McGinn v Ashfield Council

Land and Environment Court (NSW)|2011-05-04|Before: Biscoe J, Mr P

EX TEMPORE JUdgment 1This is a challenge to the validity of a development consent

FACTS 2The facts are largely uncontroversial. On 4 May 2010 the owner of the property at 15 Brunswick Parade, Ashfield ( the Property ) made a development application ( first DA ) for an additional detached house on the Property at the rear of the existing house. 3The street frontage of the additional dwelling is to Park Lane, which is at the rear of the Property and parallel to Brunswick Parade. The proposed additional dwelling has no apparent access to Brunswick Parade. It is relevant to note that the proposed additional dwelling is to have a private rear garden, just as the existing dwelling on the Property has a private rear garden. 4In May 2010 the first DA was notified in accordance with the Council's notification policy. 5In June 2010 the applicant, Ms Sophia McGinn, who resides next door to the Property, made a submission concerning the overlooking of her property from the proposed new dwelling. 6In June 2010 Council officers reported to the Council recommending approval. The Council's delegate granted the first development consent ( first consent ). 7In July 2010 the applicant commenced these proceedings challenging the validity of the first consent. 8On 8 September 2010 the owner of the Property made a second development application for a very similar dwelling on the Property ( second DA ). 9The next day the owner lodged with the Council a letter purporting to surrender the first consent. A Council officer expressed the view that it was not an effective surrender. Consequently, he lodged an effective surrender on 27 September 2010, which was accepted by the Council by letter that day. The Council then attended to notification of the second DA. 10On 23 November 2010 a Council officer's report on the second DA recommended conditional approval. 11On 23 November 2010 the Council resolved at a meeting to grant consent to the second DA ( second consent ). 12The Council filed a notice of motion to strike out the proceedings with costs because of the surrender of the first consent. 13This led to an amendment of the proceedings in December 2010. The amended proceedings thereby became a challenge to the validity of the second consent. 14In form, the relief claimed in the Further Amended Summons is irregular in that declarations 1-4 are really potential grounds for the declaration of invalidity sought. 15It is a reasonable inference that the surrender of the first consent occurred and the Council came to consider the second DA because of concern that the applicant's original challenge to the first consent would succeed. This is fortified by a Council file note of 9 September 2010. The note records that the Council told the Property owner it had engaged a solicitor in respect of the proceedings, that legal advice suggested that Council's planning report had not addressed certain sections of its development control plan in detail. The file note identified that one of the options open to the owner was to surrender the first consent. 16In the Further Amended Points of Claim filed in December 2010 four grounds for the invalidity of the second consent were advanced: (a)reasonable apprehension of bias; (b)failure to take into account a relevant matter; (c)error in making findings of consistency with the Ashfield Development Control Plan 2007 ( DCP ); and, (d)Wednesbury unreasonableness. 17At the hearing the applicant did not press the second ground.

PLANNING INSTRUMENTS 18The Property is zoned 2(a) Residential under the Ashfield Local Environmental Plan 1985 ( LEP ). Clause 13(1) provides: 13 Dwelling-houses-dual occupancy (1) Subject to subclauses (2) and (3), a person may, with the consent of the Council, within Zone No 2 (a), 2 (b) or 2 (c): (a) alter or add to a dwelling-house erected on an allotment so as to create 2 dwellings, or (b) erect 2 attached dwellings on an allotment, or (c) erect 2 dwelling-houses on an allotment, or (d) erect a second dwelling-house in addition to one already erected on an allotment, or (e) alter or add to a dwelling-house or to any other building erected on an allotment so as to create 2 dwelling-houses, if, but only if, not more than 2 dwellings will be on the allotment as a result of the development being carried out. 19Part A of the DCP deals with preliminary matters including the following: Variation of Development Standards Development standards aim to achieve the objectives of this DCP. It is also imperative for a development application to satisfy the objectives of this DCP. Mere compliance with the development standards will not necessarily secure approval for a development application. Where a variation is sought due to special circumstances, a development application must document the reasons and extent of the variation for Council's consideration. 20It is common ground that the "objectives" referred to in that provision insofar as they concern dual-occupancy dwellings, appear in the following provisions in Section 3 of Part C15 of the DCP: In order to avoid potential amenity problems for neighbouring properties attached dual-occupancies are preferred (mandatory in heritage conservation areas). This is because both dwellings can be designed to appear as one large dwelling, and there are no "isolated" houses placed where there would otherwise be rear gardens. Each dwelling can also have a front address and rear access to its own private garden. This fits in with the "pattern of development" and the "single house" look.

GROUNDS 21I turn to the grounds on which the applicant challenges the validity of the second consent, insofar as they are pressed.

Reasonable apprehension of bias 22The first ground is that the second consent is tainted by apprehended bias in the nature of prejudgment. 23The test of apprehended bias is whether a fair minded lay observer might reasonably apprehend that the decision-maker might not bring an impartial mind to the resolution of the matter: Ebner v Official Trustee in Bankruptcy [2000] HCA 63, 205 CLR 337 at [6] - [7]; McGovern v Ku-ring-gai Council [2008] NSWCA 209, 72 NSWLR 504. 24That test was developed in the context of a judicial decision-maker. A fair minded lay observer does not necessarily have the same expectations of an administrative decision-maker, such as a council, as of a judicial or a quasi judicial decision-maker. If a lay person did have those expectations they may not be reasonable: Mid Western Community Action Group Inc v Mid-Western Regional Council (No 2) [2008] NSWLEC 143at [26]. 25In McGovern the validity of a development consent was unsuccessfully challenged by neighbours of the developer on the ground of apprehended bias of two councillors whose vote did not make any arithmetical difference to the Council's decision. The question was how the apprehended bias test operated in relation to a development consent in accordance with statutory criteria of a local government authority constituted by elected councillors, which has a diversity of functions including the broadly political and those of an administrative decision-maker: at [75]. 26Basten JA said at [80]: ... The real question is what, with the appropriate level of appreciation of the institution, the fair-minded observer would expect of a councillor dealing with a development application. The institutional setting being quite different from that of a court, the fair-minded observer will expect little more than an absence of personal interest in the decision and a willingness to give genuine and appropriate consideration to the application, the matters required by law to be taken into account and any recommendation of council officers. 27As to prejudgment, Spigelman CJ said at [22] - [23] (omitting citations): A "fair and unprejudiced mind" is not necessarily a mind which has not given thought to the subject matter or one which, having thought about it, has not formed any views or inclination of mind upon or with respect to it. The "open to persuasion" test is an appropriate formulation for bias by pre-judgment, to which the dual "might" test of apprehended bias must be applied; that is, that an independent observer might reasonably apprehend that the decision-maker might not be open to persuasion. 28In McGovern Basten JA at [105] quoted from the judgment of Gleeson CJ and Gummow J in R v Commonwealth Conciliation and Arbitration Commission; Ex parte the Angliss Group (1969) 122 CLR 546 at 553: Those requirements of natural justice are not infringed by a mere lack of nicety but only when it is firmly established that a suspicion may reasonably be engendered in the minds of those who come before the tribunal or in the minds of the public that the tribunal or a member or members of it may not bring to the resolution of the questions arising before the tribunal fair and unprejudiced minds. 29Basten JA at [106] said: What that language means may depend upon the circumstances, but, rather than identifying a standard of proof, it may better be understood as requiring, not merely a vague assertion of suspicion, but "an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits." 30The background to the applicant's complaint in the present case is the voluntary surrender of the first consent and the submission of a second DA. The Council was, of course, aware that it had granted the first consent and that it had been surrendered at the time it granted the second consent. 31Against that background, the applicant relies on four related matters as evidence of prejudgment. First, the Council officer's report in relation to the second DA contained a recommendation that the Council approve development application No 10.2010.82.1. That was the number of the first DA. One of the proposed conditions was that the development be carried out in accordance with plans and specifications which supported the first DA. It appears that was an error in "cutting and pasting" from the earlier report to the Council in relation to the first DA. 32Secondly, the minutes of the Council resolution of 23 November 2010 granting the second consent contained a heading which referred to the second DA by its correct number and to the second DA Council officer's report. However, the body of the resolution referred to the number of the first DA. That is, it reflected the terms of the recommendation made by the Council officer in the second Council report. 33Thirdly, the Council's notice of determination of the second DA under s 81(1)(a) of the Environmental Planning and Assessment Act 1979 ( EPA Act ), although it correctly attributed a number to the consent which is the number of the second DA, incorrectly set out a condition that the development must be carried out only in accordance with the plans and specifications which supported the first DA. I take this to be a notice of determination under s 81(1)(a) because that statutory provision is referred to in its heading and it appears to be addressed to the applicant for consent, the owner of the Property. I reach that conclusion notwithstanding that its heading is "Development consent" and it says that the Council "hereby consents to". 34Fourthly, following the surrender of the first consent and the lodging of the second DA at a time when these proceedings were on foot, the Council filed a notice of motion seeking to have the proceedings dismissed with costs. 35The question is whether these circumstances lead to the conclusion of apprehended bias. 36The applicant submits that if the references to the first DA had only occurred once (in the report), that might not be sufficient to give rise to an apprehension of bias by prejudgment. The applicant submits that the repeated references to the first DA in the minutes and notice of determination do lead to a conclusion that the second consent was infected by apprehended bias. 37In my view, the following matters weigh against a conclusion of apparent prejudgment: (a)The first DA was determined under delegated authority whereas the second was determined by the Council at a Council meeting. So the councillors who approved the second DA had not previously considered the first DA; (b)the Council officer who wrote the report to the Council in support of the first DA was different from the officer who wrote the report to the Council in support of the second DA. (c)the two reports contain substantially different analyses, although their conclusions are the same; (d)it was in my view simply a poor attempt at cutting and pasting in the second report which led to its recommendation and one of its proposed conditions being referable to the first DA. That administrative error carried through to the terms of the Council's resolution and its notice of determination; (e)nobody who attended the Council meeting could have been in any doubt, in my view, that the intention of the Council was to approve the second DA. Indeed, these proceedings have been conducted on the basis that consent was granted to the second DA. (f)The Council's notice of motion for dismissal of the proceedings with costs is insufficient in my view to support a conclusion of prejudgment. 38Having regard to the totality of these matters, I am not satisfied that the ground of apprehended bias has been made out.

Error in forming positive opinion 39The second ground is that the Council erred in forming a positive opinion of consistency with the relevant objectives of the DCP, particularly because there was no evidence to support a conclusion that the second DA was consistent with the "single house look" objective of the DCP. 40The Council officer's report for the second DA stated under the heading "Summary Recommendation" as follows: The provision of a two storey detached dual-occupancy larger than 40 square metres, as opposed to an attached dual-occupancy, fails to comply with Section 3.3 and 3.4 of the Houses and Dual-Occupancies Development Control Planning (Part C15 of the Ashfield DCP 2007). However, detached dual-occupancies may be considered for approval under the Ashfield Local Environmental Plan (LEP) 1985 and it is considered that this form of development is acceptable as the proposal achieves the overall objectives of the DCP . With the exception of Clause 3.3 and 3.4 of the abovementioned DCP control, the proposal complies with all other relevant controls as therefore recommended for conditional approval. (emphasis added) 41Later in that report it was stated: The proposal achieves the objectives of DCP 2007 and also the objectives stipulated in Section 3 of Part C15 DCP in that column - (a) the proposal will not result in an "isolated" house placed where there would otherwise be rear gardens for the main reason that the subject site has two street frontages. Therefore, the proposed dwelling will have its own street frontage thus ensuring that each dwelling address and rear access to its own private garden... (b) the proposal fits with the "pattern of development" and the "single house" look. The location of the dwelling is not considered to be out of context with the pattern of development in the area. Indeed, townhouses located to the rear near Park Lane, exist next door in 16-18 Brunswick Parade. Given the diversity of residential development in the area, and in the particular presence of this three storey residential flat building development immediately next door, the proposal does not seem to be isolated or inconsistent with the pattern of existing development. (emphasis added) 42It is common ground that the relevant objectives of the DCP in relation to dual-occupancy dwellings is to be found in Section 3 of Part C15 as follows: In order to avoid potential amenity problems for neighbouring properties attached dual occupancies are preferred (mandatory in heritage conservation areas). This is because both dwellings can be designed to appear as one large dwelling, and there are no "isolated " houses placed where there would otherwise be rear gardens. Each dwelling can also have a front address and rear access to its own private garden. This fits in with the "pattern of development" and the "single house" look. 43The interpretation of this passage is not agreed. The applicant submits that it should be interpreted to mean that there are five discrete objectives for dual-occupancy, all of which must be satisfied as follows: (a)to appear as one large dwelling; (b)no "isolated" houses placed where there would otherwise be a rear garden; (c)each dwelling can also have a front address; (d)each dwelling can also have rear access to its own private garden; (e)fits in with the pattern of development and "a single house look". 44On this basis, the applicant argues that the statement in the Council's officer's report that the proposal achieves the objectives of the DCP is in error. The argument is that the proposed development is in fact inconsistent with several of those objectives viewed discretely: it will result in an isolated house placed where there would otherwise be a rear garden (inconsistent with objective (b)); it will not provide rear access to the private garden of the existing building (inconsistent with objective (d)); it does not fit the pattern of development on the eastern or western sides (inconsistent with objective (e)); and will result in two separate houses on the same lot and therefore would not have the "single house look" from whichever point of view (inconsistent with objective (e)). 45In my view, the quoted passage in the DCP ([ 42 ] above) should not be construed as though it contained five discrete objectives as suggested by the applicant. Rather, I consider that it should be construed in a global or holistic. The manner in which the Council report addressed those objectives is consistent with this construction: see [41] above. When the DCP states that "there are no 'isolated' houses placed where there would otherwise be rear gardens", if that is viewed as a discrete or disjunctive objective (as the applicant suggests), then the proposed new house is placed where there would otherwise be rear gardens and there would be a breach of that "objective". However, when that statement is read in context, I construe it to mean that there should not be a second detached house in the rear garden of an existing house where the second house in the rear garden is "isolated" in the sense that it does not have its own street access. That is why the DCP in the quoted passage refers to each dwelling having a front address and rear access to its own private garden. That is what is proposed with this development. It will have a front address on Park Lane (not Brunswick Parade) and access to its own private garden: see [ 3 ] above. 46Looking at the evidence of adjacent developments, I consider that it was open to the Council to take the view that the proposed dwelling fitted in with the "pattern of development" referred to in the DCP and the "single house" look. 47In my opinion, no legal error has been shown. Accordingly, I do not accept this ground.

Manifest unreasonableness 48The third ground is manifest unreasonableness. The applicant submits that the fact that the proposed two storey attached dual-occupancy dwelling is in excess of 100 per cent higher and 200 per cent bigger than that permitted under the DCP for a granny flat is indicative that the development consent was manifestly unreasonable. The applicant also points to the fact that s 79C of the EPA Act required the respondent to take into account the public interest. The Council officer's report relating to the second DA, states that "the public interest would not be served by refusal of this application". The applicant submits that that statement was unreasonable and irrational. 49Various formulations have been put forward to describe what is meant by unreasonableness in the Wednesbury sense (after the seminal case Associated Provincial Picture Houses Ltd v Wedesbury Corporation [1948] 1 KB 223). They were surveyed in Marrickville Metro Shopping Centre Pty Ltd v Marrickville Council [2010] NSWCA 145, 174 LGRA 67 at [104] - [109] by Tobias JA. They include "illogical, irrational or lacking a basis in findings or inferences of fact supported on logical grounds"; a decision "so unreasonable that no reasonable body could have come to it"; "something so absurd that no sensible person could ever dream that it lay within the power of the authority"; decisions which "looked at objectively, are so devoid of any plausible justification that no reasonable body or persons could have reached them"; the unreasonableness must be "verging on an absurdity"; and extreme cases involving "demonstrably absurd decisions". 50Wednesbury unreasonableness sets a high hurdle. I do not consider that the hurdle has been cleared in this case. The question is not whether the Court considers that the decision is unreasonable but whether (on the formulation I prefer) whether the Court considers it so unreasonable that no reasonable body could have come to it. 51Accordingly, I do not accept this ground.

COSTS 52Following oral delivery of the above reasons for judgment, the applicant submits that there should be no order as to costs because the proceedings were brought in the public interest: r 4.2 Land and Environment Court Rules 2007. The applicant indicates that some evidence might be adduced relevant to costs.

ORDERS 53The orders of the court are as follows: (1)The application is dismissed. (2)The applicant by 9 May 2011 is to provide the Council's solicitors with references to any other development applications processed by the Council where the construction of an objects clause in the Council's development control plan is relevant to costs in the present proceedings. (3)There will be no order for costs unless application is made by letter to the Registrar by 16 May 2011 supported by outline submissions and evidence (if any). (4)The exhibits may be returned.

Amendments 24 May 2011 - added numbering to the orders Amended paragraphs: 53 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: 24 May 2011

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