Maygood Australia Limited v City of Sydney Council

Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430; Carstens v Pittwater Council [1999] NSWLEC 249; Kira Holdings v Liverpool City Council 132 LGERA 97; Maygood Aust Pty Ltd v City of Sydney Council [2006] NSWLEC 423; Maygood Australia Pty Limited v City of Sydney Council [2007] NSWLEC 157; CASES CITED: Nominal Defendant v Kostic [2007] NSWCA 14 ; PDP (Darlinghurst Apartments) Pty Ltd v City of Sydney Council [2005] NSWLEC 41; Randall Pty Ltd v Willoughby City Council 144 LGERA 119 ; Randwick City Council v Manouski 66 LGRA 330; Segal v Waverley Council (2005) 64 NSWLR 177; Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208; Zhang v Canterbury City Council (2001) 51 NSWLR 589

DATES OF HEARING: 25 June 2007 26 June 2007

APPLICANT Mr M Craig QC with Mr P Tomasetti SOLICITOR LEGAL REPRESENTATIVES: DC Balog & Associates RESPONDENT Mr A Galasso SC SOLICITORS Maddocks

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10965 of 2006 Maygood Australia Limited v City of Sydney Council

JUDGMENT 1 Her Honour: This is a section 56A appeal under the Land and Environment Court Act 1979 from the decision of Commissioner Watts in Maygood Australia Pty Limited v City of Sydney Council [2007] NSWLEC 157 dismissing the Applicant's appeal. There is a description of the proposed development and the site and surrounding area in [1], [4] - [10] of the Commissioner's judgment. The site is within the Barcom Avenue Conservation Area in Darlinghurst, Sydney.

2 The relevant planning instruments were identified at [11] - [14] of the judgment as follows: South Sydney Local Environmental Plan 1998, (SSLEP) 11. Under the provisions of the SSLEP the land is zoned and the proposal is permissible with consent.

12. The telephone exchange on the land at the time of the hearing was not individually heritage listed. The land is located at the western edge of the Barcom Avenue Conservation Area.

13. On 2 January 2007, the City of Sydney Heritage Development Control Plan 2006, (SHDCP2006) repealed the South Sydney (Heritage Conservation) Development Control Plan 1998 (SSHCDCP1998).

14. Other relevant planning instruments are: · State Environmental Planning Policy 55 - Remediation of Land. · State Environmental Planning Policy No. 65 - Design Quality of Residential Flat Development. · South Sydney Development Control Plan (Urban Design) 1997, (UDDCP1997). · Sydney City Council Residential Amenity Policy (Part 6 Central Sydney DCP 1996). · South Sydney Development Control Plan No. 11 Transport Guidelines for Development 1996. · City of Sydney Access Development Control Plan 2004. · City of Sydney Contaminated Land Development Control Plan 2004. · City of Sydney Draft Policy for Waste Minimization in New Developments 2005.

3 The history of the site including two previous Class 1 appeals heard by this Court in PDP (Darlinghurst Apartments) Pty Ltd v City of Sydney Council [2005] NSWLEC 41 and Maygood Aust Pty Ltd v City of Sydney Council [2006] NSWLEC 423 were referred to at [15] - [21] of the judgment.

4 Paragraph 30 of the judgment sets out the statement of issues identified in the matter by the Council as follows: 1. The proposed additions represent over-development of the site and results in adverse impact upon the streetscape, character of the area, and upon the appearance and integrity of the existing building. Particulars (a) The height of the proposed development, at 33.9 metres, does not comply with the 18-metre height control (Refer: Part E Section 2 of the South Sydney Urban Design Development Control Plan 1997). (b) The proposed floor space ratio, at 5.12:1, does not comply with the 2:1 FSR control (Refer: Part E Section 2.2 of the South Sydney Urban Design Development Control Plan 1997). (c) The proposed setbacks to the west (Little Surrey Street) and south (Liverpool Street) are insufficient (Refer: Part E Sections 2.3 and 2.4 and Part F Section 2.2.2 of the South Sydney Urban Design Development Control Plan 1997). 2. The proposed, development adversely impacts upon the heritage significance of the existing building. Particulars (a) Due to the lack of sufficient setbacks, particularly upon the southern and western elevations, the bulk of the proposed addition will overwhelm the existing building upon the site (Refer Section 4.1.3 of the South Sydney (Heritage Conservation) Development Control Plan 1998). (b) The proposed alterations to the facades of the existing building will have an adverse impact upon the character and significance of the building, particularly with regard to the removal of the hoist and doors, and alterations to the existing windows (Refer Clause 22(e) and (f) of the South Sydney LEP1998 and Sections 4.1.3 and 4.1.4 of the South Sydney (Heritage Conservation) Development Control Plan 1998). 3. The application lacks sufficient information essential to the assessment of the proposed development. Particulars (a) A Site Audit Statement certifying that the land is suitable to accommodate the intended proposal, as required by SEPP55 Clause 7. (b) A 3D CAD model to specifications as required within the City of Sydney's document 'Specification for 3D CAD Model Submission' of July 2006. 5 Paragraph 31 states: The heritage impact of the proposal was the salient issue. Height and bulk were related issues.

6 The Commissioner referred to heritage at [41] - [55] and height and bulk at [56] - [62] and made findings which caused him to refuse the Applicant's development application. 7 Five grounds of appeal were identified in opening by the Applicant's counsel as follows, and to the extent these vary from those identified in the Notice of Motion filed 24 April 2007 the Applicant advised the former are relied on. Ground 1 - failure to take into account/give proper consideration 8 The Applicant argued there was a failure to take into account/give proper consideration to three instruments which were mandatory to take into account under s 79C of the Environmental Planning and Assessment Act 1979 (the EP&A Act), relying on Zhang v Canterbury City Council (2001) 51 NSWLR 589 per Spigelman CJ at [60] - [77]. The instruments were: (a) State Environmental Planning Policy No. 65 - Design Quality of Residential Flat Development (SEPP 65) - there is no reference in the judgment apart from in the list of relevant instruments at [14]. There is no reference at all in the judgment to evidence from the Applicant, which it is agreed was in the Applicant's tendered bundle of documents, to a SEPP 65 Residential Flat Design Code assessment by Mr Koo, architect. The Applicant argued that SEPP 65 was an essential matter which, by virtue of cl 30(2)(b) and (c), had to be explicitly referred to as a relevant legal matter by the Commissioner because the development application involved a residential flat building. Clause 6 of SEPP 65 to the effect that the SEPP applied if inconsistent with any other instrument was also relied on. (b) Sydney Heritage Development Control Plan 2006, (SHDCP2006) - there is inadequate reference in [55] in addition to appearing in the list in [14]. (c) South Sydney Development Control Plan (Urban Design) 1997, (UDDCP1997) - there is inadequate reference in [56], [57] and [61] in addition to appearing in the list in [14]. 9 Consequently there is a failure to consider these instruments a "focal point" of decision-making as required by Zhang. 10 The Council argued that there was no obligation to refer to SEPP 65 Residential Flat Design Code given that the Commissioner decided the matter on the basis of heritage impact on the Barcom Avenue Conservation Area, inter alia. SEPP 65 was raised in closing submissions by the Applicant's counsel on the matters of building separation (p 28 exhibit K) and visual privacy (p 58 exhibit K). Neither issue was material to the Commissioner's decision to refuse consent and therefore there was no need to refer to these two issues in the judgment. 11 SHDCP2006 referred to was considered in argument by the Commissioner. There is no requirement that the particular provisions be set out. Perfection of a judgment is not required. 12 The numerical provisions of UDDCP1997 are set out at [56], [57] and a performance approach is clearly taken by the Commissioner at [58] - [60]. There is no error of law demonstrated by the judgment. Ground 2 - failure to give any reasons/failure to give adequate reasons 13 The Applicant argued that there was a failure to give any or proper reasons as required by law for a judicial officer because: (a) there was no identification in the judgment of competing evidence given in favour of the Applicant's development by Mr Koo, architect and director of the Applicant and Mr Newbold, planner (b) there was no reference to the joint planners' report in the judgment, (c) there was only limited reference to the heritage experts' joint report. 14 The Applicant relied on Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430 and Segal v Waverley Council (2005) 64 NSWLR 177 [93], [94] which inform his conclusions at [99] in relation to the obligation to provide adequate reasons. 15 The Council argued that none of the decisions relied on by the Applicant require the level of perfection required by the Applicant's submissions. Further argument is set out in my findings because I accept the Council's arguments on this ground (as on the others). Ground 3 - failure to accord procedural fairness 16 The Applicant alleged that because the Commissioner decided that he would not adopt the views contained in the heritage and planners' joint expert reports which were agreed, there was an obligation to tell the parties that at the hearing or afterwards if the decision was reserved so that they could respond. 17 The Council argued that there was no failure to accord procedural fairness. Ground 4 - the decision was manifestly illogical or unreasonable 18 The Commissioner's decision was illogical or unreasonable because it did not identify the material referred to in the hearing necessary to support his conclusions on heritage impacts. The Applicant's arguments were directed to [31], [48], [52] - [54] of the judgment in light of the issues identified in [30]. 19 The Council argued that there was no illogicality or unreasonableness in the reasoning. The Commissioner identified the heritage issues as he considered these were presented by the parties, and as identified in the joint report of the heritage experts. That included the heritage impact on the building on the site and beyond the site on the Barcom Avenue Conservation Area.

Ground 5 - taking into account irrelevant matter 20 The Applicant relied on [39] of the judgment which records incorrectly that there was an agreement between the parties that there is an adverse heritage impact from the top of the Caldwell steps within the heritage conservation area. 21 The Council argued that there was no indication in the judgment that the erroneous agreement identified in the first part of [39] was taken into account. Further, an "illogical" result does not constitute an error of law; Randwick City Council v Manouski 66 LGRA 330. Council's general submissions 22 I have set out briefly the Council's response to the separate grounds above. Further general submissions were made. The Applicant's case takes a fine tooth comb approach to the appeal, which is not the correct approach. The whole of the judgment should be considered in its entirety. When this is done it is clear that the Commissioner has provided adequate reasons for his decision to dismiss the appeal because of the impact on heritage values within and beyond the site due to the height of the proposed development. The Commissioner identifies this as being four floors too high in the Barcom Avenue Conservation Area. 23 Importantly the Applicant cannot point to any matter which, if referred to by the Commissioner, would have been likely to lead to a different outcome in that if taken into account it would have caused the Commissioner to change his view; (matter C identified in [43] by Tobias JA in Segal). The evidence of the experts was within the expertise of the Commissioner. He referred to the numerical limits in the UDDCP1997 at [56], [57] and then applied a performance based approach at [58] and [59]. He was well aware of the PDP decision of Talbot J which referred to the performance based approach identified in that DCP and refers to that decision at [60]. Finding 24 Given that the Applicant argued its case by going through virtually every paragraph of the Commissioner's judgment identifying supposed failings, not all of which were relevant to the grounds argued, the inference of a fine tooth comb approach immediately arises in my view. Many cases have identified that is not the correct approach to s 56A appeals, see Carstens v Pittwater Council [1999] NSWLEC 249 for one of many examples. This view is further reinforced by the approach of the Applicant in also reviewing at some length the two previous Class 1 decisions by this Court in a way that suggested the treatment of the issues in those judgments was better, an approach I reject, particularly as it was acknowledged that they had no precedent value in the approach to this matter which must be decided on its own merits. Both decisions are referred to by Watts C in his judgment specifically. He notes at [22] and [23] that he has reached a different conclusion to the second appeal (Maygood Australia Pty Ltd v City of Sydney Council [2006] NSWLEC 423 per Roseth C and Brown C) in particular, refers to his obligation to decide this application on its merits as specified in Segal and also notes that ideally each previous decision should be distinguished so that the Court's decision making is clear. He has done that in this judgment as already referred to and also with a subsequent reference to the previous decision of PDP when he makes findings, see [60]. 25 It has also been identified in numerous cases, some of which were referred to by the parties, that it is important on appeal to consider the judgment under appeal as a whole. If that is done in this case the reasons for the Commissioner's findings that the proposed development is four storeys too high are clear in my view, as submitted by the Council. The primary issue identified by the Commissioner is that of the impact on the heritage values on the existing "contributory" building on the site the subject of the application and of the proposed development on the surrounding Barcom Ave Conservation Area in which the site is located. That issue is clearly identified in the statement of issues identified at [30] and as refined by the Commissioner, as often occurs in the merit appeal process, at [31] and [48]. Heritage is considered by him at [41] - [55]. His consideration of bulk and height is in the context of heritage impacts at [56] - [62]. I do not agree with the Applicant's submissions that his decision in relation to heritage impacts confuses residential amenity issues. He considers residents' evidence in the context of heritage at [52] - [54] as he is required to do. He also states that the evidence of Mr Poulton, one of the heritage experts is accepted. 26 The matters dealt with in the UDDCP1997 and SEPP 65 are broad and largely overlap. Similarly the SHDCP2006 has broadly based controls. There is no obligation to consider every issue raised in a hearing where the appeal is determined on a particular ground or grounds. 27 In Segal Tobias JA identified relevant considerations in relation to the adequacy of reasons of Commissioners at [42] and [43] as follows: 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. The position of the Tribunal under the Migration Act (Cth) is essentially different. Accordingly, in my opinion, it does not necessarily follow that a Commissioner or judge of the Land and Environment Court is required to give reasons only with respect to his or her subjective thought processes in coming to their particular decision. Notwithstanding those thought processes, their duty to give reasons would be contravened if they failed to address an issue joined between the parties which, if decided in a particular way, would result in a different decision to that to which the Commissioner or judge has arrived. This, if issues A, B and C be joined between the parties and the Commissioner or judge only addresses issues A and B, he or she will have erred in law by failing to address issue C if the resolution of that issue in favour of one or other of the parties would have resulted in a different outcome to that arrived at upon a determination of issues A and B. On the other hand, if issue C would have had no bearing upon the outcome arrived at in accordance with the determination of issues A and B, then it need not be addressed. 28 Tobias JA also identified expansively the case law on the general duty to give reasons at [65] - [77], and provides his conclusions at [93], [94] [99] in the context of Class 1 merit appeals before this Court. I consider these observations and conclusions support the Council's submissions in the circumstances of this case. 29 This case is unlike the failure to give reasons by a judge on the determination of key factual issues considered by the Court of Appeal in Nominal Defendant v Kostic [2007] NSWCA 14 particularly Ipp JA at [2], [56] and [57] (Hodgson and Campbell JJA concurring). 30 When the whole of the judgment is viewed I consider that none of the Applicant's grounds of appeal should be upheld. The judgment is quite orthodox in approach and nothing erroneous is apparent. I agree with the Council's submissions as set out in par 22 and 23 above. I will also consider each of the individual grounds of appeal. Ground 1 - failure to take into account/give proper consideration 31 As identified by the Council's submissions, the substance of the instruments, said not to be referred to adequately, to the extent relevant in the context of this case were referred to. The heritage issues and the bulk and scale of the building in its context were clearly identified and the relevant DCPs identified. I adopt the Council's submissions set out at par 11 and 12 above. 32 There is no requirement that relevant instruments be referred to in precise detail as to the specific provisions if the absence of that detail does not detract from the overall giving of reasons in the judgment as a whole. That lack of detail does not give rise to any inadequacy in the reasoning process in my view. There is no failure to adequately consider the DCPs as is required by Zhang. 33 In relation to SEPP 65 being a relevant mandatory matter that has to be considered in relation to any merit assessment of a residential flat building in whatever context including heritage, I reject that argument. There is no requirement that SEPP 65 be considered before any other instrument, in this case the heritage and urban design DCPs. The proposal was rejected on the basis of those DCPs. There was no need for the Commissioner to refer to SEPP 65 and the Residential Flat Design Code assessment in relation to the design requirement before other instruments or as a matter of course in all cases involving residential flat buildings to which SEPP 65 applies no matter what the grounds for refusal in a merit appeal. 34 The limited basis on which SEPP 65 was identified as an issue in closing submissions set out above in the Council's submissions is at par 8. I also consider the issue as sought to be raised by the Applicant on this appeal was broader than the issue in relation to SEPP 65 identified before the Commissioner at the hearing. As identified in the issues set out at [30] of the judgment there is no reference to SEPP 65 as an issue raised in the proceedings. The argument therefore falls foul of the finding of Basten J in Randall Pty Ltd v Willoughby City Council 144 LGERA 119 at [19]. Only issues raised before the Commissioner are able to be agitated in a s 56A appeal. Ground 2 - failure to give any/adequate reasons 35 Mr Koo was the architect for the proposed development and a director of the Applicant who chose to provide statements in response to the joint expert reports of the heritage and planning experts and the statement of agreed facts. His evidence was allowed to be tendered at the hearing but the Commissioner expressly reserved until later the amount of weight he would give that evidence. He has not referred to Mr Koo at all in the judgment suggesting he has given it no weight. There is no obligation to refer to that material in my view, nor is there a failure to do so. 36 The evidence of Mr Newbold as contained in exhibits G and H referred to in [58] is referred to by the Commissioner. 37 The joint report of the planners sets out matters about which they agree and disagree. There is no specific issue identified by the Applicant, the lack of which in the judgment is material for the issues identified in the judgment. The Applicant agreed that there is no obligation on the Commissioner to adopt the findings of experts. 38 I also agree with the Council's submissions, by analogy to the reasoning of Tobias JA at [43] in Segal, that there is no issue C identified which had it been referred to by the Commissioner would have caused him to change his approach to issues A and B. I agree with the submissions of the Council that Beale and Segal do not require a judgment of perfection as required by the Applicant's submissions. The judgment satisfies the requirement for the giving of reasons so that the reasoning process is articulated. Ground 3 - failure to accord procedural fairness 39 As identified by the Council, precisely how this argument arises in this case is unclear because it is not stated what the matters agreed by the experts were which the Commissioner failed to identify to the parties to enable them to further respond. The parts of the joint expert report of the heritage experts were identified in the judgment at [41] - [47] in terms of agreed matters and [48] - [50] in terms of matters not agreed by those experts. There is not explicit reference to the agreement on setback identified in that joint report being the bullet point at the top of page 3 but setback is dealt with at [61] and [62] of the judgment in any event. 40 The failure to refer at all to the joint expert report of the planners was also relied on in relation to this ground. I consider the relevant issues as determined by the Commissioner, who has expertise in planning in any event, were referred to in the context of the heritage impacts. No issue can arise on this ground on planning matters. 41 A practical issue for many Class 1 appeals would arise if I were to accept the Applicant's submissions. When asked what happens if the Commissioner reserves his decision, as occurred in this case, to further consider his decision where he may not have decided the matter finally in his own mind on the day of the hearing, it was suggested there was an obligation to recall the parties to advise them that the Commissioner had formed a view that was contrary to an agreed joint position of experts called by the parties. This is presumably to give them further opportunity to address that view of a Commissioner. The practical implication for managing hearings would be considerable if there was such a requirement, which in my view there is not. Nor is there any case which supports this approach, including Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208, which the Applicant relied on. 42 In Seltsam Ipp JA (Mason JA concurring) referred to the general principle (at 78) that if the judge contemplates determining the case on a different basis to that presented by the parties he must inform them so that they have an opportunity to address that new issue. There is simply no basis to suggest that the Commissioner who is required to exercise his own judgment on a merit appeal taking into account the evidence from the parties has infringed that clearly well settled rule. Nor is such a requirement imposed by Kira Holdings v Liverpool City Council 132 LGERA 97 which dealt with a different factual circumstance in a s 56A appeal. The Applicant has not identified any matter which the Commissioner refers to which was not considered during the hearing and at the view. Ground 4 - illogical/unreasonable reasoning 43 I do not accept there is any illogicality in the Commissioner's reasoning process in relation to heritage matters as identified by him in [31] and [48] and as considered by him in [52] - [54] of his judgment. He has not confused residential amenity impacts with heritage impacts. It is clear that he has redefined the heritage issue to include the impact within the site and beyond the site in relation to the Barcom Avenue Conservation Area, the latter being an issue raised in the joint report of the heritage experts. The differing views of the heritage experts are set out at [49] and [50]. Ground 5 - taking into account an irrelevant matter 44 The Applicant argued that the Commissioner considered a matter that he stated was agreed between the parties but was not so agreed in relation to the first part of [39]. There can be no conclusion from reading the judgment that this matter was taken into account in such a way that the decision is vitiated as a result. Any such error is immaterial and no such inference arises when the judgment as a whole is considered particularly [54] where the Commissioner deals with the matter as if was not agreed in any event. 45 The Applicant fails on all the specific grounds in this appeal. I consider this appeal should be dismissed and that the Council should have its costs. Accordingly I make the following orders:

1. The Applicant's s 56A appeal is dismissed
2. The Applicant should pay the Council's costs of the s 56A appeal.
3. Exhibits may be returned.

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