Appeal ground 3: application of cl 8 of SEPP 1
71It is submitted by the appellant that the Commissioner failed to consider "the public benefit of maintaining the planning controls" conformably with the requirements of cl 8 of SEPP 1. As will be recalled from my earlier recitation of cl 7 of the Policy, the exercise of the discretion to grant development consent afforded by that clause is expressed to be one to be exercised "with the concurrence of the Director". I have already noted that the need for such concurrence does not arise where the discretion is being exercised by the Court: s 39(6).
72Clause 8 of SEPP 1 provides:
" 8 Concurrence
The matters which shall be taken into consideration in deciding whether concurrence should be granted are:
(a) whether non-compliance with the development standard raises any matter of significance for State or regional environmental planning, and
(b) the public benefit of maintaining the planning controls adopted by the environmental planning instrument."
It is by reference to the provisions of cl 8(b) that, according to the appellant's submission, the Commissioner failed to give any consideration to the public benefit of maintaining the planning controls adopted by the LEP.
73Although not identified by number, it is apparent from [45] that the Commissioner was aware of the provisions of cl 8. Her statement of the requirement to "have regard to any regional or state issues" in the context of reference to SEPP 1 can only be a reference to the provisions of cl 8(a). No other provision of the Policy so requires.
74While no reference is made, in terms, either to cl 8(b) or the consideration required by that paragraph, as the respondents submitted, the consideration given by the Commissioner to the standards, their purpose and satisfaction of that purpose "is embedded" in the Commissioner's consideration of the public benefit derived from adherence to the expressed standards. Her consideration amply demonstrates a consideration of that benefit derived from a comparison between a development meeting the requisite height standards and that proposed which did not do so.
75This consideration by the Commissioner, so it seems to me, was manifest at two levels. First, there was the relevant comparison made by considering those particular properties adjoining the site upon which impact from non compliance with the standard might be experienced. Second, there was consideration manifest at [51] of the judgment by identifying the area in which the site was located as being one in transition in which, in apparent conformity with the objectives of the provisions of the planning instrument as a whole, single dwelling house sites were being redeveloped or likely to be redeveloped with residential flat buildings. That prospect was consistent with the objective of the residential 2C zone, the relevant objectives of that zone having been identified by the Commissioner at [18].
76In that context, the Commissioner said at [51]:
"It is often a balancing exercise where there are dwellings within a residential flat zone where in the future, not perhaps the immediate future, these dwelling house sites will also be redeveloped to take advantage of the proximity to the city and the existing infrastructure. However in the interim change will not always be embraced.
This statement seems to me to reflect a balance of components of the public interest in the context of determining an objection under SEPP 1. That must surely be the kind of consideration identified in cl 8(b).
77It is also important to notice that the Commissioner was called upon to make her decision in the context of the issues as they were argued before her ( Segal v Waverley Council at [42] - [44]). While it is correct to observe that reference was made in submissions before the Commissioner to cl 8 of SEPP 1, that reference was made when reading the passage from [40] of the judgment of Preston CJ in Wehbe . Having referred the Commissioner to that passage, the appellant's submissions then sought to address the provisions of cl 8 by reference to the particular impacts that non-compliance with the height standard would have upon the occupants of properties immediately adjoining the site. (Tcpt, 22 June 2010, 25: 35 - 41).
78There being no submission before the Commissioner that she was legally required to consider any other identified areas or topics of the public interest relevant to the benefit of maintaining the controls found in the LEP, the appellant should not now be permitted to raise, on appeal, an asserted error by failing to consider more widely the topic than had been the subject of its submissions before the Commissioner ( Randall Pty Ltd v Willoughby City Council [2005] NSWCA 205; (2005) 144 LGERA 119 at [19]). Indeed, in its submissions before me, the appellant did not identify any relevant aspect of the public interest by reference to cl 8(b) that the Commissioner had failed to address.
79There is a further basis upon which the respondents' submit that this ground of appeal should not be sustained. That submission turns upon the obligation imposed by cl 8(b) in the particular circumstances that pertain to the hearing of the appeal before the Commissioner.
80The appellant drew attention to [40] of the Chief Judge's judgment in Wehbe where his Honour said:
"the Court must be satisfied that a consideration of the matters in cl 8(a) and (b) of SEPP 1 justifies the upholding of the SEPP 1 objection"
At [41] of his Honour's judgment, reference is made to the provisions of s 39(6) of the Court Act identifying the power of the Court to uphold an appeal in the absence of concurrence but indicating that the matters in cl 8 are relevant to the Court when exercising its power. The decision of the Court of Appeal in Fast Buck$ v Byron Shire Council is cited in support of that statement.
81The subject matter of the appeal in Fast Buck$ v Byron Shire Council was the refusal of a subdivision application by reason of non-compliance with a development standard and the attempt to address that non-compliance with an objection pursuant to SEPP 1. As the Council had, in the first instance, refused the development application, the concurrence of the Director under SEPP 1 had not been sought.
82An appeal from the Council's refusal to this Court was unsuccessful. In the Court of Appeal, the leading judgment was delivered by Handley JA (Giles JA and Sheppard AJA agreeing). In the course of his judgment, his Honour referred to the provisions of s 39(6) of the Court Act, indicating that it prevented the Court's appellate jurisdiction from being stultified by the exercise of a "power to veto" a determination by refusing concurrence. His Honour continued (at [27]):
"On a merits appeal the Court would be bound to take into account any reasons given by a [Director] ... Where the power has not been exercised, and reasons have not been given, the Court would also be bound to take into account any consideration that would be relevant to the exercise of the Director's power to grant or withhold his concurrence."
83The respondents distinguish the situation addressed in those judgments from those that pertain in the present circumstances. The respondents relied upon the provisions of cl 64 of the Environmental Planning and Assessment Regulation 2000 that enabled a "concurrence authority" (in this case, the Director) to give written notice to a consent authority informing it that concurrence may be assumed, subject to such qualifications or conditions as are specified in the notice. It was stated from the Bar table that such a notice had been given to the appellant indicating that the Director's concurrence under cl 8 of SEPP 1 should be assumed. This statement, made by senior counsel for the respondents, was not contradicted by Mr Rigg who appeared on behalf of the appellant.
84The respondents submit that where concurrence of the Director is either given or deemed to have been given then the requirement of the Court, on appeal, to address the provision of cl 8 is not mandated. The observations of Handley JA in Fastbuck$ identify the requirement to consider the provisions of that clause where the Director had not exercised the concurrence role. Where, as here, concurrence is deemed to have been granted, the matters identified in cl 8 are taken to have been considered and thus there was no obligation cast upon the Commissioner to have considered the provisions of the clause. While consideration of its requirements would not have been irrelevant, that consideration was not mandated such that any failure so to do would sustain legal error ( Minister for Aboriginal Affairs v Peko-Wallsend Limited [1986] HCA 40; (1986) 162 CLR 24).
85There is substance in this argument. The appellant did not seek to respond to it in reply. Given that cl 8 of SEPP 1 is specifically directed to the concurrence role, where that role has been exercised and no challenge is made to that exercise, it would not be consistent with the provisions of Policy to oblige the Court when hearing an appeal to further consider the matters identified in cl 8. I emphasise that such a proposition does not pertain where concurrence power has not been exercised, either directly or by delegation from the Director.
86The submissions advanced by the respondents and which I have accepted are advanced in the alternative. I accept them as being alternative arguments so that if, as I have held, the Commissioner did in fact appropriately address the requirements of cl 8 then the alternative argument based upon the Director's deemed concurrence is not necessary to sustain the decision that this ground of appeal should be rejected.