Martin & Spork Pty Ltd v South Sydney City Council

LEGISLATION CITED: Land and Environment Court Act 1979 s 56A

DATE OF JUDGMENT DELIVERY: 07/02/1999

APPLICANT Mr W R Davison SC

SOLICITORS Clinch Neville Long LEGAL REPRESENTATIVES: RESPONDENT Mr P J McEwen SC

SOLICITORS Pike Pike & Fenwick

JUDGMENT: IN THE LAND AND 10606 of 1998 ENVIRONMENT COURT Pearlman J OF NEW SOUTH WALES 2 July 1999

MARTIN & SPORK PTY LTD Applicant v SOUTH SYDNEY CITY COUNCIL Respondent JUDGMENT

This is an appeal from the decision of the Senior Commissioner granting development consent subject to conditions in respect of a development proposed for Nos. 196 - 214 William Street, Woolloomooloo ("the site").

The appeal is brought under s 56A of the Land and Environment Court Act 1979, and is confined to determining if there was an error of law in the decision.

The council's ground of appeal is that the Senior Commissioner erred in law in failing to give sufficient or any reasons for his decision in regard to a issue central to the case, namely, the issue of floor space ratio.

In the "Final Statement of Issues" filed by the council, the floor space ratio ("FSR") was included in issue number 1 which was as follows: 1. Whether the application complies with South Sydney Development Control Plan 1997 in relation to maximum floor space ratio and maximum building height.

South Sydney Development Control Plan 1997 ("the DCP") applies to the site. It deals with "building envelope" in pt E, and provides that "[F]loor space and height controls in this DCP are intended to allow development that will enhance the character and built form of the City …" .

The FSR control is dealt with in the DCP (at p E-23) as follows: The relationship between the total amount of floor space proposed to the total area of the site may be expressed as a ratio. This ratio is called a floor space ratio (FSR). It is used to indicate the intensity of the development.

To control the floor space of new development to ensure its intensity respects and reflects the overall built form and does not detrimentally affect the amenity of the area.

The FSR map attached to the DCP showed a maximum FSR for the site of 4:1.

The FSR issue was addressed in the statements of evidence of experts called on behalf of both the council and the applicant, and was adverted to in opening submissions on behalf of the council as well as in oral evidence given by various witnesses. Mr McEwen SC, for the council, submitted that it was also an issue implicit in submissions made by a number of objectors.

The Senior Commissioner's decision was given ex tempore at the close of a hearing conducted over three days. It is necessary to refer to it at some length.

After describing the proposed development, and the surrounding area of the site, the Senior Commissioner said: It appears to me that the height and floor space ratio controls that are in the recently adopted Development Control Plan could be seen as no novelty and have in various forms been incorporated in earlier instruments ….

As I say, the most relevant planning instrument in this instance, going to the form of the development, is a DCP that was adopted in 1997.

He then described the process of adoption of the DCP and the public participation in that process. He continued as follows: Notwithstanding the mass of evidence that has been presented to the Court, I have come to the conclusion that, in the end, there is a real and substantive issue for me to deal with: That goes to the height of the development application. There have been subsidiary arguments about the objectives that floor space ratios should be seen as involving. Notwithstanding the exceedance of the development control plan standard of 4:1, what this all seems to be to be associated with is concerns with the apparent bulk and evident height of the development when seen in the context of its surroundings and William Street in particular.

With regard to the floor space ratio issue, it seems to me that, given the slope of the land away from William Street and the extent to which the disputed floor space involves additional excavation, this connection sought to be established by the Council could only be seen as tenuous. In any case given that the space involves the storage of cars which might be described as parking required for a particular business, the council's interpretation of the definitions of floor space in their own development control plan seem to me to be potentially arguable in any case.

In the ultimate, it seems to me that what I should be much more concerned with is the physical appearance of the building and its impact on its surroundings and in particular its impact on William Street …

Shortly I have come to the conclusion that this building as currently proposed is too tall.

As I say, that should not be taken as a criticism of the design per se. It seems to me that it is a very respectable design but that notwithstanding, the height of it is of considerable importance in the context of William Street and something that I consider to be excessive as it presently stands. 12. The Senior Commissioner went on to conclude that one storey should be deleted from the proposed building, and that otherwise it was " an acceptable proposal". He granted development consent subject to the deletion of level four of the proposed building causing a reduction in height of 2.67metres.

It is well settled that there is a judicial duty to state the ground or grounds upon which a decision rest, and that failure to do so amounts to an error of law ( Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247). The duty extends to expressing findings upon issues which are critical to the case ( Mifsud v Campbell (1990) 21 NSWLR 725).

In Soulemezis v Dudley , McHugh JA (as he then was) explained (at p 279) that the duty to give reasons serves three purposes. First, "it enables the parties to see the extent to which their arguments have been understood and accepted as well as the basis of the judge's decision". Secondly, it furthers judicial accountability, in that it constrains the judiciary's exercise of power. Thirdly, it provides a basis for ascertaining how like cases will probably be decided in the future.

To these purposes, Samuels JA (as he then was) added another, in Russell v F J Walker Pty Ltd (Court of Appeal, 10 February 1989 unreported). At p 7, his Honour said that the "… necessity to explain why a judicial officer arrived at a particular conclusion sharpens professional ability and avoids loose thinking and unjustified assumptions which have no footing in the evidence. The need to give reasons, like an imminent hanging, concentrates the mind" .

It is, however, important to bear in mind, as Lloyd J pointed out in Flevaris and Anor v Hurstville City Council (7 August 1998, unreported) at par 10, that the duty of a judge to disclose reasons for a decision is more onerous than that imposed on a lay commissioner.

The proper approach to the decision of a commissioner of this Court was set out by Kirby P (as he then was) in Brimbella Pty Ltd v Mosman Municipal Council (1993) LGERA 367 at 368 in the following passage: … it is undesirable in an appeal from a lay tribunal, where the appeal court is confined to a question of law, that it should examine too narrowly the words used in the decision, at least unless these words are central to the decision involved.

Here, the parliament has specifically envisaged a tribunal which included lay assessors. It would be quite wrong, in my opinion, for this Court to examine their decisions as if they were written by a lawyer. I am not, by these comments, suggesting double standards; simply that the Court should take into proper account the composition of the tribunal, as it has been created by the parliament. A breach of the duty to give reasons?

A fair and careful reading of the judgment and in particular the passages I have quoted reveals, in my opinion, the Senior Commissioner's treatment of the FSR issue, and the reasoning which led to his conclusion in respect of that issue.

The Senior Commissioner recognised that the FSR control was an issue. He noted that it was adopted in DCP 1997, and that the ratio had been set at 4:1.

He then proceeded to consider its application. He referred to "the objectives that floor space ratios should be seen as involving" , and noted that the maximum FSR was exceeded. He then drew the conclusion that these objectives were "associated with concerns with the apparent bulk and evident height of the development when seen in the context of its surroundings and William Street in particular" . That conclusion is more readily understood in the light of the express requirement of the DCP to apply the FSR to control the intensity of the proposed development and its effect on the amenity of the area.

21 . The next passage in the judgment reflects a dispute between the parties as to the inclusion of particular car parking space in the FSR calculations. In that context, the Senior Commissioner made a finding that the proposed development involved additional excavation as well as a sloping site, and he noted that the particular space was to be used for the storage of cars of a particular business. It is implicit in those findings, I believe, that the Senior Commissioner was rejecting the inclusion of car parking space in the FSR calculations. It is in the light of that rejection that his conclusion must be understood, namely, that the council's position in regard to the dispute was "tenuous" and "arguable" .

The following passage in his judgment reflects the Senior Commissioner's approach to the FSR control which he had earlier adopted, that is, its application involves concern with the "physical appearance of the building and its impact on its surroundings and in particular its impact on William Street" . Ultimately, he concluded that the development as proposed "is too tall" .

The language used by the Senior Commissioner is cryptic, and there is no doubt that his reasoning could have been better articulated. But in my opinion his reasoning and conclusions are disclosed. He considered that, despite arguments about the precise basis for the calculation of the FSR, the application of the FSR control was essentially about bulk and height in the context of the impact on the surrounding area, and he found the design of the proposed building to be excessive in that context.

Since the Senior Commissioner's ultimate conclusion was that development consent should be granted subject to the removal of one storey of the proposed development, I have considered whether, in the passages of the judgment to which I have referred, the Senior Commissioner was in reality dealing only with the height control in the DCP and not with the FSR control. I have concluded that, in those passages, he was considering only the application of the FSR control, although his ultimate decision was based on an infringement of both the FSR control and the height control, since, in his view, the objective of the FSR control was bulk and height.

Mr McEwen submitted that the Senior Commissioner failed to address four specific aspects of the FSR issue. First, it was said that he failed to address the relevance of the FSR control in relation to density/intensity of development. I reject this submission. As I have pointed out, the Senior Commissioner approached the FSR control as a matter of bulk and height, and that seems to me to relate to the density or the intensity of the proposed development.

Secondly, it was said that the Senior Commissioner failed to address the relevance of the FSR control, when coupled with the height control, relative to density/intensity. For the same reason, I also reject this submission. The definition of FSR in the DCP states that it is used to "indicate the intensity of the development" , and it goes on to state that the objective of the FSR control is "to ensure its intensity respects and reflects the overall built form and does not detrimentally affect the amenity of the area" . The Senior Commissioner addressed the FSR control as a matter of the bulk and height of the proposed building and its impact upon the surrounding area.

Thirdly, it was said that the Senior Commissioner failed to determine what the appropriate calculation of FSR ought to have been. It is true that the Senior Commissioner did not make a finding as to the appropriate calculation of FSR, but he did make findings as to the matters which he thought were not relevant to its calculation, rejecting the council's approach to the calculation of the FSR as "tenuous" and "arguable" .

Fourthly, it was said that the Senior Commissioner failed to address what role the FSR argument played or ought to have played in the deliberative process. I confess to a lack of understanding of what this submission means. If it means that the Senior Commissioner failed to address the FSR issue, then it is wrong. If it means that he failed to disclose what part that issue played in his final conclusion to grant consent to the proposed development minus one storey, then it is also wrong, because he set out, albeit cryptically, a line of reasoning which demonstrated, that in his opinion, in the context of the objectives of the FSR control, the proposed building was excessive and required a height reduction.

It follows from my conclusion that the Senior Commissioner did give reasons for his conclusions about the FSR issue, and that there was no error of law. Accordingly, the appeal must be dismissed.

My formal orders are as follows: (1) The appeal is dismissed.

(2) The respondent must pay the costs of the applicant as agreed or as assessed.

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