Notaras v Waverley Council & Anor

Notaras v Waverley Council & Anor - [2007] NSWCA 333 - NSWCA 2008 case summary — Zoe

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Monday 26 November 2007 IRENE NOTARAS v WAVERLEY COUNCIL & ANOR Judgment 1 MASON P: I agree with Tobias JA. 2 HODGSON JA: I agree with the orders proposed by Tobias JA and, subject to what I say below, with his reasons. 3 In relation to the question whether the appellant needed leave, or should be granted leave, to assert that the Council failed to take into consideration the provisions of DCP2 in relation to height, floor space ratio, setbacks and car parking, as required by s.79C of the EPA Act, in my opinion the point was adequately raised by par.18 of the appellant's Points of Claim. 4 Decisions as to what evidence should be called by a council and/or a developer would be guided by the issues raised by pleadings and particulars, and to a lesser extent by evidence served in advance of the hearing by an applicant. In my opinion, the circumstance that a litigant without legal representation did not refer to DCP2 or s.79C in submissions does not mean that these matters were not adequately raised below; and in my opinion the respondents cannot object to their being raised on appeal, on the basis of principles discussed in Suttor v. Gundowda Pty. Limited (1950) 81 CLR 418. 5 It is less clear whether the same applies to reliance on the particular provision of DCP2 (cl.1.6) that asserts, "Controls may not normally be varied" and "if an applicant is able to clearly demonstrate that a particular control is unreasonable or unnecessary in the circumstances of the case, Council may consider waiving the control". It is arguable that the general requirement that pleadings be such as to avoid surprise would mean that reliance on this clause should have been specifically raised in the Points of Claim. On the other hand, DCP2 is specifically referred to, as is non-compliance with items that were in fact "controls"; and on balance, I think this was enough. 6 Tobias JA was inclined to accept that the appellant could not rely on the cl.1.6 point on appeal; but has also held that, if she could rely on it, her appeal would not succeed in any event. I question the former, but I agree with latter. The appellant had the onus of proving that the Council did not, as required by s.79C of the EPA Act, take the relevant provisions of DCP2 into consideration. For the reasons given by Tobias JA, in my opinion the appellant did not discharge that onus. 7 The other matter on which I wish to say something is the matter of s.82A of the EPA Act, raised (impermissibly) in the appellant's supplementary submissions. 8 The relevant sequence of events was as follows. 9 On 23 February 2005, the developer's application was refused. On 11 March 2005, an application was made for a review, under s.82A, of that determination. 10 On 6 December 2005, the amended application was approved, with two additional conditions. Before the close of the meeting at which this approval was given, a motion to rescind was received, and it was stood over to 13 December 2005 (2 Blue 409). It is not suggested that any notification of the approval was given pursuant to s.83 of the EPA Act. 11 On 13 December 2005, the rescission motion was carried, and the amended application was then approved, with four additional conditions. Notice of this determination was given on 23 December 2005 (2 Blue 413-4). 12 Sections 81(1) and 83(1) of the EPA Act are as follows: 81 Post-determination notification (1) The consent authority must, in accordance with the regulations, notify its determination of a development application to: (a) the applicant, and (b) in the case of a development application for consent to carry out designated development, each person who made a submission under section 79(5), and (c) such other persons as are required by the regulations to be notified of the determination of the development application.

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83 Date from which consent operates (1) Subject to subsections (2) and (3), if a determination is made by the granting of consent, the consent becomes effective and operates from: (a) except as provided in paragraph (b) - the date that is endorsed on the notice given to the applicant in accordance with section 81 (1) of the determination of the development application or under section 82A(7), or (b) in the case of designated development to which an objection has been made in accordance with section 79(5): (i) if consent was granted under section 80(7) following the holding of an inquiry by a Commission of Inquiry - the date that is endorsed on the notice of the determination of the development application given to the applicant in accordance with section 81(1), or (ii) in any other case - the expiration of 28 days from the date that is endorsed on the notice of the determination of the development application given to the applicant in accordance with section 81(1). 13 Although the determination of an application occurs at the time of the determination itself (Kindimindi Investments Pty. Limited v. Lane Cove Council [2007] NSWCA 38 at [11] and [17]), a determination does not take effect until notification, and can be rescinded so long as notification has not been given: Ex Parte Renouf (1924) 24 SR(NSW) 463, Shanahan v. Strathfield Municipal Council [1973] 2 NSWLR 740, Townsend v. Evans Shire Council [2000] NSWLEC 163, Hopkins v. Tweed Shire Council [2001] NSWLEC 75, 113 LGERA 406. 14 Accordingly, the rescission on 13 December 2005 of the determination of 6 December 2005 was not pursuant to any power to review under s.82A, but was simply pursuant to the power of the Council to reconsider an approval before notification. 15 Thus, as Tobias JA has pointed out, once the determination of 6 December 2005 had been rescinded, the application for review made on 11 March 2005 was undetermined, and was available for determination under s.82A. 16 TOBIAS JA: On 13 December 2005 the first respondent (the Council) granted consent to a development application (the application) for the demolition of the existing building upon land being No.15 Rodney Street, Dover Heights (the site) owned by the second respondent and for the construction thereon of a new dwelling and swimming pool (the proposed dwelling) subject to some 50 conditions (the Consent). 17 On 24 April 2006 the appellant, who owned and lived at No.17 Rodney Street, Dover Heights and who was one of five objectors to the proposed dwelling, filed an application in Class 4 of the jurisdiction of the Land and Environment Court seeking a declaration that the Consent was void and of no effect and for an order restraining the second respondent from undertaking any development on the site pursuant thereto. 18 The proceedings were heard by Talbot J who, on 27 October 2006, dismissed the appellant's application with costs. It is from that decision that the appellant now appeals to this Court.

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20 Consistent with the allegation in para 16 of the Points of Claim, the primary judge determined the proceedings upon the basis that the only allegation being advanced at trial was that the decision of the Council to grant the Consent was manifestly unreasonable or, as it is often described, was Wednesbury unreasonable. His Honour did not deal separately with what appears to be an independent ground of invalidity alleged in para 18 of the Points of Claim, namely, that the Council failed to take into account certain relevant provisions of Waverley Development Control Plan No.2 (DCP2). He confined himself to the manifestly unreasonable ground because the appellant did not at trial press para 18 as an independent ground of invalidity of the Consent. 21 This is not to say that the relevant provisions of DCP2 were not referred to by the appellant at trial; they were but, so it seems, only in the context of the submission that the Council's decision to grant the Consent was manifestly unreasonable. Thus in an exchange between the primary judge and a Mr Gargan who appeared for the appellant as her agent (and who was not legally qualified) Mr Gargan agreed that "in a nutshell" the appellant's case was that DCP2 had been ignored. 22 The reason why I mention the manner in which the case was conducted at trial is because in her original written submissions-in-chief filed in the appeal (the, or her, original submissions), the appellant asserted not only that his Honour was incorrect in failing to find that the Council's decision to grant the Consent was manifestly unreasonable but also that he was in error in failing to find that in coming to its decision the Council had acted contrary to s 79C(1) of the Environmental Planning and Assessment Act 1987 (the EPA Act) by failing to take into consideration certain relevant provisions of DCP2 as well as the off-street car parking controls contained in Waverley Development Control Plan No.14 (DCP14). Certainly, there was no reference by the appellant's representative before the primary judge to DCP14. It first arose in her original submissions on appeal. 23 The respondents in their written submissions in reply objected to the appellant raising the s 79C ground upon the basis that she should be confined to the manner in which she had conducted her case at trial: University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481 at 483; Coulton v Holcombe (1986) 162 CLR 1 at 7. 24 Although the respondents accepted that the provisions of DCP2 containing controls with respect to floor space ratio, external wall height, ridge height, set backs and solar access had been referred to by the appellant before the primary judge in support of her case of manifest unreasonableness, in her original submissions she widened the provisions of DCP2 upon which she relied to include a reference to cls 1.5 and 1.6 upon which no reliance had been placed before the primary judge. The Council submitted that had cl 1.6 been relied upon at trial, it was possible (if not probable) that any such reliance would have been met by the calling of at least those councillors who voted in favour of the granting of the Consent. 25 In this respect I observe that the respondents' evidence before his Honour was wholly documentary comprising the relevant parts of the Council's files and planning instruments. No evidence was called by the Council from any councillor or any of its planning officers who dealt with the application over the period of some 13 months between the time it was lodged and the time the Consent was granted. According to the respondents, this was due to the manner in which the appellant's case had been presented at trial.

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The grounds of appeal and their relationship to the appellant's original submissions 26 The Notice of Appeal with Appointment filed on 21 February 2007 (the original Notice of Appeal) contained two grounds of which the second was not pressed. The remaining ground alleged error on the part of the primary judge in failing to find that the Council's decision to grant the Consent was manifestly unreasonable in that first, the elected councillors were guilty of abuse of the Council's power in granting the Consent and, second, that it made a decision that was so devoid of plausible justification that no reasonable council could have made it. It was apparent that the appellant's grounds of appeal in her original Notice of Appeal did not in many respects correspond with her original submissions. 27 Objection having been taken by the respondents to the appellant advancing grounds of invalidity of the Consent not litigated before the primary judge, the appellant on 3 October 2007 filed a Notice of Motion in this Court seeking, amongst other things, leave to amend her Notice of Appeal. The Amended Notice of Appeal deleted Ground 2 from the original Notice and added new Grounds 2, 3, 4, 5 and 6 of which Grounds 4 and 6 were later abandoned. Ground 2 in substance repeated Ground 1 of the original Notice of Appeal by alleging that the primary judge failed to find that the Council's decision to grant the Consent was manifestly unreasonable. 28 However, Ground 2 differed from the original by alleging first, that the proposed dwelling breached the controls in DCP2 and DCP14 in the absence of the second respondent having clearly or at all demonstrated that those controls were unreasonable or unnecessary in the circumstances of the case (an assertion that reflects the provisions of cl 1.6 of DCP2) and, second, that the Consent was granted contrary to the recommendation of the Council's officers that the application be refused. 29 Ground 3 of the Amended Notice of Appeal alleged that the primary judge erred in respect of his finding relating to natural ground level of the site and with respect to the affidavit evidence of Mr Ross Robinson, a surveyor called at the trial on behalf of the appellant. The particulars of this ground alleged a failure by his Honour to make any or any sufficient finding as to the location of the natural ground level of the site; that he wrongly admitted certain photographic evidence; that he erroneously had regard to an agreed statement between the architects for the parties regarding the accuracy of the photogrammetric evidence and, finally, that he erroneously proceeded on the assumption that Mr Robinson had not had regard to "the approved plan or any relevant plan" meaning, I think, that he had not had regard to the definition of "natural ground level" in DCP2. 30 In my opinion Ground 3 of the Amended Notice of Appeal should be rejected as the appellant has not directed any of her submissions in support of it. The same comment applies to Ground 5 which alleged that the primary judge misdirected himself in failing properly or at all to determine the location of true North and the consequences for the shadow diagrams which had been submitted to the Council on behalf of the second respondent. Furthermore, the allegation in Ground 5, although advanced before the primary judge, was not established by the evidence as his Honour so found at [18]. Subject to one matter to which I shall return, no evidence to the contrary has been referred to in the appellant's submissions. 31 Notwithstanding the attempt, one assumes, of the appellant to raise it her the Amended Notice of Appeal further grounds which were sufficient to encompass the original submissions, that document is still deficient in that it does not allege a failure by the Council to take into consideration the provisions of DCP2, let alone DCP14, contrary to s 79C(1) of the EPA Act. Nonetheless, both respondents have filed extensive written submissions with respect to that ground of invalidity and accepted that they were not prejudiced with respect to the issues now raised except insofar as they new Ground 2 asserts that the Council's decision to grant the Consent was manifestly unreasonable as the second respondent had not demonstrated (as allegedly required by cl 1.6 of DCP2) that the application to the proposed dwelling of relevant controls in DCP2 and DCP14 was unreasonable or unnecessary in the circumstances of the case. Nevertheless, limited submissions were made both orally and in writing by the respondents with respect to that issue. 32 Prior to reserving judgment in the matter, the Court granted the appellant leave to file her Amended Notice of Appeal excluding Grounds 4 and 6. However, the granting of that leave was not intended to and does not prevent the respondents from asserting that the new Ground 2, insofar as it asserts a breach of cl 1.6 of DCP2, should not be permitted to be advanced. I would be inclined, without finally deciding, to accept that submission as it is common ground that cl 1.6 was not relied upon before the primary judge and it is not referred to, even by implication, in the appellant's Points of Claim. Further, I accept that had that ground been raised at first instance, it may well be that the Council would have wished to call some or all of the councillors, or at least those who voted in favour of the granting of the Consent, to give evidence that they took that provision into consideration and felt that it had been satisfied. Nevertheless, as will appear, even if the appellant be permitted to raise cl 1.6, in my view the submissions of the appellant based upon it should be rejected. 33 In this respect I observe that in the amended Grounds of Appeal, cl 1.6 is raised only as a fact relevant to the ground of invalidity based upon manifest unreasonableness.

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The DCP contains objectives, design criteria, design solutions and controls . … … The design guidelines also include 'controls'. Controls may not normally be varied. However, if an applicant is able to clearly demonstrate that a particular control is unreasonable or unnecessary in the circumstances of the case, Council may consider waiving the control." 37 I interpolate here that it is important to note that compliance with the "controls" provided for in DCP2, being in a development control plan rather than a local environmental plan, were not mandatory and, therefore, could as a matter of law be subject to variation. In other words, although in a particular case the Council might decide not to vary the controls, it was empowered to do so having taken the control into consideration where it was satisfied that the merits of a particular development justified a departure from it. 38 The relevant part of cl 1.6 upon which the appellant relies seeks to set out a formula which must be adhered to before the Council will consider waiving any particular control. It is noteworthy that it adopts the language of cl 6 of State Environmental Planning Policy No.1 (SEPP1) which empowers a consent authority to vary or disregard a development standard where the authority is of the opinion that compliance with that standard is unreasonable or unnecessary in the circumstances of the case. Those development standards are, subject to cl 6 of SEPP1, mandatory being contained within a local environmental plan, unlike the "controls" in DCP2. In my view, therefore, it was always open to the Council to grant consent to a development that did not comply with those controls even if it had not been demonstrated that the application of a particular control was unreasonable or unnecessary in the circumstances of the case. In other words, if the Council was of the view that departure from a DCP2 control was reasonable and acceptable in the circumstances, and that was an opinion that was open to it to form, then it could not be said that its failure to require an applicant for development consent to demonstrate that the particular control was unreasonable or unnecessary in the circumstances of the case mandated, without more, a finding that its decision to depart from that control was manifestly unreasonable. I shall return to this point later in these reasons. 39 The following provisions of DCP2 were also relied upon:

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The history of the application - The original application 41 The application was lodged with the Council on 26 November 2004 by the second respondent's architects (the architects). It was the subject of an undated report (but prepared prior to 17 February 2005) of Mr Andrew Biller, an assessment officer of the Council. What was then proposed comprised a basement containing a garage for four cars, a study and an indoor swimming pool with associated change rooms and storage. The ground floor comprised an informal living and dining area as well as a formal living and dining area, a kitchen and east and west facing terraces, the site having an east-west orientation with views across Rodney Street to Rodney Reserve and the ocean. The first floor comprised five bedrooms including a master bedroom with two en suites and two other bathrooms together with east and west facing terraces. 42 After referring to the surrounding development including the fact that the Rodney Street streetscape was characterised by a range of dwellings of varying architectural styles and age, from single storey red brick bungalows to more recent two and three storey contemporary residences, Mr Biller set out in table form the relevant controls in DCP2 and whether or not there had been compliance with them. Relevantly, the table indicated first, that there was a non-compliance with the permitted floor space ratio of 0.51:1 as that proposed was 0.72:1 (excluding so much of the basement parking area as exceeded 30m²) and 0.9:1 if the basement excess was included. 43 Second, the external wall height permitted was 7.5m above natural ground level whereas that proposed ranged from 7.6m to 9m. Although the table indicated that there was a non-compliance with the maximum roof height of 9.5m, that must have been in error as the table states that the proposed dwelling had a roof height of 9.5m which complied. 44 Third, under the heading "Set backs", there was either whole or partial technical non-compliance but total performance compliance. So far as the rear set back was concerned, there was technical non-compliance but performance compliance with respect to the basement and ground floor levels but not the first floor level. 45 Fourth, the proposed four car parking spaces instead of two was technically non-compliant but in performance terms, was said to comply. It is to be noted that the table indicates that the site coverage was 46% whereas 66% was permitted with the consequence that there was total compliance with that control. 46 Mr Biller's report then set out various comments under the following headings: · Floor Space Ratio, Bulk and Scale - reference was made to the maximum permissible floor space ratio of 0.51:1 and to the floor space ratio proposed. The report noted that the floor space ratio non-compliance resulted in a building with unacceptable bulk and scale for the locality and recommended three measures to reduce its impact. Subject to those measures being accepted, the author considered that the new dwelling would be consistent with the objectives with respect to the size and bulk of dwelling houses as set out in DCP2. · Height - reference was made to the maximum permissible wall height of 7.5m and noted that the heights proposed were 7.6m and 9m with the non-compliance increasing towards the rear of the site. Adoption of the measures referred to under the heading of floor space ratio would, however, reduce the overall height of the development to "a more acceptable wall height of between 7.2m and 8.6m". Reducing the height would also decrease the loss of solar access to the property to the south [being that of the appellant]. · Setbacks - reference was made under this heading to the set backs on all sides of the site in relation to the requirements of DCP2. So far as the side set backs were concerned, the report noted that in general they had been "appropriately articulated to reduce the bulk impact on adjoining properties". The rear and front set backs were then referred to, it being noted that there was a significant non-compliance with the rear set backs of adjoining dwellings which was unacceptable. The report noted that the rear set back of the proposed dwelling should reflect that of the adjoining building to the north and that this could be achieved. 47 Under the heading Car Parking and Access the report referred to the requirement in DCP2 that the proposal generated a requirement for two car parking spaces but that four were provided. There was no reference to DCP14. The number of car spaces was not objected to although the author of the report made reference to the requirement that the length of the basement parking area be decreased by two metres to reduce the overall floor space by 19m². 48 Under the heading "MERIT ASSESSMENT AND OTHER MATTERS", Mr Biller dealt with that part of DCP2 that related to the residential character study of Dover Heights, dealing with each of the desired future character objectives set out in that document with respect to streetscape and architectural style including cl 4.2 under the heading "Desired Future Character Objectives", noting that it was considered that villa style housing with a pitched roof was no longer the predominant architectural style in this particular part of Dover Heights. 49 The report then dealt with the issue of privacy and overshadowing. After summarising some 15 concerns extracted from the submissions from the owners of Nos. 13, 15, 17, 19 and 21 Rodney Street (the only objectors), the report agreed with the objectors that in its current form the proposal generated unacceptable impacts on adjoining properties and on the existing streetscape but noted that it could be amended to reduce those impacts and result in a solution which better fitted the context and was more responsible to the constraints of the site. Mr Biller therefore recommended that the Council defer the application and allow the applicant the opportunity to submit amended plans incorporating the following measures:

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Revision B 52 On 14 March 2005 the architects under cover of a letter dated 11 March 2005 submitted amended plans to Mr Faruqi that incorporated all of the measures referred to in [49] above other than items 5 and 7. The amended plans (Revision B) proposed some 12 changes to the original plans. The architects' letter was also expressed as an application under s 82A of the EPA Act for review of the DBU's decision of 23 February 2005 to refuse the application. 53 On 20 May 2005 the architects emailed Mr Lewis Adey, a Council assessment officer, indicating that the second respondent would accept a rear set back on the ground and first floor levels of the proposed dwelling of 17.2m. The suggestion with respect to the reduction in the size of the garage and the moving of the pool area further under the ground level was declined. However, of present relevance is a reference in the email to DCP14. The architects noted that a new version of DCP2 had come into force on 23 March 2005 but that it explicitly stated that it was not to apply to an application made before that date. It was further noted that a new version of DCP14 had come into force on 1 December 2004. The previous version of that DCP did not contain a maximum limit on the number of car parking spaces, although the car parking provided in excess of that required under that DCP as in force prior to 1 December 2004 was to be considered part of the gross floor area of a development for the purposes of calculating its floor space ratio. 54 The architects submitted that just as the application was to be assessed against the version of DCP2 which was in force prior to 23 March 2005, so also should it be assessed against the version of DCP14 in force prior to 1 December 2004, that is, as at the date when the application was lodged, namely, 26 November 2004. 55 In an attempt to resolve outstanding design issues a meeting was held between the architects and Messrs Faruqi and Adey of the Council's planning department as well as Councillors Betts and Kay on 3 June and a further meeting with the two council officers on 9 June.

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Revision C 56 Further amended plans (Revision C) were submitted on 9 June 2005 in response to the meeting between the architects and Councillors. These plans were the subject of a development assessment report by Mr Adey dated 10 June 2005 in which he recommended that the application as amended be approved subject to conditions. 57 Mr Adey's report referred first to the amended plans (Revision B) submitted in March 2005 noting that they were assessed by the Council officers as not overcoming the reasons for refusal of the DBU on 17 February 2005. The further amended plans increased the rear set back to 17.2m on all levels, deleted the internal pool and its associated structure, substituted an external pool and reduced the width of the rear terrace by 1m. The report stated the requirements of cl 10 of the LEP (which required any development to be consistent with the relevant objectives of the 2(a) Residential Zone) were satisfied. Clause 30 of the LEP, which related to the aesthetic appearance of a development was also referred to, it being concluded that the design of the front of the proposed dwelling ensured an open aspect and positive visual connection with the street. 58 Paragraph 2.1.3 of the report set out a table which provided for a compliance check against the various controls in DCP2. As to height, it was noted that the maximum building height of 9.5m was complied with as the proposal had a maximum height of 9.1m. As to the northern and southern external walls, it was noted that there was a non-compliance with the 7.5m standard, the proposed dwelling having a wall height of 8.3m. There was also a non-compliance with the floor space ratio, the proposal now having a floor space ratio of 0.85:1 as against the standard of 0.51:1. In relation to set backs there was a non-compliance on the south in relation only to the pool stairs and a rear non-compliance with respect to a terrace; otherwise there was compliance with the established building line of 17.2m from the rear boundary. 59 After reporting a non-compliance by the elevated external decks, Mr Adey referred to DCP 14 noting that there was a non-compliance with the permitted maximum of two car parking spaces as against the proposal for four such spaces. There was otherwise compliance with the other requirements of DCP 14. 60 The report then proceeded in some detail with the author's comments on the various controls. Under the heading Density, it was noted that there was a significant exceedence of the floor space ratio otherwise permitted by DCP2 but that 36% of that floor space was at basement level. It was accepted that at least half of this area towards the front of the site was below ground and, therefore, did not add to the bulk of the building. Taking that into account, the report suggested that floor space ratio could nominally be reduced to approximately 0.69:1. The report concluded in the following terms with respect to this issue: "Having regard to the revised plans, which reduces the bulk of the building at the rear and produces a general compliance with the rear set back, it is considered that the additional floor space now has no adverse impacts on adjoining residents. As such the revised proposal is considered to comply with the Size and Bulk objectives in DCP2, despite the numeric non-compliance." 61 Under the heading Height, the following was stated: "There is a wall height non-compliance towards the rear of the property. This area of non-compliance has been reduced as a result of the increased rear set back. It was this section which created adverse bulk impacts when viewed from adjoining properties. The remaining area of non-compliance is not considered to give rise to any adverse impacts. As such the objective of the height control is considered to be met." 62 Under the heading Car Parking and Access, reference was made to DCP14 which came into force on 1 December 2004 and that the proposed parking area was capable of accommodating up to four vehicles which was contrary to the objectives and standards of that instrument. However, it was noted that the report was dealing with a s 82A review and not a new development application so that in those circumstances it was reasonable to have regard to DCP14 as it was at the time of the lodgement of the application. That DCP did not place a maximum limit on parking spaces. It was observed that approval of this review would not compromise the implementation of the new DCP14 to future new development applications. 63 It was further noted that the amended plans demonstrated that the parking area did not add to the bulk of the building as it was generally underground. It was accessed by a single driveway which had less impact on the streetscape than a double garage. On balance, therefore, it was considered that the parking layout could be supported in the present instance. Although not specifically adverted to, it is implicit that the author of the report considered that the basement garage with four spaces provided a better planning solution to the development of the site than a two car garage facing the street. As such, the proposal would meet the variation provision in cl 2.11(a) of DCP14. 64 Under heading Set backs, it was noted that the front and side set backs were now fully compliant with the exception of the stairs from the rear terrace to the pool level. It was noted that the rear set back of the four adjoining properties indicated that the predominant rear set back was 17.2m with which the proposed dwelling complied at all levels with the exception of the terrace which was only set back 13.5m. Exception was taken to the stairs from this terrace to the pool level. Nevertheless it was considered that the stairs should be set back a further two metres to reduce their impact, a proposal with which the architects were in agreement and an appropriate condition framed. This section of the report concluded in the following terms: "As amended, with the deletion of the pool structure and the reduction in size and increased set back of the terrace, it is considered that this terrace does not adversely add to the visual bulk of the building at the rear. Privacy issues are also being satisfactorily addressed, as discussed below. The revised rear set back is therefore considered acceptable subject to the condition regarding the stairs." 65 Paragraph 2.1.4 of the report was headed "Other Matters". Under the heading Privacy, reference was made to the ground floor terrace, it being concluded that the increased set back of the stair from that terrace to the pool level would further alleviate any privacy concerns as a consequence whereof the revised plans were considered acceptable. 66 Under the heading Overshadowing, the following was stated: "The proposal results in overshadowing of the backyard of the adjoining property to the south at 9am in midwinter. This shadowing has largely disappeared by midday and 3pm. The reduction in the rear set back and, significantly, the removal of the enclosed pool structure has reduced this overshadowing. It is considered that, whilst solar access to the adjoining property to the south will be affected by the proposal, the extent is acceptable." 67 Under the heading Character Study in relation to Dover Heights, the desired future character objectives relevant to the proposed dwelling both in terms of streetscape and architectural style were referred to and determined to be satisfactory. 68 Finally, under the heading CONCLUSION the following was stated: "The second amended plan submitted with this application had made some significant changes when compared to the proposal refused by the DBU on 17 February 2005. It is considered that this has satisfactorily overcome the reasons for refusal. Approval is therefore now recommended."

[51]

It then recommended refusal for five reasons including excessive floor space ratio, excessive building height at the rear, excessive size of the carpark and the size and location of the elevated deck at the rear which would have a negative impact on the adjoining properties. 71 It should be noted in passing that the reference in the DBU's assessment to Council's policy that with respect to sloping sites the development should step down with the slope of the land, was to cl 3 of DCP2 where, under the heading BUILDING HEIGHT, the design criteria requiring dwelling houses to follow the contours of their site provided for a design solution in the following terms: "Building on steep sites are stepped down to avoid high columns, elevated platforms of large undercroft areas …" 72 There follows in Figure 2 an illustration of "dwelling houses stepping down 'steep sites' ". The point that needs to be made is that the slope of the site in the present case was not steep but as the northern and southern elevations and the east-west sections reveal, involved a fairly gentle slope of 2.2m between the east and west boundaries over a distance of 42.67m which is an average slope of 5%. 73 A development assessment report of the amended application following the format of previous reports was attached to the DBU's Minutes of its meeting on 14 September 2005. It noted an external wall height of between 7.5m and 8.3m as against the standard of 7.5m; non-compliance of the pool stairs and rear terrace as well as non-compliance with DCP14 with respect to the number of car parking spaces. 74 Under the heading Density, the floor space ratio was considered excessive given that the proposed ground level at the rear of the proposed dwelling was raised approximately 1.5m to 2m above natural ground level with the consequence that the impact due to the bulk of the building at the rear was not considered acceptable. A similar comment was made in relation to the external wall height which was said to be particularly noticeable at the rear of the dwelling. 75 Under the heading Car Parking and Access, reference was again made to the history of DCP14 but it was nevertheless concluded that parking for four vehicles was considered to be unreasonable given that the proposed parking area at the rear together with the study, spa room and change room, raised the building height at that point and thus contributed to its bulk. 76 Reference was also made under the heading Set Backs to the depth of the rear terrace of 3.5m, which was approximately 2m above natural ground level and which was considered to compromise the visual and acoustic privacy of adjoining residents. 77 Under the heading Privacy, it was considered that the proposed terrace at the ground floor of the rear of the proposed dwelling was excessive and compromised the amenity of the adjoining dwellings and was thus considered unsatisfactory. On the other hand under the heading Overshadowing, it was noted that there would be overshadowing of the backyard of the property to the south at 9am in mid-winter which largely disappeared by midday and 3pm. It was noted that the reduction in the rear set back and, significantly, the removal of the enclosed pool structure had reduced that overshadowing to the point where it was considered acceptable.

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Revision E 78 The DBU's report of 14 September 2005 came before a meeting of the DCC on 27 September 2005 when it was resolved that the application be deferred to allow the architects to submit further amended plans providing for the reduction in the length of the building by at least one metre on the western side and a reduction in the depth of the rear terrace from 3.5m to 2.5m. Amended drawings (Revision E) providing for those reductions were lodged with the Council on 24 October 2005 and reported on by the DBU on 11 November 2005. In that report it was noted that the ground floor plan had been set back a further 1m from the western elevation; the first floor plan had also been set back a further 1m from that elevation and the rear deck had been reduced in depth from 3.5m to 2.5m. The report submitted those observations for consideration by the DCC, stating that should the Committee decide to approve the amended plans the conditions which then followed were recommended to be imposed. 79 That report came before a meeting of the DCC on 22 November 2005 when it was resolved that the application should again be deferred to a meeting of the DCC to be held on 6 December 2005 to allow Council officers to confirm the height and set back details of the application. It would appear that what prompted this resolution was a facsimile from the then solicitors for the appellant to the Council dated 22 November 2005 in which it was stated that the appellant had already raised concerns with the Council as to inaccuracies contained within the architectural plans as they related to the natural ground levels. There was enclosed a sketch prepared by Mr Surveyor Robinson detailing his assessment of the natural ground level within the site as compared to that indicated on the plans. The letter asserted that any inaccuracies in the depiction of the natural ground level would not allow the Council to properly assess the application against its planning requirements. A copy of that letter was sent to all 12 councillors. 80 The accompanying report of Mr Robinson dated 29 September 2005 indicated a natural ground level which, if correct, would result in a greater exceedence of the northern and southern external walls of the 7.5m maximum height control particularly at the rear of the proposed dwelling, as well as a minor exceedence of the 9.5m overall height control which, to that point, had been considered by the Council officers as complying. 81 By letter dated 24 November 2005 received by the Council on 28 November, the architects wrote to Mr Faruqi enclosing revised shadow diagrams based on the latest amended plans. Those shadow diagrams indicated first, that the proposed dwelling was generally located within the footprint of the existing dwelling upon the site; second, that at 9am the rear yard of the appellant's property to the south of the site was significantly overshadowed by the existing building upon the site although there was some extension of that shadow caused by the proposed dwelling; third, that at midday the additional shadow cast by the proposed dwelling was minimal and that the rear yard of the appellant's property was in full sunshine; fourth, that at 3pm the proposed dwelling did not cast any shadow upon the appellant's property. 82 The DBU reported on the application to the DCC on 29 November 2005. That report recited the decision of the DCC in its meeting on 27 September 2005 to defer the application, to the submission of amended plans on 24 October 2005 and to the submission by the appellant of Mr Robinson's report. Under the heading Building Height and Setback details and under the subheading Building Height was set out the following table: Standard Proposed South Elevation 7.79m · Front 7.5m wall height 8.97m [Exceedance from 290mm to 1790mm] · Middle 9.29m · Rear North Elevation 8.56m · Front 7.5m wall height 8.76m [Exceedance from 1006mm to 2350mm] · Middle 9.85m · Rear Middle Roof 7.5m wall height 9.39m Highest point south elev. 9.5m for pitch roof 10.16m Highest point north elev.

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83 However it was noted that the proposed wall heights had been calculated according to spot levels taken from a survey plan of Gannon & Brignall, Registered Surveyors, dated 19 May 2004 which had accompanied the application. Those spot levels were existing levels and it was not suggested that they necessarily related to natural ground level before the site was filled and/or excavated (which it appears it was) when the existing dwelling was erected thereon. Because of those factors the architects had determined what they referred to as an imputed east-west natural ground level being a straight line along Section A-A from the east boundary to the west boundary at approximately the mid point of the widest part of the proposed dwelling. It had utilised that imputed natural ground level in determining the external wall heights of the proposal. 84 The DBU's report then stated as follows: "Whilst it is very difficult to ascertain exactly the height of the proposed development at some particular point, due to the slope and cross slope of the site, the spot levels around the existing development have been used to calculate the height of the proposed development. The building height, especially at the rear was considered to be excessive and the opinion of the DBU still stands. Though there is a prescriptive departure in building height on the southern elevation, it is noted from the survey provided to Council that the southern adjoining building is also located on ground, which is some 0.46m to 0.71m higher than the subject property." 85 Under the heading Building Setbacks, it was noted that the basement carpark, which was set back 4m from the front boundary, would according to the survey plan extend approximately 1.4m above existing ground level. Nevertheless with the exception of the carpark which was considered to be excessive in size, the front set back was still considered by the DBU to be acceptable given the articulation of the front façade of the proposed dwelling. 86 As to the rear set back, it was noted that as proposed on the amended drawings it was 18.2m which was considered acceptable. The observations in the report of the DBU were then submitted for consideration by the DCC without a further recommendation. The report concluded that should the DCC decide to approve the amended plans, the conditions then set out should be imposed. 87 A facsimile dated 2 December 2005 from the architects to Mr Faruqi noted the latter's site visit on 28 November when, according to the architects, Mr Faruqi indicated that he was not in a position to determine natural ground level and hence would only show spot levels based on the existing ground in his report to the DCC (being the report of the DBU dated 29 November 2005 of which Mr Faruqi was apparently the author). The architects enclosed a report dated 1 December 2005 of Mr Denny Linker, Registered Surveyor, together with a copy of the amended section AA plan upon which Mr Linker had marked what he had determined as the natural ground level of the site on its east-west axis. 88 In his report Mr Linker referred to the survey report from which Mr Faruqi had taken his spot levels for the purpose of his report of 29 November 2005, Mr Robinson's report of 23 September 2005, a survey of the site which Mr Linker had carried out on 9 April 1971 together with surveys carried out by him or under his supervision of neighbouring sites between 1971 and 1983. 89 Having considered all the evidence, Mr Linker expressed the view that the existing ground level of the site had been formed after excavation and grading work. He concluded that the natural ground level along the centre line of the site was an even slope from the front boundary to a low point about 4m to the east of the rear boundary. That low point was consistent with the topography of the site to the west and north. Accordingly, he indicated that he could not agree with Mr Robinson's conclusion depicted in the section attached to his report; nor could he agree with the ground line shown by the architects on their section A-A drawing as being "natural ground level" although it seemed a reasonable architectural estimate for an "imputed ground level". 90 In their letter of 2 December 2005 enclosing Mr Linker's report, the architects set out their summary of the implications of Mr Linker's interpretation of natural ground level on the drawing accompanying his report. They stated: " ▪ There are only minimal differences between: - the 'natural ground level' defined by Mr Linker and the 'imputed ground line' we used. Specifically at the centre line of the property, 60mm at the ront and 280mm at the rear; - the wall heights of the southern wall above the 'natural ground level' defined by Mr Linker and the 'imputed ground line' we used. Specifically ► at the front there is no discernable difference with the wall heights being 7.0m; ► at the mid point the difference is 70mm with the wall height above Mr Linker's level being 7.62m and the wall height above our imputed line being 7.55mm; ► at the rear the difference is 150mm with the wall height above Mr Linker's level being 8.25m and the wall height above our imputed line being 8.1m. ▪ the ridge heights above Mr Linker's natural ground level are well within the 9.5m control, being 9.1m at the centre line of the front skillion and 9.0m at the centre line of the rear flat roof." 91 The balance of the architects' letter set out detailed calculations supporting the above summary. In particular it was noted that Mr Linker's "natural ground level" was located at the centre line of the site which was lower than natural ground at the southern wall because of the south/north slope of the site at the front boundary. The north/south slope 0.57m implied that natural ground at the southern wall was about 0.23m higher than natural ground at the centre line. Consequently, the wall heights above natural ground level on the southern wall (that adjoining the appellant's property) relevantly varied from 7m at the front, 7.62m at the mid point and 8.25m at the rear, a maximum exceedence of the control of 750mm. It was noted that the difference between those wall heights and those estimated by the architects as being 7m, 7.55m and 8.1m at the same points along the southern wall were minimal. 92 Finally, again using Mr Linker's interpreted natural ground level, it was noted that the ridge heights of the front skillion roof was 9.1m and the rear flat roof 9m, both being well within the control of 9.5m. 93 The application came before the next meeting of the DCC held on 6 December 2005. It was noted that the matter had last been considered by the DCC on 22 November 2005 when it had been deferred to allow council officers to confirm the height and set back details in the application. Reference was made to the DBU's supplementary report of 29 November 2005 and to its report of 11 November 2005 which had previously been considered by the DCC. 94 It was moved by two councillors that the application be refused on eight grounds. A foreshadowed motion was put by two other councillors that the application be approved subject to the conditions contained in the DBU's report of 29 November 2005 together with two additional conditions of no present relevance. The motion was put and declared lost, six councillors being in favour and five being against. The foreshadowed motion then became the substantive motion and was put and carried. It should be noted that 11 out of the 12 council members were present and voted at this meeting. 95 A rescission motion with respect to the decision to approve the application was then lodged which came before the next meeting of the Council itself on 13 December 2005. The extract from the minutes of that meeting, which were in evidence before the primary judge, noted that the DBU's reports of 11 and 29 November 2005 were attached to the meeting's agenda. The rescission motion was adopted with the result that the DCC's decision on 6 December 2005 was rescinded. The minutes then record that as there was no substantive motion before the Chair, the motion was moved and seconded that the application be approved in accordance with the decision made by the DCC at its meeting held on 6 December 2005 subject to an additional four conditions of which one relevantly required the external wall heights throughout the building to be reduced by 150mm. It may be a coincidence but 150mm was the difference in the southern wall height at the rear of the building between the architects' imputed natural ground line and that determined by Mr Linker. If it was not a coincidence, then it can be inferred that the councillors were aware of Mr Linker's report and the architects' covering letter of 2 December 2005. 96 The result of so reducing the external walls by 150mm would be that the wall heights above Mr Linker's determined natural ground level on the southern wall would comply with the maximum of 7.5m both at the front and mid point of that wall but would exceed the maximum by only 60mm at the rear. The motion to approve was duly carried and the decision notified to the architects by a document entitled "Notice of determination of a development application" in a form which complied with cl 100 of the Regulation and which was dated 13 December 2006. 97 Two further facts need to be noted. The first is that apart from the relevant council officers who inspected the site, five councillors also inspected it. This fact was stated to the primary judge on behalf of the second respondent and not disputed by the appellant or her agent. There was also before the primary judge the rescission motion by two councillors referred to in [95] above and which stated that the purpose of the motion was "to have a site inspection". There was no evidence as to whether or not that inspection took place. 98 The second fact concerns the manner in which the matter was dealt with by the Council at its meeting on 13 December 2005. There was no evidence before the primary judge as to the extent or nature of the debate, if any, by the councillors at that meeting although it was stated without denial or objection to his Honour on behalf of the second respondent that the appellant and two of her experts had been invited to address the Council at that meeting and that they had taken the opportunity to do so. 99 There was no submission by the appellant to the primary judge which suggested that the councillors or at least some of them did not visit the site; nor was there any suggestion that at either of the meetings of the DCC which dealt with the application or of the Council itself which dealt with it on 13 December 2005, the appellant and those assisting her did not avail themselves of the opportunity to address the councillors or that there was no discussion between the councillors at either the DCC meetings or the Council meeting with respect to the issues which the application raised. I mention these matters only because the appellant now seeks to assert that there was no evidence of any such site inspections or of any debate or discussion amongst the councillors at the meeting of 13 December 2005 with respect to the merits or otherwise of the application and, in particular, no evidence that the councillors were either aware of or, if aware, considered the "controls" in DCP2 and DCP14. 100 However, I note that in para 37 of an unsigned affidavit purportedly sworn on 11 October 2006 which was accepted by his Honour only on the basis that it was a submission and not evidence, the appellant asserted that objectors were not advised of Council meetings in order to offer them the opportunity to speak. In that affidavit the appellant had the opportunity to depose as to whether she attended the meeting of 13 December 2005 and, if so, as to what transpired thereat. She did not do so. The onus lay upon her to establish on the balance of probabilities that there was no discussion or debate by the councillors at the meeting. It was not sufficient to discharge that onus to merely assert that there was no affirmative evidence tendered to his Honour by the respondents that there was discussion or debate.

[54]

The decision of the primary judge 101 During his recitation of the relevant facts, the primary judge noted (in [2]) that a number of councillors had inspected the site and met with the architects as a consequence of which further amended plans had been submitted on at least two occasions before the meeting of the DCC on 27 September 2005. At [11] his Honour again noted that councillors had visited the site as well as the surrounding properties "on several occasions" and that as a direct consequence of the objections made on the visits by the councillors, amended plans had been prepared to deal with the concerns expressed. 102 At the hearing below the appellant sought to tender further evidence of Mr Surveyor Robinson relating to the height of the proposed dwelling as related to the natural ground level for the purpose of determining its shadow impact upon her property. In this regard Mr Robinson had instructed the operator of a cherry picker hired for the purpose to position the top rail of its cage at the assumed height and position of the critical corners of the proposed dwelling in order to photograph the length of the shadows cast by the cage at particular times. 103 A conference was held between the architects who designed the proposed dwelling as well as architects retained by the appellant who jointly agreed that it was not possible to identify from the photographs where the relevant shadows fell or to position with any accuracy the height of the top rail of the cherry picker relative to the height of the proposed dwelling. His Honour (at [13]) observed that the demonstration with the cherry picker was not available to the Council prior to the making of its decision but that even if it was, its accuracy was questionable and could not be relied upon in order to found an adverse decision with regard to the extent of the overshadowing of the appellant's property. Nonetheless his Honour noted from the Council's records that overshadowing was a prominent issue raised by the appellant and was given "due consideration", as clearly it was. 104 The primary judge then observed (at [14]) that the appellant's agent had asserted that the decision of the Council to grant the Consent was manifestly unreasonable as the proposed dwelling was too big, too high, contained too much parking, too little set back and was inconsistent with the streetscape. After stating the applicable principles with respect to Wednesbury unreasonableness as summarised by Jagot J in King, Markwick, Taylor & Ors v Bathurst Regional Council [2006] NSWLEC 505; (2006) 150 LGERA 362, his Honour rejected the appellant's case, reasoning as follows: "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 Gargan 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."

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The appellant's original submissions on the appeal 105 In my opinion, the gravamen and essential thrust of the appellant's original submissions are encapsulated in the following passage: "…The appellant submits that if a council properly and genuinely takes these matters [namely, the relevant provisions of the LEP, DCP2 and DCP14 referred to in [20], [21], [24] and [25] above] into consideration, it is all the more difficult to identify how any rational, let [alone] reasonable council could permit an application such as the present which involves a very large three storey house, which exceeds the prescribed floor space ratio, exceeds the prescribed height limitations, creates significant overshadowing of the appellant's residence, provides for at least double the maximum car parking provision and cuts down the extent of the neighbouring properties' existing views, light and breeze. A large three storey house with garaging for four cars and with a significantly greater floor space ratio than that permitted by Council's own controls must have a greater adverse effect on the environment and amenity of the neighbourhood than would a two storey house with a complying floor space ratio, which does not create significant overshadowing and provides for garaging for only two cars." 106 I observe at this point that the difficulty with the proposition encompassed in that submission is that it presumes, wrongly in my opinion, that a development which exceeds the floor space ratio, height limitations and set back "controls" of DCP2 and the car parking provisions of DCP14 must necessarily be one which no rational or reasonable council could approve. Therein lies the flaw in the appellant's argument. Furthermore, the assertion implicit in the submission that the exceedence of the controls in question created significant overshadowing of the appellant's residence and cut down the neighbouring properties' existing views, light and breeze was simply not borne out by the material which was before the Council when it made its decision to grant the Consent. 107 The appellant nevertheless submitted that the Consent had been granted notwithstanding that both the external wall heights and the overall building height exceeded the maximum permissible levels of 7.5m and 9.5m respectively in circumstances where the Council ignored the appellant's case that the breaches were greater because the measurements were taken from a point above natural ground level. Support for that proposition was sought in the table to the DBU's report of 29 November 2005 set out in [82] above. However, the submission ignored the acknowledgment in that report that those measurements were taken from current spot levels of the site that did not necessarily correspond with the natural ground level from which any determination of height under the relevant control in DCP2 was required to be measured. 108 The submission also ignored the subsequent report of Mr Linker who clearly had greater knowledge of the original levels of the site than did either Mr Robinson or the Council officers. There is no reason to believe that the councillors were unaware of Mr Linker's determination of the natural ground level or the content of the architects' letter of 2 December 2005 referred to in [90] above. The letter asserted that based on Mr Linker's determination of natural ground level, there was no exceedence of the maximum height limit of 9.5m and that after taking into account the further reduction of 150mm required by the Council in the additional condition imposed at its meeting of 13 December 2005, the maximum extent of the exceedence of 7.5m control by the southern wall of the proposed dwelling would be only 60mm. In those circumstances it would be difficult to suggest that that was a significant departure from the control or that it had any relevantly significant impact upon the overshadowing of the appellant's rear yard given the extent of that overshadowing depicted on the shadow diagrams prepared with respect to Revision E of the plans which both the DBU and the DCC considered acceptable. 109 The appellant went further and submitted that the Council had failed to consider the matters set out in DCP2 or DCP14 at all (my emphasis) or, alternatively, had failed to consider certain specific provisions of those DCPs and/or had failed to give proper, genuine and realistic consideration to those provisions. The provisions so identified were those to which I have referred in [35]-[40] above. The appellant supported this submission by asserting that the Council had not given any reasons for its decision on 13 December 2005 to grant the Consent and had called none of the councillors to give evidence as to the matters which they had taken into account in determining the application; nor had any of the officers who had prepared any report or briefed the councillors been called to give evidence. The submission overlooked the fact that the Council was not required to give reasons for its decision. 110 Further support for that submission was sought in the minutes of the Council meeting held on 13 December 2005 (Blue 2/411-412) which recorded only the motions that were put at that meeting. As s 375 of the Local Government Act 1993 required a council to "ensure that full and accurate minutes are kept of the proceedings of a meeting of the council", it was therefore to be inferred that those minutes contained, so it was said, a full and accurate record of all that occurred at the meeting with respect to the councillors' consideration of the application. It follows that as those minutes did not record that there was any discussion or any deliberation by the councillors at the meeting or any consideration of any reports by those councillors in coming to their decision, there had been none. 111 The foregoing submissions of the appellant were not advanced before the primary judge. As I have already observed, at first instance the appellant confined her case to the ground of manifest unreasonableness. The pleaded ground of failure of the Council to take into consideration those provisions of DCP2 with respect to height, floor space ratio, set backs and car parking was not pursued as an independent ground of invalidity although those alleged failures were relied upon as founding the ground of manifest unreasonableness. For these reasons the respondents submitted that no evidence was called by them which would have responded to the case which the appellant now seeks to advance. 112 The respondents also submitted that the document containing the minutes of the meeting of 13 December 2005 tendered before his Honour and upon which the appellant bases her submissions, as the heading to the document confirms, was only an extract from the relevant minutes and that there existed a more expansive minute in relation to the Council's consideration of the application at that meeting which was not adduced before the primary judge and is therefore not contained in the appeal books. Nevertheless, as noted in [98] above, the second respondent had stated to his Honour without contradiction that the appellant and her experts had been invited to address the Council at its meeting on 13 December and had in fact done so, although that is not recorded in the extract from the minutes upon which the appellant now relies. 113 In the foregoing circumstances I would grant leave to the appellant to now assert that at its meeting on 13 December 2005 the Council, as a collegiate body, failed to take into consideration and/or failed to give proper, genuine and realistic consideration to the provisions of DCP2. However, I would not grant that leave with respect to the issue now raised with respect to DCP14. Nevertheless, as will appear, in my opinion the appellant has failed to discharge the onus of establishing this further ground of alleged invalidity: see [100] above. I shall return to this matter later in these reasons. 114 The appellant also submitted that the primary judge had erred in his conclusion that she had not made out the ground of Wednesbury unreasonableness. Although it was acknowledged that the Wednesbury test was "stringent" (Weal v Bathurst City Council [2000] NSWCA 88; (2000) 111 LGERA 181 at 188 [27]; Westfield Management Ltd v Perpetual Trustee Co Ltd & Anor [2006] NSWCA 245 at [71]), it was nevertheless contended that in the present context the decision of the Council could only stand if it could be concluded that a "reasonable" councillor, giving proper, genuine and realistic consideration to the relevant provisions of the LEP, DCP2 and DCP14, could have come to the decision he or she did. Accordingly, it was only if the Council complied with its obligations under s 79C(1) of the EPA Act that its decision to grant the Consent could avoid the conclusion that it was manifestly unreasonable. 115 Further, given the aims and objectives of the LEP and DCP2 which are directed to ensuring that development results in an improvement to the amenity of the area and a reduction in the impact of development on the environment, it followed (so it was submitted) that unless it could be established that departure from any of the relevant controls was unreasonable or unnecessary in the circumstances of the case or that the limit under DCP14 of two car parking spaces could be waived as to do so would achieve a better planning solution, no reasonable council could have granted the Consent. This was because the number of car parking spaces was double that permitted; the floor space ratio of at least 0.84:1 grossly exceeded the maximum applicable to the site of 0.51:1; there was gross exceedence of both height controls by approximately two metres; and the set backs from the side boundaries would inhibit the views, sunlight and breezes and give rise to substantial overshadowing of the neighbouring property to the south of the site. 116 The very fact that the exceedences referred to were so substantial necessarily led to the conclusion that the Council had failed to give proper, genuine and realistic considered to the controls in DCPs 2 and 14, thus resulting in its decision to grant the Consent being one which no reasonable council, understanding its statutory obligations, could have made.

[56]

The relevant legal principles 117 As I have indicated, the appellant has cast her argument in terms that the Council was required to give "proper, genuine and realistic consideration to the merits in the case". As Basten JA, with the agreement of Handley JA and Hunt AJA, observed in Kindimindi v Lane Cove Council [2006] NSWCA 23; (2006) 143 LGERA 277 at 297 [14], that terminology is taken from the judgment of Gummow J in Khan v Minister for Immigration & Ethnic Affairs (1987) 14 ALD 291. But as his Honour pointed out, that terminology should not be turned into an assessment of the adequacy of the consideration accorded in a particular case. That kind of challenge must be assessed on manifest unreasonableness grounds. 118 It is instructive to note the following further observations of Basten JA in Kindimindi (at 297): "75 The dangers in giving too much weight to qualifying terminology in this area of judicial review were noted by Spigelman CJ in Bruce v Cole (1998) 45 NSWLR 163 at 186E: 'These particular formulations must be treated with care, so that the relevant/irrelevant considerations ground is not expanded to permit review of the merits. That ground is restricted in accordance with the now classic judgment of Mason J in [ Peko Wallsend ], to matters which the decision maker was obliged to take into account.' 76 In Weal v Bathurst City Council (2000) 111 LGERA 181, Mason P, although "attracted to" the language adopted by Gummow J in Kahn , adopted a constrained approach to review of a council's decision-making process. On the other hand, Giles JA (with whom Priestley JA agreed) stated at [80]: 'Taking relevant matters into consideration called for more than simply adverting to them. There had to be an understanding of the matters and the significance of the decision to be made about them, and a process of evaluation, sufficient to warrant the description of the matters being taken into consideration… ' 77 This latter formulation appears to treat identification of the correct test as a matter of construction of the clause "take into consideration" in the chapeau of s 79C(1). With respect, that approach runs the risk of falling foul of the admonition contained in the judgment of Spigelman CJ in Bruce v Cole , with whose reasons Mason P and Sheller and Powell JJA agreed. 78 The force of the statement in Bruce v Cole may, however, have been mitigated to some extent by the adoption by his Honour in Zhang v Canterbury City Council (2001) 51 NSWLR 589 of the language of Gummow J in Kahn . Although there is reference to the passage in Bruce v Cole (at [62]), at [64] the Chief Justice noted, by reference to Parramatta City Council v Hale at p 339, that "mere advertence to a matter required to be taken into consideration is not sufficient". The reference in Hale , at p 339, in the judgment of Moffitt P read as follows: 'It was put to us that the authority could consider relevant matters and reject them. An assertion in these terms has an ambiguity likely to produce error. If the submission means that it is sufficient that the authority advert to a relevant matter and that it can then discard it, the submission must be rejected, because the requirement is that the matter shall be taken into consideration.' 79 So much must be accepted: the danger is that adoption of the epithets such as "proper, genuine and realistic" consideration, may be understood to qualify the statutory terminology in a manner inconsistent with accepted principles in relation to judicial review. As noted in Bruce v Cole , they risk an assessment of the nature of the consideration which will encourage a slide into impermissible merit review. …" 119 His Honour, with the agreement of Beazley JA, repeated these sentiments in Belmorgan Property Development Pty v GPT Re Ltd [2007] NSWCA 171; (2007) 153 LGERA 450 at 467 [76]-[78], adding the following pertinent observation (at [78]): "That is not to say that to give grossly inadequate weight to a matter of some importance may not provide a basis for review; however, to qualify as a ground of judicial review, such conduct must satisfy the test of manifest unreasonableness as applied to the exercise of the power: see Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1985-86) 162 CLR 24 at 41 (Mason J). It is not helpfully reflected in a supposed obligation to give "realistic" consideration to a particular matter."

[57]

See also, Insurance Australia Ltd t/a NRMA Insurance v Motor Accidents Authority of New South Wales [2007] NSWCA 314 at [40]. 120 A further convenient statement of the relevant principles which I would gratefully adopt is that of Preston CJ in Walsh v Parramatta City Council [2007] NSWLEC 255 where the Chief Judge said (omitting citations): "56 An applicant dissatisfied with the merit assessment and outcome of an exercise of discretionary power by a consent authority make (sic) seek to disguise a challenge on those merits in terms of recognised grounds of judicial review, such as the relevant considerations grounds. A court should see through the disguise. The court must avoid the temptation to express the conclusion in terms of a recognised ground of review while in truth making a decision on the merits. … 57 The formulation of 'proper genuine and realistic consideration', invoked by Mr Walsh to describe the consideration required from the Council in his submission, has been criticised by the courts. Too ready an employment of the test causes the category of judicial review of failure to consider relevant matters to elide into a review on the merits or an appeal on the facts. … 58 It is not for a party affected by a decision, or a reviewing court to make an exhaustive list of the matters which a decision maker might conceivably regard as relevant then attack the decision on the ground that a particular one of them was not specifically taken into account:…. 59 The considerations that are relevant are to be identified 'primarily, perhaps even entirely', by reference to the statute imposing the power on the decision maker rather than the particular facts of the case that the decision maker is called on to consider…. 60 The level of particularity with which a matter is identified in the statute may be significant where the failure complained of is not a failure to consider a certain subject matter, but a failure to make some enquiry about facts said to be relevant to that subject matter. For the applicant to succeed, the statute must expressly or impliedly oblige the decision maker to enquire and consider the subject matter at the level of particularity involved in the applicant's submission… 61 The relevant considerations ground is concerned essentially with whether the decision maker has properly applied the law. It is not a ground that is essentially concerned with the process of making the particular findings of facts upon which the decision maker acts… 62 An applicant who undertakes to establish that an administrative decision maker improperly exercised power should not be permitted under colour of doing so to enter upon an examination of the correctness of the decision, or of the sufficiency of the evidence supporting it, or of the weight of the evidence against it, or the regularity or irregularity of the manner in which the decision maker has proceeded. The correctness or incorrectness of the conclusion reached by the decision maker is entirely beside the question: … 63 Proper consideration of a relevant matter does not demand factual correctness. It is wrong to equate relevancy with factual correctness: … . A wrong assessment of the consideration the decision maker takes into account is not a reviewable error of law…" 121 The principles applicable to the ground of manifest unreasonableness are equally well established. They were conveniently summarised by Jagot J in King v Bathurst Regional Council [2006] NSWLEC 505; (2006) 150 LGERA 362 where her Honour noted (at 378[63]) that there was 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 application of the Wednesbury principle requires the exercise of proper judicial restraint. … 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' …the ground must be 'extremely confined', or else 'the gate to judicial review of the merits of the decision or action' would be open." 122 In Murrumbidgee Ground Water Preservation Association Inc v Minister for Natural Resources [2005] NSWCA 10; (2005) 138 LGERA 11 at 45 [129], Spigelman CJ with whom Beazley JA and myself agreed, said: "Perhaps the most appropriate formulation is whether the decision is 'illogical, irrational or lacking a basis in findings or inferences of facts supported on logical grounds'. "

[58]

See also Westfield Management Ltd v Perpetual Trustee Co Ltd at [71]. 123 In Save our Street Inc v Setteree & Anor [2006] NSWLEC 570; (2006) 149 LGERA 30 at 38 [29], Biscoe J, after summarising the relevant principles, referred to the following passage from the speech of Lord Cooke of Thorndon in R v Chief Constable of Sussex ex parte International Trader's Ferry Ltd [1999] 2 AC 418 at 452 (referred to by the Full Court of the Federal Court in Andary v Minister for Immigration and Multicultural Affairs [2003] FCAFC 211 at [10]) as containing a great deal of wisdom and practicality: "It seems to me unfortunate that Wednesbury and some Wednesbury phrases have become established incantations in the Courts of United Kingdom and beyond. Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223, an apparently briefly-considered case, might well not be decided the same way today; and the judgment of Lord Greene M.R. twice uses (at pp 230 and 234) the tautologous formula 'so unreasonable that no reasonable authority could ever have come to it'. Yet judges are entirely accustomed to respecting the proper scope of administrative discretions. In my respectful opinion they do not need to be warned off the course by admonitory circumlocutions. When, in Secretary of State for Eduction and Science v Tameside Metropolitan Borough Council [1997] AC 1014, the precise meaning of 'unreasonably' in an administrative context was crucial to the decision, the five speeches in the House of Lords, the three judgments in the Court of Appeal and the two judgments in the Divisional Court all succeeded in avoiding needless complexity. The simple test used throughout was whether the decision in question was one which a reasonable authority could reach. The converse was described by Lord Diplock, at p 1064 as 'conduct which no sensible authority acting with due appreciation of its responsibilities would have decided to adopt'. These unexaggerated criteria give the administrator ample and rightful rein, consistently with the constitutional separation of powers." 124 Biscoe J then continued in these terms (at 38): "31 There is a distinction between a decision which the court considers is unreasonable, and a decision which the court considers is so unreasonable that no reasonable body could have come to it. The latter requires ' something overwhelming ': Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at 627 [44] per Gleeson CJ and McHugh J, citing Lord Greene MR in Wednesbury (above) at 230. I agree with Rares J in Tran v Minister for Immigration & Multicultural Affairs [2006] FCA 1229 at [27] - [29] that there is a spectrum of unreasonableness and ' that between its extreme ends are many categories of decision with which courts might not agree or which they could regard as unreasonable but which a reasonable person could have made. The latter category of decision is immunised from judicial review because the legislature has confided to the decision-maker the task of forming the opinion or arriving at the state of satisfaction on the materials before him or her… Administrative decision-making, of its nature, involves the formation of value judgements… Value judgements are ones in respect of which there is room for reasonable differences of opinion, no particular opinion being uniquely right: cf Norbis v Norbis (1986) 161 CLR 513 at 518 per Mason and Deane JJ; 540 - 541 per Brennan J; see too at 535 per Wilson and Dawson JJ '. 32 In the present case, the question is not whether the Court disagrees with the council's decision or regards it as unreasonable. If it is a decision which a reasonable council could have made, it is immunised from judicial review on the Wednesbury unreasonableness ground because Parliament has given the council the task of formulating a judgement as to whether development consent should be granted." 125 Consistent with Lord Cooke's admonition is the following relevantly apt observation of Jagot J in MCC Energy v Wyong Shire Council [2006] NSWLEC 581; (2006) 149 LGERA 59 at 73: "53 Applying labels such as 'irrational', 'perverse', 'absurd', 'illogical', 'devoid of reason' and 'cardinal error' to matters about which minds may reasonably differ, does not maintain the critical distinction between merits and judicial review. Assessment of considerations that operate at the level of generality apparent in s 79C(1)(b) to (e) of the EPA Act necessarily leave to a consent authority a wide range of potential findings, many of which applicants for and objectors to development may consider in error in important respects. The capacity for strong disagreement based on sincerely held views about the level of impact caused by a development is not of itself a reliable indicator of a decision that is Wednesbury unreasonable. It is an indicator of an assessment process, such as contained in the EPA Act , which encourages participation by people with different, and potentially conflicting, interests in the outcomes of development."

[59]

The appellant's original submissions should be rejected 126 Irrespective of whether the appellant is alleging invalidity of the Consent upon the ground that the Council at its meeting on 13 December 2005 failed to take into account relevant considerations or upon the ground that its decision to grant the Consent was Wednesbury unreasonable, in either case the appellant's submissions to that effect should be rejected. Essentially the appellant seeks to support those grounds of invalidity on two bases. The first is the failure of the minutes of the meeting of 13 December to record the Council's reasons for granting the Consent or to make any reference to its deliberations particularly with respect to the matters that it took into account in coming to its decision. Allied with this submission was the alleged failure of the Council to call as witnesses one or more councillors to give evidence as to the matters they took into account, the extent to which they were briefed by any Council officer, the reports if any that they considered and, in particular, whether they took into account the requirement of cl 1.6 of DCP2 that the "controls" contained in that instrument could only be varied if it was demonstrated that compliance with the control was unreasonable or unnecessary in the circumstances of the case. 127 The second basis asserted was that the development the subject of the Consent significantly breached the floor space ratio and height controls provided in DCP2 and the car parking control provided in DCP14 in circumstances which were unjustified given the impact that the failure to comply strictly with those controls would have, particularly upon the appellant's property and its amenity. 128 A matter of significance, which the appellant seems to have overlooked, is that the DCC was a committee of the Council of which all councillors were members. In other words, it was what is known as a Committee of the Whole. So much is established by the extract from the minutes of the DCC meeting held on 6 December 2005 in which 11 out of the 12 councillors were present and voted. The same 11 councillors were present and voted at the meeting of the Council on 13 December 2005. There is no reason other than to infer that at the previous meetings of the DCC held on 27 September 2005 the same councillors were present and voted. At that meeting the DCC had before it the DBU's report of 14 September 2005 which recommended that the application be refused. At its meeting on 6 December 2005 and at the Council meeting of 13 December 2005 the minutes of each meeting record that there was before the DCC on the one hand and the Council on the other, the DBU's reports of 11 November 2005 and 29 November 2005. 129 Accordingly, the councillors had had before them all reports of the DBU, if not those of assessment officers Biller and Adey who recommended approval of the applicant as amended, and which dealt in considerable detail with each of the controls in DCP2 which the appellant now asserts were not given "proper, genuine and realistic consideration". On the contrary, it is clear from the content of those reports as well as the deferral of the application by the DCC first at its meeting of 27 September 2005 so as to allow the architects to submit amended plans which would have the effect of reducing the height of the proposed dwelling and second at its meeting on 22 November 2005 to allow Council officers to confirm the height and set back details of the application, that the councillors were at all material times well and truly appraised of not only the controls upon the exceedences of which the appellant relies, but also the impact which those exceedences had in terms of the environment generally and the amenity of the adjoining properties in particular. 130 As the primary judge correctly observed (at [18]), the Council was at great pains to inform itself before making its decision. As his Honour also noted, there was an intensive and far-reaching investigation over some 13 months which resulted in 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." In my opinion, the evidence comprising the contents of the Council's files on the application provide ample support for this finding. 131 Although it might be true that in the relevant reports there is no numerical reference to the relevant provisions of DCP2 or, for that matter, DCP14, the nature of the control and its detail was clearly referred to in the various reports in terms of the maximum permissible floor space ratio, the overall height of the building, the permissible external wall heights and set backs. As Hodgson JA, with whom Ipp JA and Davies AJA agreed, said in Hill v Woollahra Municipal Council [2003] NSWCA 106; (2003) 127 LGERA 7 at 24 [53]: "…so long as the body in question does address the question it is required to address, it does not have to refer explicitly to the statute or instrument that poses the question: the body is required to address the substance of the question, not the fact that the question is posed by a particular statute or instrument. Explicit reference to the statute or instrument will help confirm that the body did address the right question, but absence of such reference does not of itself indicate that it did not." 132 Furthermore as a general proposition, material in the possession of the Council will be treated as being in the possession of the councillors: Schroders Australia Property Management Ltd v Shoalhaven City Council & Anor [2001] NSWCA 74 at [67] per Ipp JA, with whom Spigelman CJ and Sheller JA agreed. Ipp JA further held (at [72]) that the principle in Jones v Dunkel (1959) 101 CLR 298 relating to the drawing of adverse inferences from a party's failure to call evidence had no application to the failure of the Council to tender evidence as to which particular documents were read by each councillor in the absence of proof of facts calling for such a response. No evidence was led by the appellant which established or from which it could be inferred that the councillors had not read the various reports in the Council's files. There was therefore no need for the Council to lead any affirmative evidence that they had. The onus of establishing that the councillors had not read and understood the various reports dealing in detail with the controls and other requirements of DCP2 upon which the appellant based her allegations of invalidity lay upon her. It was not discharged. 133 The appellant placed particular reliance upon the submission that nowhere in any of the relevant reports, let alone minutes of the meetings of the DCC or the Council, was there any reference to that provision of cl 1.6 of DCP2 which provided for the variation of those controls only where an applicant for consent was able to clearly demonstrate that a particular control was unreasonable or unnecessary in the circumstances of the case. 134 However, there could be little doubt that as DCP2 applied to all dwelling house development in the Council's area and had been in place since June 1999, the last amendment to it coming into force on 1 May 2003, the appropriate presumption consistent with the principles to which I have referred was that both the Council's assessment officers, the members of DBU and the councillors themselves were well aware of the circumstances under which the relevant controls could be varied or waived. 135 In my opinion references in those reports to various exceedences of the relevant controls being "acceptable" and to the objectives of the control being met despite numeric non-compliance, directly related to the requirement of cl 1.6 that notwithstanding the exceedence, application of the control was in the circumstances unreasonable or unnecessary. As a matter of common sense, it must follow in my view that if the objectives of a control are met and the impact of the exceedence of a particular control is acceptable, then to insist upon strict compliance with the control would be unreasonable or unnecessary in those circumstances: cf Winten Property Group Ltd v North Sydney Council [2001] NSWLEC 46; (2001) 130 LGERA 79 at 89 [26] and [27]. 136 In Winten Lloyd J was concerned with the requirements of cl 6 of SEPP1 to which I have referred in [36] above. His Honour considered that in determining whether a development standard was unreasonable or unnecessary in the circumstances of the case, required identification of the objective of the standard and whether compliance with the standard was unreasonable or unnecessary in the circumstances of the case. The latter requirement required one to look to see whether a development which complied with the standard was unreasonable or unnecessary. On the other hand, it also required consideration as to whether, in the light of the objectives of the standard, it was unreasonable and unnecessary to apply the standard to the particular development. 137 In the present case it was open to the Council to find that the objective of the relevant controls was met by the proposed dwelling such as to regard its strict application as being unreasonable or unnecessary in the circumstances. For example, the external wall height could only be complied with if the building was stepped from east to west. Yet on the basis of the architects' letter of 2 December 2005 enclosing Mr Linker's report as to the position of natural ground level, the maximum exceedence was only 750mm at the western elevation of the proposed dwelling receding to nil at the eastern elevation. Furthermore, the site was not a "steep site" upon which the design criteria in DCP2 relating to external wall heights required a building to be stepped. 138 In any event, the onus again lay upon the appellant to establish that the councillors, or at least those who determined to grant the Consent, did not consider cl 1.6 of DCP2 or at all or that it had been demonstrated that application of the relevant control was unreasonable or unnecessary in the circumstances of the case. Given the inferred knowledge of the councillors of the relevant variation provision in cl 1.6, no proper evidentiary basis existed which would enable an inference to be drawn which would discharge that onus. 139 Furthermore, even if it could be said that the variation test in cl 1.6 had not been strictly applied by the councillors, its application was not mandatory. In other words, the circumstances reveal that the councillors who voted to grant the Consent were satisfied that, notwithstanding the numerical exceedences of the relevant controls, the proposed dwelling was acceptable in terms of its impact upon the neighbouring properties and upon the environment generally. This being so, it was open to them to grant the Consent having taken into consideration the controls upon which the appellant has relied with knowledge of the extent to which they had been exceeded and the impact of those exceedences. 140 At the end of the day, the appellant's submissions with respect to those exceedences and their significance in terms of the neighbouring properties amount to a contention that the Council was simply wrong to grant the Consent and that, as a matter of merit, it should have refused the application. But that would be to depart from the principles of judicial review and to convert the appellant's present application into a merit appeal which is impermissible.

[60]

The appellant's further written submissions after judgment was reserved 141 During the course of the hearing of the appeal the parties agreed that the Court should proceed upon the basis of the arguments contained in the written submissions in the Orange Book (which included what I have referred to as the appellant's original submissions being those dated 24 May 2007) the appellant's written submissions in reply dated 6 September 2007, the appellant's amended written submissions dated 26 September 2007 and the appellant's supplementary submissions dated 3 October 2007. 142 Although not included in the Orange Book but in response to a Notice of Motion filed by the appellant on 3 October 2007, the Council filed supplementary submissions dated 11 October 2007 and the second respondent filed supplementary submissions of the same date. 143 The Court granted leave to the appellant to file written submissions responding to para 26 of the Council's supplementary submissions and to paras 3, 14-20 of the second respondent's supplementary submissions. The former merely asserted that even if there was an erroneous finding of fact by the Council, it did not constitute an error of law and further submitted that there was no error of law if there was only a misattribution of weight to a relevant consideration. 144 Paragraphs 14-20 of the second respondent's supplementary submissions related to the issue of whether the Council fully appreciated the differing opinions of its officers, the architects and Mr Robinson as to the location of natural ground level of the site insofar as it impacted upon the height of the proposed dwelling and its overshadowing of the appellant's property. 145 Notwithstanding the limited leave granted by the Court to the appellant to provide supplementary written submissions, on 23 October 2007 she filed a 22 page, 69 paragraph document entitled "WRITTEN SUBMISSION OF APPELLANT" (the final submissions) which, in para 1, stated that it was a written response by the appellant "to the issues in this appeal raised by the Amended Notice of Appeal and the Court as noted in the transcript on 12 October 2007." 146 A perusal of the final submissions reveals that, contrary to its stated purpose as set out above, they have not been confined to the matters in respect of which limited leave had been granted by this Court on 12 October last. On the contrary, the document canvasses the whole of the appellant's arguments being in many respects repetitive of the contentions advanced in her original submissions. Furthermore, they raised an entirely new issue which was neither advanced before the primary judge nor in the original submissions or, for that matter, raised in the Amended Notice of Appeal. This new issue related to s 82A of the EPA Act pursuant to which the Council had purported to grant the Consent. The thrust of the final submissions was that the Council had no power to grant the Consent pursuant to s 82A and that its purported attempt to do so was void. 147 As leave to file the final submissions was neither sought nor granted, authority requires that they should be ignored except for para 66 and the material to which that paragraphs refers: Carr v Finance Corporation of Australia Ltd [No 1] (1981) 147 CLR 246 at 258 per Mason J; In the matter of an application by the Chief Commissioner of Police (Vic) [2005] HCA 18; (2005) 79 ALJR 881 at 890 [53]-[54] per Kirby J; Dwyer v Commonwealth of Australia (1995) 31 ATR 48; Kirwan v Cresvale Far East Ltd (In liq) [2002] NSWCA 395; (2002) 44 ACSR 21 at [340] per Young CJ in Eq; Chapmann v Caska [2005] NSWCA 113 at [19] per Beazley, Giles and Tobias JJA. As Mason J said in Carr and Kirby J in ex parte the Commissioner of Police, the notion that supplementary submissions can be filed without leave is misconceived and this is so even if the other party to the proceedings consents. It should not occur. 148 The respondents have objected to the Court considering the matters raised in the final submissions which are not the subject of the limited leave which this Court granted especially with respect to the submissions based on s 82A of the EPA Act which, as I have indicated, are not the subject of any ground in the Amended Notice of Appeal. Were it not for the fact that many of the matters raised in the final submissions are covered by the original submissions, I would have ignored them. However, as they are generally covered by the original submissions, I propose to shortly refer to them to the extent to which they purport to place a different slant upon the same issues raised in those submissions. 149 As to the appellant's ground of invalidity based upon s 82A of the EPA Act, there is no doubt in my view that those submissions should be ignored absent a grant of leave to raise that matter. However, as I am of the opinion that the submissions supporting that ground are misconceived, it is convenient to deal with them. 150 Leaving aside for the moment the submissions based upon s 82A of the EPA Act, the contentions of the appellant and my response to them are as follows:

[69]

(i) The final submissions then turned to the ground of Wednesbury unreasonableness. It was accepted that evidence was not admissible as to what was or was not reasonable and that the Court's assessment was " ultimately intuitive having regard to the legislation and the nature of the determination ". It was further conceded that the Court's objective view as to whether the decision was wrong by which was meant unreasonable, was irrelevant but that on the other hand unless the decision was shown to be wrong the starting point of Wednesbury unreasonableness was not reached. Thereafter, it was a matter of degree. This is one of the difficulties with which the appellant was faced as it is not self-evident that the decision to grant the Consent was " wrong ", whatever that might mean. Even if it was, it had to be so wrong that no reasonable council understanding its responsibilities could have granted it. (j) It was next submitted that the controls in DCP2 constituted "the four corners within which the decision must be made, and in this sense they are the standard of reasonableness". The negative impacts resulting from the exceedences of the controls were, so it was submitted, "significant overshadowing [especially in winter], significant loss of amenity to the appellant and her neighbours derived from the intrusive bulk, the imposing height and location of the proposed development, as well as view loss and loss of cooling breezes in the summon and warming sunlight in the summer (sic)". (k) If the first of the above submissions was intended to assert that any development that failed to comply with the numerical controls in DCP2 must, ipso facto, be Wednesbury unreasonable, then such a submission must be rejected as contrary to both principle and authority. As to the second part of the submission, the matters raised have already been dealt with above when considering the appellant's original submissions. Each of the impacts referred to was extensively addressed in the various reports to which reference has already been made. Whether the departure of the proposed dwelling as depicted in the amended plans the subject of the Consent, from the relevant controls, was such as to mandate refusal of the application was clearly a matter upon which the different minds of the councillors divided: hence the vote being 6:5 in favour. It is a long bow for the appellant to assert that the decision of the majority was, in effect, devoid of any plausible justification. The appellant's submissions in this regard were not assisted by the assertion that each non-compliance was not just marginal but gross. The same observation could be made with respect to the submission that the Council completely ignored DCP2 and, one assumes, DCP14 as well as the Act, "which were utterly foreign to them. In short the council said, black is green - we approved, and we won't tell you why."

[70]

(l) The appellant further asserted in the final submissions that the decision of the Council was Wednesbury unreasonable "because it granted consent for a clearly non-complying application over objection from the community without changing its prior determination refusing consent, without debate, without giving reasons, using the wrong form of notice of determination, without reference to the DCP or the controls and the by the adoption of a patently inconsistent position in the resolution itself concerning ground levels." The last-mentioned is a reference to additional Conditions 1 and 2, the first of which limited the height of all walls around the front garden and returns to the front building alignment to a maximum 1200mm above natural ground level whereas the second required all rear and side fences up to the rear of the front building line to be a maximum of 1800mm above existing ground surface. In my view there is nothing inconsistent between the reference to natural ground level in the first of those conditions and existing ground surface in the second as they are each directed to achieving a different objective. In any event, the wrapped up submission to which I have referred does not advance the appellant's case. (m) Finally, it was contended that the Council's decision was made without reference to or acknowledgment of the requirement of cl 1.6 of DCP2 that variation of the controls could only occur where it was demonstrated that compliance therewith was unreasonable or unnecessary in the circumstances of the case. The submission was repeated that there was no evidence that the Council had even considered that provision. The evidence established, so it was contended, that the departures from the controls were so "extensive, excessive and intrusive, and there was no or no plausible foundation for a conclusion that the departures from the controls were reasonable or necessary or that this was every considered. In such respect or respects the decision on this basis also was manifestly unreasonable in the relevant sense."

[71]

(n) The foregoing contention was also made in the original submissions and my response thereto applies to the present contention. In my opinion, given the extensive amendments to the plans of the proposed dwelling after the application was first refused on 23 February 2005, it was open to the Council to conclude that compliance with the relevant controls in DCP2 was unreasonable or unnecessary in all the circumstances. Furthermore, notwithstanding that cl 1.6 was not in terms mentioned in any of the reports with respect to the application, of itself that does not establish on the balance of probabilities that either the officers who dealt with the application (of which there were at least three planning officers) or the councillors were unaware of the provisions of cl 1.6 and, when ultimately determining that the amended plans achieved the objectives of the controls and that the impacts from the non-compliances were acceptable, were not purporting to apply the requirements of that provision of the DCP. 151 I turn now to the appellant's submissions with respect to the relationship between the Council's decision to grant the Consent and s 82A of the EPA Act. That section was relevantly in the following terms: "(1) If the consent authority is a council, an applicant may request the council to review a determination of the applicant's application … (3A) In requesting a review, the applicant may make amendments to the development described in the original application, subject to subsection (4)(c). (4) The council may review the determination if: … (c) in the event that the applicant has made amendments to the development described in the original application, the consent authority is satisfied that the development, as amended, is substantially the same development as the development described in the original application. (4A) As a consequence of its review, the council may confirm or change the determination. … (7) The council must give notice of the result of the review to the applicant as soon as practicable after the review. (8) If on the review the council grants development consent, or varies the conditions of a development consent, the council must endorse on the notice the date from which the consent, or the consent as varied, operates. (9) If on a review the council changes a determination, the changed determination replaces the earlier determination as from the date of the review. … (11) A decision on a review may not be further reviewed under this section." 152 Although spread throughout the final submissions, the appellant's contentions with respect to s 82A may be summarised and responded to as follows:

[81]

(d) The appellant also relied upon the Gannon & Brindle survey to contend that the north point shown on the architects shadow diagrams did not depict true north which is correctly endorsed upon the survey. It was not suggested in the final submissions that it was argued before the primary judge that true north was as depicted upon the Gannon & Brindle survey although the point was raised before his Honour but rejected by him (at [18]) as not borne out by the evidence. Nor does there appear to have been any evidence before his Honour as to the effect that the difference between the north point shown on the survey and that shown on the shadow diagrams (which is slight) would have in terms of the extent of overshadowing of the appellant's property, particularly in mid-winter. The north point shown on the survey is further to the west than that shown on the architect's shadow diagrams. The impact of difference would be that at 9am and 12 noon at the winter solstice there would be slightly less shadow cast by the proposed dwelling on the rear yard of the appellant's property at 9am and a slightly greater shadow cast upon the frontage of her property at 12 noon. It was not suggested that this was a matter raised by the appellant or Mr Robinson in the material which the appellant lodged with the Council. Although the location of the natural ground level was in issue, the accuracy of the architect's shadow diagrams was not. Mr Robinson did not question that aspect of the shadow diagram although it was sought to make something of the issue before the primary judge when it was contended that the proposed dwelling would exceed the external wall height of 7.5m which would have an impact on the overshadowing of the appellants property in mid-winter. But there was no evidence tendered to his Honour that the allegedly correct position of the north point on the architect's shadow diagrams would have resulted in an additional impact if they had been prepared in accordance with the position on true north, said to be endorsed on the Gannon & Brindle survey. In those circumstances the appellant should not be permitted to advance Ground 5 of the Amended Notice of Appeal. In this respect I confirm the reasons for that view expressed by me in [30] above. 155 Accordingly, it follows from the foregoing that even if the appellant was permitted to advance the contentions contained in her final submissions, they should be rejected.

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Cases Cited (41)