner Roseth's handwritten summary of issues".

20 Accordingly, although it cannot be said that the council abandoned either the SEPP or LEP in its formulation of the contentions before the Commissioner, the emphasis that the council placed on these instruments was very different during its conduct of the hearing below to that contained in the statement of facts and contentions and to that raised in this appeal. The significance of this shift is discussed further below.

21 The Commissioner received and considered expert parking and traffic evidence from Mr Pindar for BSDI and Mr Pirabhahar for the council. The Commissioner also considered expert planning evidence from Mr Darroch for BSDI and Mr Cother for the council.

22 The Commissioner further received expert evidence from Mr John Wasserman of Wilkinson Murray Pty Ltd ("Wilkinson Murray"), acoustic and air consultants (on behalf of BSDI), dealing with air quality. The evidence concerned the effect of vehicle emissions on children at the proposed centre. Mr Wasserman concluded that the emissions would not have a detrimental effect on the children in the proposed centre provided appropriate conditions were incorporated into the consent. This was subsequently done. The council neither adduced any evidence in response to that of Mr Wasserman on the emissions issue nor did it require Mr Wasserman for cross examination.

23 The Commissioner also received expert evidence in relation to the impact of traffic noise from: (a) Wilkinson Murray, dated February 2008, indicating that the traffic noise from Clontarf Street and Frenchs Forest Road was within acceptable limits and would not pose a problem;

(b) Mr James Cother, a town planner for the council, dated 1 August 2008, initially indicating that in his opinion even if the impact of the traffic noise on children could be reduced by reliance on mechanical ventilation and double glazing, this would not provide a pleasant environment for children;

(c) Mr Andrew Darroch and Mr James Cother, by way of subsequent joint report dated 13 August 2008, who agreed to seek clarification on whether the eastern facing doors and windows of the development would need to be closed at all times to achieve internal acoustic comfort and who agreed to a condition requiring the skylights to be increased to permit greater natural light to the ground floor; and

(d) Mr Challis AM (on behalf of the council) and Mr Gross from Wilkinson Murray, by way of a further joint report dated 19 September 2008, who stated that in relation to the traffic noise data for the southern façade of the centre, "both consultants agree that internal noise levels attributable to traffic noise within the childcare centre can be resolved through the adoption of an appropriate Condition of Consent " and in relation to the control of traffic noise in the external areas, who agreed that the 2 m high boundary fence would be adequate (although Mr Challis expressed the view that the height of the fence could be marginally increased).

24 At the hearing of the appeal confusion emerged when it was discovered that there were two signed versions of the Commissioner's decision. First, there was the decision obtained by council which was physically handed down in Court by the Commissioner. Second, there was a copy of the judgment obtained by the respondent from the internet. This latter judgment was identical to the copy on the Court file and to that published on the Court website. An explanation for this anomaly could not be provided.

25 A copy of the judgment located in the Court file was given to the council and a short adjournment followed while the two judgments were compared by the parties. It was agreed by the parties that the differences between the two judgments were not material to the outcome of this appeal. However, as a matter of fairness to the council, in these reasons I have considered and referred to the copy of the judgment given to the council in Court by the Commissioner.

26 At [14] of her judgment the Commissioner summarised the issues as: 14 The council provided a Statement of Contentions as follows: 1. The site is not suitable for the operation of a child-care centre being located at the intersection of two classified roads. The sites location on a classified road also exposes children to vehicle emissions and traffic noise.

The proposal is unacceptable in terms of parking and traffic. The particulars included: the safety efficiency and on-going operation of the adjacent classified roads will be impacted by the anticipated traffic generation of the site; additional traffic will be generated in neighbouring streets as a result of location; the function of the Clontarf Street with vehicle access and egress will be impacted; and the total number of car parking spaces is inadequate and will result in parking in neighbouring streets.

The proposed child-care centre would have an unacceptable noise impact on adjoining properties and the noise attenuation measures are unreasonable.

The proposed child-care centre would provide poor amenity and environment for the children attending the centre as they would be exposed to inappropriate high levels of traffic noise and vehicle omissions and the lower ground floor and playscape area would have limited access to natural light and generate a sense of enclosure.

The proposed built form would be an overdevelopment of the site and have an adverse impact on the adjoining sites in terms of loss of privacy and visual bulk. In particular the terrace and wall adjacent to the northern boundary generates an overbearing relationship and excessive excavation is required.

The proposed landscaping is inconsistent with the residential zone in particular the landscape design does not enhance the streetscape or adjoining properties and the proposal involves the removal of trees on the site.

Matters raised by objectors. 27 The list of issues did not refer to the SEPP or LEP as particularised in the statement of facts and contentions. Moreover, the issues identified by the Commissioner were not dissimilar in substance to those produced by Senior Commissioner Roseth.

28 The Commissioner set out the statutory planning framework governing the appeal. While she specifically referred to cl 10 of the LEP and the objectives of the residential zone (at [16]-[18]), she did not refer to the SEPP.

29 At [60] and [61] of her judgment the Commissioner commenced her assessment and findings by stating that:

60 In my merits assessment of the application I have considered all the evidence to the Court including that of the experts, the resident objectors and the site inspection. I have considered the application against the planning framework of the council including the LEP and DCP's for Child-care Centres and the Residential Zone.

61 It is self evident that the site has a major constraint by its location at a busy corner of two arterial roads. The site itself is dominated by the road and noise, however, the surrounding area is predominantly low density residential development in garden settings with a quieter vegetated ambience. The role of the Court is not to determine whether the subject site is the most ideal or best location for a child-care centre but whether the site is suitable on a merits assessment. 30 The Commissioner went on to approve the development application for the following reasons: (a) first, she was satisfied with the design of the car park. There was an adequate manoeuvring area for vehicles to wait and the proposed parking numbers for the centre were sufficient (at [62]). The Commissioner noted that "it is most important and in the interests of the operation of the Centre that the car parking is adequate and functional" (at [62]);

(b) second, she was satisfied that the impact of the development on the amenity of the adjoining dwellings, including the acoustic impact, could be met and did not, subject to the imposition of conditions, warrant refusal (at [63]-[66]);

(d) fourth, in relation to "the difficulties with queuing of cars and the potential for accidents" (at [68]), the Commissioner gave the DCP for childcare centres primary focus and consideration in her assessment of the application and concluded that "on balance, in my assessment, with the benefit of the expert evidence while the site has limitations and constraints I am satisfied that the site is suitable for the proposed development" (at [68]);

(e) fifth, the Commissioner noted that while the site would have background traffic noise associated with its location "adjacent to busy roads" (at [69]) and was not ideal, she was nevertheless satisfied that "the issues of car parking ingress and egress, manoeuvring on-site together with internal amenity and maintaining the amenity of adjoining dwellings and the relationship of the built form is resolved in the plans before the Court subject to appropriate conditions" (at [69]);

(f) sixth, BSDI failed to persuade her that a deferred commencement condition to provide for a notice of completion of remediation works should not be imposed given the sensitive land use as a childcare centre (at [70]);

(g) seventh, the Commissioner accepted the traffic engineering evidence that the pedestrian refuge was safe and she noted the expert evidence that the majority of the children would come to the site by car (at [71]);

(h) eighth, the Commissioner had regard to the importance of the safe and convenient setting down and picking up of children which needed to be carried out with no adverse impact on the road system (at [73]). She noted, therefore, that it was important that sufficient spaces were provided for parents and carers to park. She had regard to Mr Pindar's evidence, to that of the council's engineer and to BSDI's evidence for the need to increase the dwell time because of the ingress to the centre (at [73]). Ultimately, the Commissioner was satisfied that if the centre provided 13 car parking spaces for staff and 10 spaces for carers and parents this would be sufficient (at [72] and [74]);

(i) ninth, the Commissioner had regard to the evidence and the conditions proposed by the council for the monitoring of air quality for the children to limit the effect of the vehicle emissions (at [75]);

(j) tenth, the Commissioner was satisfied that the proposal would not impact on the heritage item known as "Dalwood" (at [76]); and

(k) eleventh, the Commissioner accepted that while the high walls could be imposing for small children, given careful design of equipment and other features this would not warrant refusal of the application (at [77]).

31 The Commissioner concluded that (at [78]): The location of the proposed child-care centre may not be optimal however after a careful assessment I am satisfied that the issues raised have been adequately addressed and there are no issues in isolation or combination that would warrant refusal of the application.

32 A s 56A appeal may only be made on a question of law. In The Village McEvoy Pty Limited v Council of the City of Sydney (No 2) [2010] NSWLEC 17 (at [24]-[31]) I set out the principles to be applied in the determination of a s 56A appeal. In particular, of significance is the principle that while the reasons of a commissioner must not be approached with a 'fine tooth comb', they must nevertheless be adequate in the sense of referring to the evidence and issues that are important and critical to the determination of the case and to identify why the contentions of one side have been preferred over those of the other.

Grounds 1 and 2: Did the Commissioner Fail to Take Into Account Clause 101(2) the SEPP or Misconstrue the Clause?

33 As stated above, it was not in dispute that the Commissioner, in her judgment, did not expressly refer to cl 101 of the SEPP. It was also not a matter of controversy that the SEPP was a relevant statutory instrument which the Commissioner was ordinarily bound to consider pursuant to s 79C(1)(a)(i) of the EPAA.

34 The council submits that the Commissioner's failure to expressly consider the clause resulted in her failing to reach the requisite state of satisfaction and amounted to legal error vitiating her decision.

35 The respondent's submissions may be summarised as two-fold: first, that in its conduct of proceedings before the Commissioner, the council did not submit that as a matter of law cl 101 of the SEPP was a mandatory precondition to the exercise of power under s 79C(1) of the EPAA which necessitated a positive statement by the Commissioner of demonstrated satisfaction and that, therefore, failure to make express reference to the clause was demonstrative of legal error. That is to say, having conducted the hearing effectively as a merit hearing in general terms on the suitability of the site for the proposed childcare centre, the council could not now criticise the Commissioner for having failed to specifically refer to the SEPP or the mental state contained in cl 101(2) of that instrument.

36 Second, that the absence of any express reference to the clause or the attainment of the necessary state of satisfaction pursuant to it did not matter because the Commissioner discussed, in terms, the substance of cl 101 and arrived at the mental state, albeit while not employing the language of that clause. Thus the Commissioner considered the various merit contentions that underpinned cl 101(2) and framed the approval and consent conditions accordingly which was, the respondent submitted, sufficient.

37 A study of the conduct of the council before the Commissioner reveals that while the Commissioner was undoubtedly made aware of the existence of cl 101(2) of the SEPP (cf Design Power Assocs Pty Ltd v Willoughby City Council (2005) 148 LGERA 233 at [31] and [32]), it was the substance of the contentions emanating from that clause which fashioned the contest between the parties and was the focus of the conduct of the proceedings before her and not the specific mechanics or language of the instrument (Bankstown City Council v Mohamad El Dana [2009] NSWLEC 68 at [18] and Design Powers at [55]). That is to say, the council raised merit contentions concerning the proposed development which only then were particularised by reference to, amongst other matters, the SEPP and LEP.

38 This conclusion is reinforced by the statement of facts and contentions itself (the environmental planning instruments were referred to in generalised terms amongst a host of particulars to the primary contentions), the document produced by the Senior Commissioner during the case management conference which formed the basis of the council's opening of the issues before the Commissioner, the limited reference to the instruments in both the written and oral closing submissions of the council and the list of issues formulated by the Commissioner at the commencement of her decision, which I infer was constructed in accordance with the way in which the contentions were argued before her.

39 Thus while I do not accept that the Commissioner was not made aware of the existence of cl 101(2) of the SEPP, I do accept the submission of the respondent that it was the determination of the more generalised merit contentions that was to be dispositive of the proceedings below. That is to say, it was the subject-matter and not the form of the clause that was, having regard to the conduct of the proceedings, joined in issue (El Dana at [20]). Having adopted this course during the hearing, the council was bound by it (El Dana at [46]-[53] and the authorities referred to thereat).

40 It therefore follows that the Commissioner's failure to expressly refer to the SEPP in her decision is not determinative of the appeal in the council's favour. Put another way, the failure to advert to the terms of cl 101(2) of the SEPP or to express her conclusions as to the matters raised for consideration in that clause in terms other than those contained in the clause is not of itself necessarily indicative of error (El Dana at [27] and [54] and Design Power at [55]).

41 Rather, the issue is whether the Commissioner, first, considered the substance of cl 101(2) of the SEPP, as that subject-matter was put to her (El Dana at [54]), and second, having done so, reached the appropriate mental state.

42 A fair reading of the transcript and the submissions of the council demonstrates that cl 101(2) of the SEPP was only raised by the council in the context of "the suitability of the site as a location for a childcare centre". Specifically, the council submitted that because of its adverse impact on the safety, efficiency and ongoing operation of the classified roads due to congestion and queuing into and out of the site, together with the inadequate number of parking spaces and the inadequate manoeuvring and standing area on the site, the proposal was unsuitable. Also of concern to the council was the impact of the proposal on the amenity of the children due to exposure to traffic noise and vehicle emissions.

43 It was these matters to which the Commissioner's attention was directed. It was these matters which the Commissioner was therefore bound to consider and determine.

44 In any event, as the discussion below demonstrates, the Commissioner not only considered the contentions raised by the council which were ultimately in dispute, she also formed, either directly or by inference, the necessary mental state referred to in the environmental planning instruments.

Safety, efficiency and operation on classified roads

45 In her decision the Commissioner considered and stated that she was satisfied that the number of parking spaces provided for was satisfactory having regard to the traffic flow to and from the classified roads (at [62]). At [68] she specifically considered the suitability of the site "because of its boundaries with two classified roads and the location would cause difficulties with queuing of cars and the potential for accidents". The Commissioner concluded in the same paragraph that "in my assessment, with the benefit of the expert evidence while the site has limitations and constraints I am satisfied that the site is suitable for the proposed development."

46 While the Commissioner specifically identified the DCP, and not the SEPP, as the "central focus and consideration in my assessment of the application" (at [68]), the subject matter of the DCP was relevantly and sufficiently similar to the objectives and content of cl 101(2) of the SEPP that it cannot be said, in my opinion, that the Commissioner failed to consider the subject matter of cl 101 of the SEPP.

47 Thus the Commissioner considered the overall safety of the site and stated (at [68]): 68 The council contends that the site is not suitable because of its boundaries with two classified roads and the location would cause difficulties with queuing of cars and the potential for accidents. I have given the DCP for child-care centres central focus and consideration in my assessment of the application. This states that "sites on arterial roads or at busy intersections should be avoided". It also contains a number of other performance criteria including sites with a minimal number of adjoining residential properties will reduce the negative community impact on the neighbourhood in terms of noise and loss of privacy and that sites located within non-residential dominated area require additional considerations. I have given serious consideration to the residents and councils concerns however and, on balance, in my assessment, with the benefit of the expert evidence while the site has limitations and constraints I am satisfied that the site is suitable for the proposed development.

48 This was reiterated at [71] and [73] in the context of the expert evidence of the traffic engineers.

49 The Commissioner also considered the safe and efficient operation of the classified roads in relation to sight lines, the number of vehicle parking spaces and ingress and egress procedures to and from the site (at [72]-[74]). On a fair reading of her decision the Commissioner, after considering the expert evidence and the critical requirement "that the on-site parking for the childcare centre provides safe and convenient parking… and that the road system is not adversely impacted… given there is no opportunity to park on street and queuing must be contained on the site" (at [73]), concluded that, subject to a variation to increase the number of parking spaces, she was "satisfied that the centre provides sufficient spaces" (at [74]).

50 This attainment of satisfaction by the Commissioner is further evidenced by consent conditions 18-29 annexed to the judgment regarding the provision for safe traffic movement, signage and sight lines along the classified roads to ensure child and vehicular safety.

51 In terms of vehicle emissions, again, in my opinion, a fair reading of the Commissioner's decision is that this matter was considered by her and that at the very least, as a matter of inference, she attained the appropriate mental state in relation to it.

52 The Commissioner specifically referred to "the question of air quality" raised by the council and the air quality report of Mr Wasserman submitted by the respondent (I note that Mr Wasserman's opinions were not challenged and were not the subject of contrary evidence by the council) and referred to the consent conditions proposed by the council for the monitoring of air quality for the children (at [75]).

53 Consent condition 5 imposed by the Commissioner provided that: The childcare centre's air conditioning system shall incorporate a filtered / silenced make up fresh air supply that complies with the requirements of AS1668 Part 2 and which serves all relevant areas.

54 Further, consent condition 112 provided that: Vehicle emissions are to be monitored through sight and odour be centre staff during high volumes of traffic and during peak pick up and drop of times at the western boundary of the entry and exit point of Clontarf Street in order to minimise potential exposure of concentrated vehicle emissions to vulnerable population(s). Should the emissions be visual or emit any odour the following precautions are to be taken to minimise the risk of exposure of vulnerable population(s): + Vehicles are to be turned off during long delays. + Windows and doors are to be closed to minimise an increase of indoor air pollution. + Infants and children are to be taken directly from the child care centre to their collection vehicle. + Notify the NSW EPA Pollution Line on 131 555 should air quality be of concern either from vehicles or other such source that may be constituted as a pollution incident. Note: The Protection of the Environment Operations Act , 1997 outlines the duty to notify of pollution incidences. + The air quality monitoring requirements are to be incorporated into the Childcare Centre's Plan of Management, a copy of which is to be provided to Council prior to the issue of the Occupation Certificate.

55 Being clearly alive to the issue of vehicle emissions (at [14]) and given the generalised way in which the contention was raised before the Commissioner and the subsequent imposition of the consent conditions by her to ameliorate their impact, I readily infer that the Commissioner reached the level of satisfaction referred to in cl 101(2) of the SEPP.

56 On the issue of the Commissioner's consideration of traffic noise, a similar inference may be drawn. While in comparison to the deliberation the Commissioner gave to the impact of the proposal due to noise on the amenity of the existing and proposed dwelling at No 112 Frenchs Forest Road (see at [63]-[66]) it could be said that only modest consideration of impact of the traffic noise on the suitability of the site as a childcare centre was afforded by her (at [69]), this was again reflective of the manner in which the issue was raised before the Commissioner. This was because noise concerns, other than those relating to the impact of the proposal on the amenity of nearby residences, were ultimately resolved on the evidence before the Commissioner.

57 Both Mr Challis (for the council) and Mr Gross (for BSDI) were in agreement as to the likely levels of traffic noise and the acceptable range of measures that could be imposed to address any concerns. No suggestion was made by either expert that the traffic noise level both internal and external to the centre would be unsatisfactory, provided suitable conditions were imposed requiring the windows facing the road to be closed and the internal areas to be air conditioned (the latter condition was in fact imposed by the Commissioner: see consent condition 5 above). For example, when questioned about the issue of traffic noise by the Commissioner, Mr Challis said: Q. So you're satisfied that the noise in those playground areas then is-- A. Compliant.

Q. --compliant? And when you say compliant, what's the-- A. Compliant is that the LEP should be about 55 dBA.

Q. And that's based on traffic volumes today? A. No. It's taking into account future traffic volumes because traffic will increase on that road both at peak hours and, more pertinently, at off peak hours when the children are more likely to be affected.

58 Similarly, Mr Darroch (for BSDI) and Mr Cother (for the council) jointly resolved that if adequate ventilation and increased natural light to the lower ground floor could be provided, then the impact of the traffic noise could be adequately mitigated.

59 It was no doubt because of the agreement reached by the parties' experts that the submissions put by the council to the Commissioner in closing did not rise any higher than that she had "to be satisfied that it's a type [of development] that is not sensitive to traffic noise", to which the council made the bare assertion that it was not.

60 Nonetheless, the Commissioner was bound to consider the impact of the traffic noise and had to be satisfied, as the consent authority, that the childcare centre was a proposal that was not unsuitably sensitive to traffic noise.

61 After having referred specifically to the issue of traffic noise (at [14]), the Commissioner noted in her assessment and findings that "the site itself is dominated by the road and noise" (at [61]). Later she again expressly referred to the issue of the "noise associated" with the site being "located adjacent to busy roads" (at [69]). On balance, the inference to be derived from the Commissioner's reasons is that she accepted the uncontroversial evidence of the parties' experts that, subject to the imposition of suitable ameliorating consent conditions, the traffic noise was acceptable and that its impact would not justify a refusal of the development application. Given the furious agreement of the parties' experts in relation to the impact of the traffic noise on the proposed childcare centre, the Commissioner's consideration of this issue, implicit in these two references, and the expression of 'satisfaction' that followed was, in my opinion, sufficient in all of the circumstances.

62 In Design Power Lloyd J stated (at [38] - [39]) the following: 38 The council argues that s 79C of the EP&A Act nevertheless mandates consideration of the relevant environmental planning instruments. However, in Segal v Waverley Council (2005) 64 NSWLR 177, the Court of Appeal drew a distinction between administrative decision-making at the level of executive or local government, and a dispute-resolver such as a judge or other judicial or quasi-judicial officer (such as a commissioner of the Land and Environment Court), who is called upon to decide issues raised by the parties in adversarial litigation. In that case Tobias JA (Beazley and Basten JJA concurring) said at [42]: In the Land and Environment Court the litigation is adversarial in nature. The parties are opposed to each other and issues are joined between them. In such cases, " the merits of any particular application depend upon the facts and circumstances of the case and the substantive issues joined between the parties "

39 In Segal it was held that a commissioner of the Land and Environment Court is only "bound to address the principal contested issues that were joined between the parties" (at [44], [99]), or "the principal, central or critical issue the subject of the contest between the parties" (at [45], [69], [92]). In so holding the Court of Appeal applied Mifsud v Campbell (1991) 21 NSWLR 725, in which it was held (by Samuels JA, with Clarke JA and Hope A-JA concurring) that it was an incident of the judicial duty to give reasons to record the evidence and findings thereon which are critical to an issue in the case. As noted above, however, the council does not even now contend that anything in those instruments would justify a refusal of the development applications. In that event it could not be said that those instruments are critical, neither did they raise any contested issue which called for a reasoned consideration and findings thereon.

63 Given the effective evidential resolution of the issue of traffic noise, it cannot now be contended by the council that this was a "critical issue the subject of contest between the parties" warranting a detailed analysis by the Commissioner. To the extent that the Commissioner was required to give it consideration, in my view, she did so. To the extent that the Commissioner was required to be satisfied that the development was of a type that was either "not sensitive to traffic noise… or is appropriately located and designed, or includes measures, to ameliorate potential traffic noise" (cl 101(2)(c)), again, in my opinion, she did so. It therefore follows that I dismiss grounds 1 and 2.

Grounds 3 and 4: Did the Commissioner take Into Account the Zone 2 Objectives in Clause 10 of the LEP and Was She Satisfied That the Carrying Out of the Development Was Consistent With These Objectives?

64 The council submitted that cl 10 of the LEP was a provision which required satisfaction prior to the grant of consent. In particular, it contended that the Commissioner was required to be satisfied that the carrying out of the development was consistent with the objectives of the 2(a) zone.

65 Leaving aside the fact that the council's submissions misstate the mental state required by the Commissioner - cl 10(3) of the LEP states that the consent authority must be "of the opinion that the carrying out of the development is consistent with the objectives of the zone" (emphasis added) - it was not a matter of controversy that the Commissioner was bound to take into consideration the LEP pursuant to s 79C(1)(a)(i) of the EPAA.

66 At paragraphs [16]-[19] of her judgment the Commissioner expressly set out and discussed the aims and objectives of the LEP in relation to the proposed development. She stated: 16 The subject site is zoned residential known as zone No. 2 under the Manly Local Environmental Plan 1988 . The aims and objectives of the plan relevantly include: to ensure that new development does not detract from the very special visual quality of the municipality.

17 Clause 10 requires that consent shall not be granted to the carrying out of development unless in the opinion of the consent authority the development is consistent with the objectives of the zone.

18 The objectives of the zone relevantly include: (d) to ensure the building form, including alterations and additions does not degrade the amenity of surrounding residents or the existing quality of the environment. (f) to allow development for purposes other than housing within the zone only if it is compatible with the character and amenity of the locality. (g) to ensure full and efficient use of existing social and physical infrastructure and the future provisions of services and facilities to meet any increased demand.

19 The heritage provisions are contained in clauses 18 to 20 of the LEP and the standard heritage provisions require that consent shall not be granted unless the carrying out of the development will not impact on the heritage item and its setting. (clause 19) 67 The council submits that the Commissioner erred by failing to consider zone 2 objectives (b), (d), (e), (f), (g) and (h).

68 In order to determine these grounds of appeal, again an examination of the conduct of the parties at the hearing before the Commissioner is required. A review of the transcript clearly reveals that the council identified to the Commissioner on the first day of the hearing only objectives (d), (e) and (f) as "the relevant ones". This was consistent with paragraph 1 of the council's statement of facts and contentions and its closing submissions, where the council referred the Commissioner to the "opening submissions and the evidence of Mr Cother". Accordingly, having narrowed the issues for determination before the Commissioner, the council cannot now complain of a failure of the Commissioner to consider the remaining objectives in the LEP which were not in issue before her, namely, (b), (g) and (h).

69 The issue, therefore, is whether the Commissioner considered objectives (d)-(f) and formed the necessary opinion as to the development's consistency with these objectives.

70 In my opinion, each of the three objectives was considered by the Commissioner. First, objective (d) related to the built form of the development and the surrounding environment. The Commissioner considered the built form and its impact on the neighbouring properties and found that she was "satisfied that the proposal will not present an unreasonable bulk or scale to this property and the built form provides an appropriate relationship with this residential neighbour" (at [63]. She reiterated this conclusion at [69]. See also [24], [31]-[33], [36]-[40], [46], [50], [52], [63]-[67] and [76]). On this basis I find that the Commissioner took into account this objective and formed the requisite opinion.

71 Second, objective (e) concerned the quality of the residential areas by encouraging landscaping and permitting greater flexibility of design in new developments. The Commissioner discussed the expert evidence concerning open space and landscaping benefiting the residential area and formed the opinion that "the built form of the child-care centre provides an appropriate fit with the residential area and the proposed landscaping will provide a limited satisfactory contribution to the area" (at [67]. See also at [42], [47], and [69]). This was reflected in the imposition of consent condition 80 which requires landscaping in accordance with a landscape plan attached to the development consent. I therefore find that the Commissioner both considered and formed the necessary opinion that the proposed development was consistent with objective (e) of cl 10 of the LEP.

72 Third, objective (f) concerned the compatibility of the development with the character and amenity of the locality. The Commissioner considered the expert evidence in relation to the character of the building as against the neighbouring properties (at [31], [33], [36], [39]-[42], [46], [50], [52]-[54], and [63]-[67]). The Commissioner expressed her opinion that the proposal was "an appropriate fit with the residential area" (at [67] and see also at [69]). It therefore follows that any complaint in respect of the Commissioner's consideration of objective (f) must be dismissed. 73 I have also formed the view that although not relevantly pressed before the Commissioner, a fair reading of the Commissioner's decision reveals that she considered objectives (b), (g) and (h) of cl 10 of the LEP. See, for example, the discussion by the Commissioner at [67], [75] in relation to objective (b). In relation to objective (g), the road and footpath infrastructure were the only two existing physical infrastructures relevant to the development and were considered at length by the Commissioner as discussed above under grounds 1 and 2. With respect to objective (h), this was considered by the Commissioner at [67], [69] and [70].

74 Finally, the council submitted that the reference at [61] to the Commissioner turning her mind to the question of whether the site was "suitable on a merits assessment" is to be interpreted as a misconstrual by the Commissioner of her obligation under cl 10 of the LEP to form an opinion as to the consistency of the proposed development with the objectives of the zone. I do not agree.

75 When the decision is read both against the objectives listed in cl 10 and in its totality having regard to the manner in which it was conducted by the parties, it is clear that the Commissioner has formed the necessary opinion provided for in the LEP. I accept the submission of the respondent in this regard that "when the judgment as a whole is read, it is plain that is a shorthand way of saying that the abovementioned objectives are in the circumstances satisfied in the Commissioner's opinion."

76 For these reasons it follows that I dismiss grounds 3 and 4.

Ground 5: Did the Commissioner Fail to Give Adequate Reasons?

77 There is no doubt that a failure to give adequate reasons may amount to an error of law (Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 277 and see Village McEvoy at [26]-[27]). However, in light of the reasons I have given for dismissing grounds 1-4, it is necessary for me to consider this ground of appeal only briefly.

78 It follows from the discussion above that in my opinion the Commissioner gave adequate reasons for attaining the mental state referred to in cl 101(2) of the SEPP and cl 10 of the LEP.

79 In particular, in relation to the Commissioner's reasons for satisfaction in relation to the traffic noise issue, the Commissioner's finding in this regard (particularly at [69]) must be read not only in the context of her decision as a whole but in the context of the conduct of the proceedings by the parties.

80 The content of the requirement to furnish reasons varies according to the nature and circumstances of the case and the manner in which it is conducted. In the present case, the limited significance the traffic noise issue assumed once evidential consensus was achieved on the likely level of traffic noise impacting upon the development and its proposed amelioration was mirrored by the fleeting emphasis given to it in closing submissions by the council, and both explains and justifies the limited consideration devoted to it in the decision of the Commissioner. Given these circumstances I find that the Commissioner's reasons were adequate.

Conclusion and Orders 82 In my opinion, the Commissioner was not bound to do more than that which she did, namely, decide the council's contentions in the manner in which they were presented to her. The issues put before the Commissioner coincided with the subject-matter of cls 101 and 10 of the SEPP and LEP respectively. To the extent that these issues ultimately proved to be contentious, the Commissioner considered them and either formed an opinion or was satisfied that consent ought to be granted for the carrying out of the development. This was sufficient.

83 Accordingly, having regard to the way the case was conducted before her, in my opinion, the Commissioner did not err and the appeal must be dismissed.

84 The formal orders of the Court are therefore: (1) the appeal is dismissed;

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.

CITATION : Manly Council v BSDI Pty Limited [2010] NSWLEC 31

Bankstown City Council v Mohamad El Dana [2009] NSWLEC 68 BSDI Pty Ltd v Manly Council [2009] NSWLEC 1067 CASES CITED: Design Power Assocs Pty Ltd v Willoughby City Council (2005) 148 LGERA 233 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 The Village McEvoy Pty Limited v Council of the City of Sydney (No 2) [2010] NSWLEC 17

(2005) 148 LGERA 233

At a glance

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Judgment (121 paragraphs)

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Cases Cited (8)

Cited By (3)