"evidence in this case shows that the amenity impacts of the hotel on adjoining and nearby dwellings are in a fine balance ."
29 The Commissioner concluded (at [55]) that he could find in the evidence no grounds to "curtail the provisions of" the DCP, "as applied in the existing conditions of development consent". Accordingly, he dismissed the appeal.
Grounds of appeal
30 Section 56A(1) provides an avenue of appeal against a Commissioner's decision "on a question of law".
31 The grounds of appeal in the applicant's Amended Summons dated 25 August 2009 assert that the Commissioner "erred in law" in:
1. finding that the provisions of the DCP applied to the modification application.
2. (a) finding that the provisions of the DCP should be applied, and/or
(b) failing to hold that the objects of the DCP had been complied with,
in the absence of evidence " to the contrary of good management performance and compliance with a plan of management (or management checklist)".
(The words in italics in ground 2 are adapted from s 3.1a of the DCP).
Consideration
32 When reviewing, in a s 56A appeal, a decision given by a Commissioner, in a class 1 appeal, the court must not adopt what has been described as "a fine-tooth comb approach" to the Commissioner's judgment. That primary judgment has to be examined as a whole, and individual comments reviewed in that context. The s 56A appeal is not a rehearing of the merits. See, e.g. Coles v Woollahra Municipal Council (1986) 59 LGRA 133 at 138; Castle Constructions Pty Ltd v North Sydney Council [2009] NSWCA 169 at [31]; Botany Bay City Council v Premier Customs Services Pty Ltd ("Premier") [2009] NSWCA 226 at [32].
33 Clearly, the Environmental Planning and Assessment Act 1979 requires the Commissioner to "have regard to" the DCP in reaching his decision on the merits. The DCP is a "mandatory relevant consideration". See s 79C(1)(a)(iii) and s 96(3) of the Act, and the Court of Appeal decisions in BP Australia Ltd v Campbelltown City Council (1994) 83 LGERA 274 at 278-279, (per Mahoney JA, Meagher and Powell JJA agreeing), Zhang v Canterbury City Council ("Zhang") [2001] NSWCA 167, (2001) 51 NSWLR 589, and Premier.
34 The applicant submits that the DCP does not apply to a modification application made in the circumstances of this case, because (1) the DCP was not in place when the consent was granted, (2) the "note" at the end of s 2.3 of it clearly states that the DCP cannot "derogate" from a pre-existing consent, and (3) the application is made under the terms of the consent, ie conditions 3(c) and 4(c), rather than those of the DCP.
35 The applicant submits that to apply it is "an error of law ... of significant moment" (written submissions par 33), but a strict application of that submission would render the DCP nugatory in achieving its stated aims and objectives, and I reject it. A modification application is a new application and the evidence shows that the Council applied the DCP to other s 96 applications (T 04.03.09, p15, L47 to p16, L8).
36 The respondent says that none of these arguments on ground 1 of this appeal was put to the Commissioner in any form, as a filed contention or as an oral submission, let alone in the form put to me, that both sides assumed before the Commissioner that the DCP applied, and that such submissions should not now be entertained in this appeal.
37 However, counsel for the respondent was prepared to strongly contest ground 1 on its merits in case I was against him on that primary submission. The respondent's case on ground 1 is that the DCP had to be considered, and the words of conditions 3(c) and 4(c) cannot confine the Council's discretion on the modification application, which, it is submitted, comes clearly within one or more pars (a), (c) and (d) of s 2.3 ([16] above).
38 Numerous authorities on not allowing a new argument to be raised by a party in a s 56A appeal were considered and summarised by Biscoe J in Bankstown City Council v Mohamed el Dana ("El Dana") [2009] NSWLEC 68, at [44]-[53]. Appeals heard by Commissioners are adversarial in character - Commissioners must address the real issues joined and argued before them, and the parties remain bound by the way their respective cases are conducted. Before the Commissioner in this case, counsel for the applicant submitted that the court should "give primary focus" to the DCP (T04.03.09 at p46, L38ff), as required by Zhang.
39 The applicant expressed concern that the application of the DCP could mean a "rolling series of trial periods", which would create "complexities" for, and not provide certainty to, a proponent. That submission would indicate that the applicant contended before the Commissioner that the DCP should not be applied (on a discretionary basis), rather than does not apply (as now argued in this appeal).
40 While the principles adopted in El Dana almost certainly require me to dismiss ground one, I am firmly of the view that it should not succeed in any event.
41 The Commissioner applied the DCP to his consideration of the present application, and both the Council and the Commissioner were clearly correct in doing so.
42 The "note" at the end of s 2.3 does not form part of the substantive terms of the DCP, but it can be used to inform its interpretation and application; for example, such notes can help resolve ambiguity in appropriate circumstances. (See s 35 of the Interpretation Act 1987, which does not apply to DCPs, and, eg, Pain J's observations in Marrickville Metro Shopping Centre Pty Ltd v Marrickville Council [2009] NSWLEC 109, at [42] and [46]). However, there is no ambiguity in this DCP - applying it to an application to modify a pre-DCP consent in no way either applies it retrospectively to that consent or derogates from it.
43 In the second and third grounds of appeal (2(a) and (b) in [31] above), the applicant submits that the Commissioner committed one or more errors of law in his actual application of the DCP. The applicant relies on established authorities that an error of law will exist where there is no evidence of a primary fact that is crucial to a decision: Azzopardi v Tasman UEB Industries (1985) 4 NSWLR 139, at 151; Bonim Stanmore v Marrickville Council (2007) 156 LGERA 12, at [9]-[14]; Mine Subsidence Board v Vervoon (2008) 165 LGERA 346, at [153] and [157].
44 I can find no such error.
45 Making good an "absence of evidence" ground requires a total "absence", and the Commissioner's judgment, summarised above, spells out the evidence before him. The applicant contended, in its Statement of Facts and Contentions, that the absence of official/statutory complaint requires the Council, or the Commissioner on appeal, to "entrench" the extended hours, but the DCP says that such complaints are to be considered "among other things", and the Commissioner was clearly correct in responding to objector/neighbourhood concerns, in the absence of statutory complaints. The objector concerns appeared to him, and now appear to me, to be balanced and moderate in tone. (The submissions made to Council on both the DA and the modification application were before the court).
46 The Commissioner's comment (in [54]) about "fine balance" was clearly based on the evidence that the residents were willing to tolerate current levels of impact on their amenity. (See their written submissions in Exhibit A2 at tabs 4 and 5, and the notes of their evidence on site - Exhibit 1 before the Commissioner, and tab 1 of Exhibit A1 before me).
47 The Council further contends that the expression "fine balance" is an acceptance of the submissions of the Council, concerning the evidence of the residents, by the Commissioner. In the proceedings, Ms Burns for the Council noted (T04.03.09, p9, L7ff):
"…it's at a level at the moment that they are willing to tolerate but anything beyond that, they wouldn't think would be reasonable impact on their amenity. So it's a very fine balance on the basis of that evidence , … [and] any slippage I guess in terms of the standard of management would tip the level of tolerability of that impact over the edge as far as the residents are concerned." (emphasis added).
48 The Commissioner summarised the residents' evidence thus (at [25]):
"they do not want the current nuisances to become worse… the trial periods provide some assurance that the existing owners and any new owners will run the hotel to the current standards."
49 The Commissioner further detailed the amenity impact on residents nearby (at [27]), and made particular reference to the resident who lives adjacent to the hotel (at [29]).
50 The applicant's submission that the finding was made without evidentiary foundation relevant to the terms of the development consent also cannot be supported. Conditions 3(c) and 4(c) allow the consent authority to consider "other things" besides substantiated complaints from statutory authorities. This leaves the Commissioner, on appeal, to have regard to other evidence, as dictated by s 79C(1), such as submissions from residents.
51 It is plain from the judgment that the Commissioner's finding (at [54]), is perfectly compatible with the evidence before him as well as his summary of the residents' evidence in [25], [27] and [29]. Accordingly, no error of law arises.
52 In respect of the applicant's third ground of appeal (2(b) in [31] above), that the Commissioner failed to find the objects of the DCP had been complied with, there was, indeed, evidence before the Commissioner demonstrating good management during the trial period. He dealt with the hotel's compliance with conditions under the DCP (at pars [48] and [49] of his judgment), and went on to find (in [54]) that "the DCP requires demonstration of long term success in hotel management maintaining that [fine] balance".
53 The Council contends that this ground of appeal canvasses issues already covered in the earlier grounds and that it should be rejected on the same bases. It further contends that the DCP's aims includes a requirement to "demonstrate responsible management over time" and "an ongoing commitment to good management" (emphasis added).
54 The Commissioner, having identified potential amenity impacts that were acceptable but finely balanced, reasonably found that the one year trial had not demonstrated "long term success", based on all the available evidence. Even if he had formally found that the aims and objects of the DCP had been complied with, he was still entitled to apply the relevant provisions of the DCP in his assessment of the s 96 modification.
Conclusion
55 No error of law has been established in this appeal, and it is dismissed, with costs.
56 All the exhibits may be returned.