Notaras, Irene v Waverly Council and Levitt, Erroll Wilfred

LEGISLATION CITED: Environmental Planning and Assessment Act 1979

CASES CITED: Associated Provisional Picture Houses Limited v Wednesbury Corporation [1949] 1 KB 223; King, Markwick, Taylor & Ors v Bathurst Regional Council [2006] NSWLEC 505

APPLICANT Mr P Gargan (agent)

FIRST RESONDENT Mr G Newport (barrister) LEGAL REPRESENTATIVES: SOLICITORS Staunton Beattie

SECOND RESPONDENT Mr N Hemmings QC SOLICITORS Allens Arthur Robinson

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

40331 of 2006 Notaras, Irene v Waverley Council and Levitt, Errol Wilfred

1 Talbot J: On 25 November 2004 the second respondent, the owner of 15 Rodney Street, Dover Heights, caused a development application to be lodged with Waverley Council seeking consent to demolish an existing house and construct a new three storey house, garage and swimming pool. After the development application was advertised several submissions were received. Ultimately the application was refused by the Development and Building Unit under delegated authority. 2 Following the lodgement of an application for review pursuant s 82A of the Environmental Planning and Assessment Act 1979 ("the EP&A Act") and the submission of amended plans, the development application was readvertised. A number of councillors inspected the site and met with the architects as a consequence of which further amended plans were submitted on at least two occasions before a meeting of the Development Control Committee on 27 September 2005 where consideration of the application was deferred to allow the applicant to submit amended plans showing the following:- 1. A reduction of the length of the building by at least 1 metre on the western side and; 2. A reduction of the depth of the rear deck from 3.5 metres to 2.5 metres. 3 Further amended plans were submitted reflecting the changes. The applicant in these proceedings, Mrs Irene Notaras, was consulted and she made submissions regarding alleged errors in the plans in respect of natural ground level, height and front and rear setbacks. Further information relating to natural ground level and rear setbacks was thereafter provided by the architects. 4 The development application was further considered at a meeting of the Development Control Committee on 6 December 2005 when Mrs Notaras and other neighbours attended and were given the opportunity to make submissions. 5 The following motion was put to the meeting:

That the application be refused for the following reasons:- 1. The proposed development is contrary to objective 1(b) of the Residential 2(a) zoning and is not considered acceptable in the zone. 2. The Floor Space Ratio of the proposed dwelling is considered to be excessive and the bulk and scale of the dwelling is not supported. 3. The proposed building height at the rear is considered to be excessive and the variation in this respect is not supported. 4. The proposed car park is considered to be excessive in size and the excavation for this structure is not supported. 5. The size and location of the proposed elevated deck at the rear will have a negative impact on the adjoining properties. 6. The proposal is not in the public interest. 7. The proposal impacts on neighbourhood character and built form. 8. The proposal impacts on neighbours to the south. 6 The motion was unsuccessful but by further motion the application was approved in accordance with the conditions recommended in the report of the Development and Building Unit and two additional conditions regarding the swimming pool. 7 A rescission motion was lodged and considered at a meeting of the council on 13 December 2005 when the following decision was made:- That the application be approved in accordance with the decision made by the Development Control Committee at its meeting held on 6 December 2005 subject to the following additional conditions: 1. Limit the height of all walls around front garden and returns to front building alignment to a maximum 1200mm above natural ground level and be of open style for clear through views. 2. All rear and side fences up to rear of the front building line are to be a maximum 1800mm above existing ground surface. 3. All air conditioning, pool pumps and other mechanical plant and equipment to be housed internally within the basement level with suitable noise attenuation. 4. The external wall heights throughout the building be reduced by 150mm. 8 Mrs Notaras was notified of the council's decision by letter 23 December 2005. These proceedings were commenced by the filing of the Class 4 application on 24 April 2006. Mrs Notaras complains that there was no justification for the alleged excedence of the council's control for height and floor space ratio and that the analysis of solar access was based on incorrect information. Moreover no elevations were submitted with the development application to demonstrate the degree of overshadowing on her premises. 9 Mrs Notaras seeks a declaration that the consent is void and of no effect and an order restraining the second respondent as owner from undertaking any development on the subject land pursuant to the consent on the following grounds:-

16. The decision by the First Respondent to issue the consent based on the information before it was manifestly unreasonable.

17. First Respondent took into account matters that were incorrect particularly the shadow diagrams and survey information.

18. The First Respondent failed to take into account the fact that the proposed development failed to comply with the Waverley Development Control Plan 2 - Dwelling Houses Development in relation to: i Height. ii Floor Space Ratio. iii Set backs. iv Car parking. 10 Each of the allegations is denied by the respondents.

The Evidence 11 Mrs Notaras has sworn an affidavit in which she claims that her house and amenities are threatened, as the proposed building will block the sun and her view. Furthermore she says the house will be "much colder in winter and hotter in summer". She believes the Council has ignored her objections. It is clear from a reading of the council's records that Mrs Notaras and those representing her were given every reasonable opportunity to make submissions and to attend relevant meetings to put their points of view. Councillors visited the properties on several occasions. As a direct consequence of the objections made and visits by councillors, amended plans were prepared to deal with the concerns expressed. 12 Mrs Notaras retained a surveyor, Mr Ross Albert Robinson, to check the height of the proposed building against the natural surface ground line and to carry out an investigation regarding the shadow impact on her house. On 24 June 2006 he instructed the operator of a cherry picker hired for the purpose of positioning the top rail of the cage of the cherry picker at the assumed height and position of the critical corners of the proposed building so as to illustrate the impact of that building on the adjoining property owned by Mrs Notaras. The purpose of the exercise was to obtain data by creating shadows cast by the machine and measuring those shadows and photographing them. When he gave his oral evidence it became apparent that Mr Robinson had positioned the cherry picker without taking account of either the actual approved plan or the reduction of wall heights reflected in the conditions of consent. Photographs taken of the cherry picker in place were difficult to interpret. Following a joint conference between an architect retained by Mrs Notaras and the architect who designed the subject building they agreed that it is not possible to identify from the photographs:- · Which side of the cherry picker represents the proposed roof of No. 15 Rodney Street; · What time they were taken; · Where the shadow falls; · Accuracy of the location relative to the proposal; or · Accuracy of the height of the top rail relative to the proposal. 13 The undisputed evidence of the second respondent's architect is that he believes the top rail of the cherry picker bucket is set substantially higher than the proposed flat roof as approved by council. Although the evidence relating to the demonstration with the cherry picker was not available to council prior to the making of its decision, and even if it was, its accuracy is questionable and could not be relied upon to make an adverse decision in regard to the extent of overshadowing. It is clear nonetheless from the council's records that overshadowing was a prominent issue for the council as a consequence of this being raised by Mrs Notaras and that it was given due consideration. 14 Mr Peter Gargan, who appeared as the agent for Mrs Notaras, makes the following observations in support of the allegations that the decision of the council to approve the development application was manifestly unreasonable:- · Too big; · Too high; · Too much parking; · Too little setback; · Inconsistent with streetscape. 15 It is possible to accept the view that the proposed building will be inconsistent with existing developments such as the home of Mrs Notaras. It is typical that many modern large residences generate vast amounts of floor space with little aesthetic appeal concentrating on the selfish demand of its future inhabitants rather than the amenity of the neighbours. Nevertheless that is not a ground (even if it was found to be true), for a finding of manifest unreasonableness in the context of the decision in Associated Provisional Picture Houses Ltd v Wednesbury Corporation [1949] 1 KB 223. 16 In her recent judgment in King, Markwick, Taylor & Ors v Bathurst Regional Council [2006] NSWLEC 505 Jagot J took the trouble to succinctly state the applicable principles in a form that is worthy of repetition in the present context as follows:- There is a "world of difference between justifiable opinion and sound opinion". Whether an opinion is sound or not "is not a question for decision by a court" ( The Council of the City of Parramatta v Pestell (1972) 128 CLR 305 at 323). Where an opinion relates to a matter of "opinion or policy or taste", the authority will be "left with a very wide discretion which cannot be effectively reviewed by the courts" ( Buck v Bavone (1976) 135 CLR 110 and 118 - 119. Also, Puhlhofer and Another v Hillingdon London Borough Council [1986] AC 484 at 518). The application of the "Wednesbury" principle requires the exercise of proper judicial restraint ( Hill v Green (1999) 48 NSWLR 161 at [241]). The impugned decision "must amount to an abuse of power … or be so devoid of plausible justification that no reasonable person could have taken that course" ( Woolworths Ltd v Pallas Newco Pty Ltd and Another (2004) 61 NSWLR 707 at [27] and [91]). The ground must be "extremely confined", or else "the gate to judicial review of the merits of a decision or action" would be opened ( Attorney-General for the State of New South Wales v Quin (1989) 170 CLR 1). Even a perverse finding of fact does not constitute an error of law, at least where an appeal is limited to "errors of law" ( Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 156. See also Bruce v Cole (1998) 45 NSWLR 163 at 189). 17 The subject development is not so devoid of plausible justification that no reasonable person could have approved it. It is not a question of the Court judging the merits of the proposal. That assessment is left to the council as the consent authority. Rather than the actions of the council amounting to an abuse of power, the history of the consideration of the application and the manner in which the issues were dealt with following responses to the concerns expressed by council coupled with the failure of the applicant to adduce any direct evidence to show that the decision of the council was so unreasonable that no consent authority fairly and properly advised could have reached that decision means that the application to set the consent aside must fail. 18 Submissions by Mr Gargan relating to the size of the building and its height call for an objective decision although in some respects are necessarily based upon a subjective opinion. The council was at great pains to inform itself before making its decision. Information provided by the applicant for consent, the objectors and the council's officers left it open for the council to make a decision either way. The fact that Mr Gargon is able to describe the proposal as "the thin edge of the wedge" does not lead to an irrefutable determination that the decision was manifestly unreasonable. The allegation that the decision was made on a false premise in regards to the north point used for the purposes of establishing the shadow impact on the adjoining property has not been borne out by the evidence. 19 Mr Gargan refers to Development Control Plan No. 2 - Dwelling House and Dual Occupancy Development and points to alleged inconsistencies with its provisions particularly in regard to the statement of objectives and its specific provisions relating to proximity to boundaries, future expectations in relation to the character of the area, height of fencing, privacy, vehicle access, lack of landscaped open space, energy efficiency and solar access. These are all issues that the council was required to consider. The submission appears to be on the basis that the council got it wrong rather than it failed to give consideration to the provisions of its own development control plan. Although the purpose of the development control plan is to provide more specific detail and specification than that provided by a local environmental plan it is not imperative for the council to slavishly follow the dictates of the DCP. The submissions made by Mr Gargan in this respect relate to issues of merit. Notwithstanding the view the Court may have in that respect, it has no bearing on the outcome of these judicial review proceedings. 20 As Mr Newport points out on behalf of the council there was an intensive and far reaching investigation over thirteen months. Ultimately the council made a decision that was open to it. There was a plethora of information available to the council in order to enable a full and proper assessment of the impact of height, floor space ratio, size, overshadowing, solar access, car parking and vehicle access. Shadow diagrams were provided together with survey information. The issue of height was a matter of critical importance from the outset. It was the subject of submissions by the applicant's representatives and objectors. Two separate council's officers assessed the height of the building and its impacts. The council was left with a clear choice between opinions. Council officers provided conditions that were considered to be suitable if the building was to be allowed to proceed at the height demonstrated by the plans. 21 Mr Gargan correctly submits that the Court has a duty to dispose of all matters in dispute and resolve differences between the parties. His assertion that the Court has unlimited jurisdiction has to be considered in the light of the statutory jurisdiction vested in the Court. In the present proceedings, that jurisdiction extents to a judicial review of the administrative decision by Waverley Council to grant development consent. The powers of the Court to set aside such an administrative decision are within limits. Those limits have been effectively summarised and explained by Jagot J in King, Markwick. The Court has no power to review the merits of the decision by the council except in those cases where it exercises an appellant jurisdiction. This is not such a case. 22 It is appropriate, having regard to the whole of the circumstances and for the reasons explained above, that the application by Mrs Notaras be dismissed. She has been entirely unsuccessful in the proceedings and there is no suggestion that either the council or the second respondent have engaged in disentitling conduct such that there should be no order as to costs against her as the unsuccessful party. I propose therefore to order that the applicant pay the costs of the first and second respondent. 23 The formal orders of the Court are:

1. Application dismissed. 2. That the applicant pay the costs of the first and second respondent.
2. The exhibits be returned.

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