Randwick City Council v Scarf

The Site 4The site has an area of about 1522 m 2 and a frontage of almost 23 m to Alison Road. It is irregular in shape with the rear section of the site forming a triangle. There is a fall of about 9 m from the rear north-western corner of the site to the street frontage. The site has apparently been benched in order to address this fall in the topography. 5The adjoining property to the north is known as 90 Alison Road. It presently has a single storey dwelling house erected upon it. The adjoining property to the south is known as 94 Alison Road. Erected upon it is a residential flat building, described by the Commissioner at [3] as being "of some eight to nine storeys in height over two levels of parking at grade". The site is also described as being surrounded by a number of other residential flat building "built over various eras and with different architectural treatments and styles." 6Opposite the site is Randwick Racecourse (referred to in the judgment as "Moore Park Racecourse").

Proposed development 7From the time of its lodgement with the appellant, development proposed for the site always involved demolition of the existing dwelling house and its replacement by a residential flat building. Following refusal of the application, amendments were made for the purpose of the application for review made to the appellant pursuant to s 82A of the EPA Act. Ultimately, the proposed development was further amended by leave of the Court so that it comprised a residential flat building that was part four and part five storeys in height containing sixteen apartments and twenty one basement car parking spaces, including four spaces for visitor parking.

Planning controls 8For the purpose of determining this appeal, it is accepted that there are two planning instruments of present relevance. The local environmental plan controlling development on the site was Randwick Local Environmental Plan 1998 ( the LEP ). Although the LEP was amended in January 2010, it is agreed by the parties that by operation of a savings provision contained in the amending instrument, the respondents' development application was required to be determined as if the amendment had not taken effect. Reference is therefore made to the LEP in the form that it took prior to the 2010 amendment, that being the basis upon which the Commissioner also made her determination. 9The site is zoned residential 2C under the LEP. Development of land so zoned for the purpose of "multi-unit housing" is permissible with consent. The expression "multi-unit housing" is defined in cl 49 of the LEP to mean "two or more dwellings, whether or not attached." That definition was apt to include the residential flat building proposed by the respondents. 10Important to be noticed for the purpose of these proceedings are the provisions of cl 33 of the LEP. That clause relevantly provides: " 33 Building heights (1) ... (2) The maximum height for a building, other than a dwelling house, within Zone No 2C is 12 metres measured vertically from any point on ground level. (3) ... (4) The maximum height for any external wall of a building, other than a dwelling house, within Zone No 2C is 10 metres measured vertically from any point on ground level. (5) ... (6) For the purposes of this clause, chimneys, vents and other service installations may exceed the specified height limits, but only where the Council is satisfied that it will not adversely affect the amenity of adjoining or nearby land. Purpose: To set upper limits for the height of buildings in residential and business zones that are consistent with the redevelopment potential of land in those zones given other development restrictions, such as floor space and landscaping, and have regard to the amenity of surrounding areas." 11Both of the height limits identified in subclauses (2) and (4) of cl 33 were breached by the design of the development proposed by the respondents. That breach was not uniform but varied throughout the site, given the fall in the ground level from rear to front. Indeed, the rear portion of the building did not exceed either control but the front portion exceeded both. 12In order to address exceedence of the height controls identified in cl 33, the respondents lodged an objection to compliance with those controls in accordance with cl 6 of SEPP 1. That clause allows a development application to be supported by a written objection that compliance with a "development standard" is unreasonable or unnecessary in the circumstances of the particular case. The appellant accepted that the provisions of cl 33 of the LEP contain "development standards" within the meaning of SEPP 1. By necessary inference, it also accepted that, properly addressed, the provisions of that Policy could operate so as to render permissible development that did not meet the requirements of cl 33. 13In determining to grant development consent, the Commissioner sought to exercise the discretion available to her pursuant to cl 7 of SEPP 1. That clause provides: " 7 Consent may be granted Where the consent authority is satisfied that the objection is well founded and is also of the opinion that granting of consent to that development application is consistent with the aims of this Policy as set out in clause 3, it may, with the concurrence of the Director, grant consent to that development application notwithstanding the development standard the subject of the objection referred to in clause 6." 14The aim or objective of SEPP 1, as expressed in cl 3, is to provide flexibility in the application of controls expressed through development standards where compliance in the particular case would "be unreasonable or unnecessary or tend to hinder the attainment of the objects specified in s 5(a)(i) and (ii) of the Act." It is to be noticed that the last of these requirements directed to the objects specified in s 5 of the EPA Act is expressed in the alternative to a demonstration that "strict compliance" is "unreasonable or unnecessary". In short, it is not necessary to demonstrate both that "strict compliance" is unreasonable or unnecessary and also that such compliance would tend to hinder the attainment of the objects expressed in s 5 of the EPA Act. 15Given that the Commissioner was, when determining the application before her, exercising the jurisdiction of the Court, the requirement for concurrence of the Director expressed in cl 7 of SEPP 1 was not required: s 39(6) of the Court Act. Nonetheless, matters that inform the grant of concurrence to a development of an application by the Director need to be noticed having regard to the submissions of the appellant addressed later in these reasons. 16An additional layer of planning control upon the site was imposed by the provisions of the appellant's Development Control Plan - Multi-Unit Housing ( the DCP ). It applied, in terms, to land that was zoned residential 2C under the LEP. There are two provisions of the DCP relevant to be noticed for present purposes. Chapter 3.2 addresses the topic of "height". It does so in narrative or discursive form in three parts. Clause 3.2.1 identifies objectives; cl 3.2.2 contains an "explanation" and cl 3.2.4 identifies two "performance requirements". 17Chapter 4.3 of the DCP is directed to "view sharing". Clause 4.3.1 identifies an objective of view sharing; cl 4.3.2 contains an explanation and cl 4.3.4 identifies three performance requirements. 18It will be necessary to address the requirements of the DCP further when dealing with the appellant's grounds of appeal. It is presently relevant to notice that while Ch 3.2 addressing height identifies the relevant clause of the LEP with which the DCP is apparently associated as being cl 33, the latter provision of the LEP is not so identified as being related to the view sharing provisions of Ch 4.3.

Grounds of appeal 19The brief description that I have given of the site, the development proposed for it and the applicable planning controls provides the necessary background to a consideration of the appellant's grounds of appeal. Those grounds are stated in its summons commencing the appeal as: "1. The Commissioner erred in law in finding the State Environmental Planning Policy No. 1 ('SEPP No. 1') Objection to the development standards in clauses 33(2) and 33(4) of Randwick Local Environmental Plan 1998 ('LEP') was well founded. 2. The Commissioner erred in law in failing to form the necessary opinion that the granting of consent was consistent with the aims of SEPP No. 1 as set out in clause 3 thereof. 3. The Commissioner erred in law in failing to consider the public benefit of maintaining the planning controls in clauses 33(2) and 33(4) of the LEP, as required by clause 8(b) of SEPP No. 1. 4. The Commissioner erred in law by embarking on a merit assessment of the application and its impacts in order to establish whether compliance with the clauses 33(2) and 33(4) of the LEP was unreasonable or unnecessary and thereby took irrelevant matters into consideration which ultimately affected the decision. 5. The Commissioner erred in law in failing to take into proper consideration the applicable development control plan by force of s79C(1) (a)(iii) of the Environmental Planning and Assessment Act 1979, being the Development Control Plan - Multi Unit Housing, section 3.2 Height and section 4.3 View Sharing".

Relevant principles 20The requirements for upholding an objection under SEPP 1 are stated in cl 7, the provisions of which I have earlier recited. The manner in which the requirements of that clause are to be applied and the scope for determining the ambit of discretion it affords are well established. In Wehbe v Pittwater Council [2007] NSWLEC 827; (2007) 156 LGERA 446, Preston CJ summarised the authorities addressing this topic. His Honour identified (at [38] - [40]) the essential elements as being - (i) satisfaction that "the objection is well founded"; (ii) formation of the opinion that granting consent is consistent with the aims of the policy as set out in cl 3; and (iii) satisfaction that a consideration of matters in cl 8(a) and (b) of the Policy justifies the upholding of the objection. 21While each of these elements are referred to by the appellant in seeking to sustain its grounds of appeal, particular focus is placed upon element (ii). This, in turn, required focus upon cl 3 of SEPP 1, requiring the formation of an opinion that strict compliance with the standards identified in cl 33 were, in the circumstances identified, unreasonable or unnecessary, or, alternatively, that compliance would tend to hinder the objects specified in s 5(a)(i) and (ii) of the EPA Act. The objects there expressed are: "(a) to encourage: (i) the proper management, development and conservation of natural and artificial resources, including agricultural land, natural areas, forests, minerals, water, cities, towns and villages for the purpose of promoting the social and economic welfare of the community and a better environment, (ii)the promotion and co-ordination of the orderly and economic use and development of land". 22As is now well recognised, one of the means by which an applicant for development consent can seek to establish that compliance with a particular development standard or standards is or are unreasonable or unnecessary is to demonstrate that the purpose of the development standard being addressed is satisfied in the circumstances being considered, notwithstanding non-compliance with the terms of that standard as it is expressed in the controlling planning instrument. It is this means of invoking the provisions of SEPP 1 that was the subject of the respondents' written objection and the means adopted by the Commissioner for determining that the objection was well founded. 23It must be recognised that the decision as to whether the purpose of a particular development standard is met requires the formation of an opinion based upon a factual evaluation. The need to consider "the particular case" (cl 3) requires as much. That observation is important for two reasons. 24First, it must be remembered that the appeal pursuant to s 56A(1) of the Court Act is limited to a decision on a question of law. Findings of fact, even if perverse, are not open to correction on appeal brought under that section ( Azzopardi v Tasman UEB Industries Limited (1985) 4 NSWLR 139 at 155 - 156). 25Second, it is not appropriate to consider the reasons of a Commissioner with a "fine toothcomb" in an endeavour to discover error ( Brimbella Pty Ltd v Mosman Municipal Council (1985) 79 LGERA 367 at 368; Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 271; Botany Bay City Council v Premier Customs Services Pty Ltd [2009] NSWCA 226; (2009) 172 LGERA 338 at [31]). Those principles are particularly apposite where, as here, the Commissioner had delivered an ex tempore judgment in an endeavour to bring to an end controversy over a development application that had been ongoing for some time. This is not to articulate a double standard in respect of judgments but rather to identify the need to proceed with additional caution when seeking to examine closely reasons for judgment that are delivered ex tempore. Provided the principle contested issues are addressed ( Segal v Waverley Council [2005] NSWCA 310; (2005) 64 NSWLR 177 at [68]), elaborate reasons are not required ( Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247).

The Commissioner's judgment 26In light of the submissions made by the appellant in support of its grounds of appeal, it is appropriate to note the general structure of the Commissioner's judgment. I do so because it better informs an understanding of the appellant's arguments. It also allows those arguments to be addressed in a more succinct manner. 27After describing the site and the locality, the Commissioner referred to the history of the development application both before the Council and before the Court. She identified the fact that amendments had been made as a result of this process and also identified the plans that were the subject of the application that she was determining (at [7]). She then identified both the LEP and DCP as representing "the relevant planning framework" against which the proposal was required to be assessed [8]. 28As a result of the history of proceedings that had been described, it was stated that the contentions or issues between the parties "were somewhat narrowed". They were identified as arising from an amended statement of issues and summarised by the Commissioner in the following terms at [9]: " the proposal's building height and wall height exceeds the maximum prescribed under cll 33(2) and 33(4) of the Randwick Local Environmental Plan 1988. (This is a height control of 12 metres in cl 33(2) for the maximum height of the building, and the subclause 4 of cl 33, has a 10 metre wall height restriction) the proposal does not satisfy the State Environmental Planning Policy No 1 - development standards. Council contends the proposal is inconsistent with the objective of the maximum building height the [sic] and external wall height, and that the SEPP 1 objection for the variations are not well founded. the proposal has an appropriate bulk and scale, having regard to the character of the area. However, the focus is on the height, that is, the wall height and the absolute height of the development and the SEPP 1 objection in terms of the impacts of the proposal. the proposal will result in unreasonable loss of views from neighbouring properties, particularly at No. 94 Alison road. (units 2A and 2E.)" 29The Commissioner then returned to a description of the site and said (at [14]): "It is important to note that the exceedence in both the 10 metre and the 12 metre height standards is shown on the architectural drawings, and it is important also to note that the benching of the site or the change in topography over the site from the front to the rear, means that the variations or the exceedence in the height limits varies over the site, and this becomes important in an assessment of the application." 30The relevant provisions of the LEP were identified, including the zoning of the site, and the provisions of subclause (2) and subclause (4) of cl 33 of the LEP were quoted (at [20]). At [22] the Commissioner said: "The threshold question or the precondition that the Court must consider is the objection under State Environmental Planning Policy No 1 to vary the height standards." Reference was then made to the decision of the Chief Judge in Wehbe, noting that regard was to be had to the objectives or underlying purpose of the standards to be considered (at [23]). 31The Commissioner repeated that consideration of the objection under SEPP 1 was a precondition to the consideration of merits. She said (at [24]): "During the proceedings, it seemed that there was a blurring of the merit assessment with the SEPP 1 threshold question, so while there was considerable focus on the merits of the application, I must go back to what the SEPP 1 objection requires. That is, to focus my attention on the object of the standard itself, and in this regard, I asked questions of the experts to state what the underlying objective(s) are, given there are no stated objectives. A summary of their comments became exhibit O in the proceedings." 32A summary of the evidence given by each of the three experts called by the parties, identifying their respective opinions as to the purpose of the relevant height standards contained in cl 33 of the LEP was quoted at [25] - [27] of the judgment. 33Two matters emerge from that summary of the evidence. First, each of the experts, including the expert called and relied upon by the appellant, identified the purpose of each of the standards by combining their effect, recognising that they were a means of achieving a height control. Indeed, this combination of controls extended beyond those found in cl 33 when each of the experts expressed their opinion as to the purpose of the standard. 34Having accepted the purpose of the standards identified by the appellants' expert, the Commissioner then considered the evidence as to whether the purpose of those standards, as articulated by him, was satisfied. The evidence given focused upon the view loss from two nominated apartments within the residential flat building located at 94 Alison Road. That was the focus of all three experts in addressing the height standards in cl 33. The understanding of that debate was informed by an inspection carried out by the Commissioner of each of the two apartments about which concern for view loss was expressed. Height poles had been erected to assist the assessment and photo montages had been prepared by experts retained on each side, seeking to demonstrate the difference in view impact between a building erected in conformity with the relevant height requirements of cl 33 and the building at the height proposed in the development application [35]. 35The Commissioner identified the disagreements between the experts as to the extent to which city skyline views from the two apartments in question would be affected, including the view loss occasioned by a building meeting the requirements of cl 33. Ultimately, she determined that variation of the standards contained in that clause were justified "in the circumstances of this case" [44]. Reasons are then stated for this decision, it being concluded at [46] that the objection under SEPP 1 was well founded, to the aims and objectives of the policy having been identified at [45]. 36The Commissioner finally proceeded to consider other issues raised in the proceedings that did not turn upon application of SEPP 1. In so doing, she recognised once again that there was an "overlap" between the SEPP 1 assessment and the overall merit assessment called up by s 79C of the EPA Act [54]. 37The manner in which the Commissioner structured her judgment demonstrated that she understood the necessity to keep separate the consideration and determination of objections under SEPP 1 from the assessment of those matters directed to the general merit of the respondents' development proposal. In recognising that separation, the acknowledgment of overlap between the two streams of consideration necessary to determine the application before her was realistic. Given that the assessment of an objection under SEPP 1 requires the making of an evaluative judgment, founded upon evidence adduced, such an acknowledgment does not, in principle, demonstrate legal error.

Appeal ground 1: objection not well founded 38This ground of appeal would appear to be framed infelicitously in the appellant's summons, sufficient to identify error in the decision of the Commissioner on a question of law. As the respondents submitted, a determination that the SEPP 1 objection was well founded does not, itself, constitute a question of law. Inferentially, it identifies a complaint as to the result of consideration of the respondents' SEPP 1 objection. 39There is no issue but that the Commissioner had before her a written objection made pursuant to cl 6 of SEPP 1. Further, it is not in issue that the Commissioner was entitled to proceed to determine that objection by considering the purpose of the development standard and assessing whether that purpose was satisfied in the circumstances identified in the evidence. That approach to determination does not bespeak legal error. 40The appellant's submission demonstrates that the error or errors upon which it relies are those directed to the process of reasoning by which the Commissioner reached the conclusion that the objection was well founded. There are four errors so identified and although they ought to have been stated as grounds of appeal, the respondents were content to address them so as to enable the hearing of the appeal to be concluded without debate about amendment or adjournment.

Satisfaction of purpose not addressed 41The Commissioner identified the purpose of the standards being considered by reference to the evidence of the appellant's expert, Mr Harding. He is recorded at [25] as framing the purpose in the following way: "When combined they seek to constrain built form to ensure a multitude of things including overshadowing, privacy, view issues and streetscape. Within a suite of controls, they provide a maximum building footprint." 42The rationality of suggesting that height control could have an impact on "maximum building footprint" was not explained. It may have been a misstatement on the part of Mr Harding, intending to refer to the maximum building envelope. So much may be inferred from later evidence attributed to him by the Commissioner when he refers to wall height becoming the leading edge of the building (at [28]). 43Having identified the purpose of the standard as stated by all experts, the Commissioner said at [30]: "It is important that one addresses what the underlying objectives/purposes of the standard are and if I take Mr Harding's position when combined they seek to constrain the built form to ensure a multitude of things, which is privacy, view loss, streetscape ... I accept Mr Harding's purpose of the standard and this clearly includes the bulk of the building and its relationship with adjoining development." There then follows a discussion of the evidence given by Mr Harding as well as the respondents' experts as to the extent to which the loss of view from a window in each of two units in the adjoining residential flat building would be affected by the building of the height proposed. Ultimately, the conclusion expressed at [44] is that the SEPP 1 objection is well founded. 44In expressing that conclusion, the Commissioner is using the language of cl 7 of SEPP 1. Her conclusion is immediately preceded by recording the agreement among the experts who gave evidence before her that view loss was "one measure of impact on amenity of adjoining properties, and part of the underlying objectives" (at [44]). The other part of the underlying objectives or purpose was overshadowing and bulk. Her expressed determination in [44] was that the variations of the two height controls in cl 33 of the LEP were, in the context of the objectives identified by the experts, justified in the circumstances of the case. That conclusion also embraces the language of SEPP 1. 45A fair reading of the judgment indicates that the conclusion expressed in [44] is the culmination of the assessment of the evidence considered and discussed by the Commissioner between [31] and [43]. Those passages of the judgment not only address the clear focus of the evidence, namely the impact on views from two apartments, but the difference between the impact of a building conforming to the height standards with the building as proposed. Such a comparison was appropriate to the manner in which the Commissioner was undertaking the task of determining whether compliance with the standard was unreasonable or unnecessary. Moreover, the manner in which the evidence was given and addressed, necessarily involved a consideration of the "bulk" of the building as it impinged upon consideration of the two height controls. That consideration of "bulk" in the context necessary to be considered for the purpose of determining the objection was referable to the proposed building envelope. 46It should also be noted that in the section of the judgment to which I have referred, the Commissioner addressed the competing opinions among experts as to the extent to which the size and height of the building, including its "leading edge" would impact upon adjoining properties by reason of the proposed height. The circumstance that her decision in respect of the objection was reached by implicitly favouring the evidence led on behalf of the respondents as to the fulfilment of the purpose of the control is no basis upon which to found error on a question of law. 47A fair reading of the Commissioner's reasons for the decision does indicate that the elements of the purpose of the height standards found in cl 33 were addressed by reference to the evidence led before her, particularly involving a consideration of the size of the proposed building when seen in the context of the development standard. This basis of challenge to the Commissioner's decision therefore fails.

Quantum of view loss: its relevance to the SEPP 1 objection 48The appellant's argument on this part of its challenge is, in essence, that the Commissioner posed for herself an incorrect test when assessing the evidence directed to view loss. The challenge made is that the Commissioner sought to address satisfaction of the purpose of the standard by assessing the quality of the view that would be retained from the two apartments in question of the building proposed for the site instead of its compliance with the height standards. 49The appellant recognises that the Commissioner was required to have an understanding of the impact that the development, as proposed, would have upon the two apartments in question. The complaint is that the quality of the retained view in a compliant building did not "justify the allowance or the departure from the standards" (Tcpt 9:32). 50It must be remembered that the Commissioner was addressing view loss by reason of the manner in which the case was presented to her, that view loss being the principal evidentiary issue debated in evidence. Importantly, it was the evidence seen by the experts as critical to the determination as to whether the purpose of the height objective was satisfied. Clearly, in making her evaluative judgment, it was necessary for the Commissioner to understand what, if any, view loss was involved by comparing a complying development with that which was proposed and, to the extent that some difference was asserted, its impact. 51The Commissioner was confronted with the evidence from the respondents' experts indicating that there would be no impact upon views from the apartments in question when the relevant comparison was made. Mr Harding, asserted that there would be some difference. It seems to me that at [43] the Commissioner was assuming, without deciding, the correctness of Mr Harding's factual assessment. It was in that context that she made the observation of the quality of the retained view assuming a compliant building. As I read her conclusion in [44], the Commissioner's decision to uphold the objection is founded upon the fact that either there is no impact on views or that, to the extent that there may be, the impact is so marginal that it does not gainsay satisfaction of the purpose of the standards. 52So understood, this basis of challenge is not sustained.

Conflated consideration of development standards 53The submission of the appellant in this regard is really in two parts. The first is that the Commissioner gave precedence to the standard identified in cl 33(2), being the overall height limitation of 12 metres, over the maximum wall height limitation imposed by cl 33(4) of 10 metres. Reliance is placed upon a sentence in [44] of the judgment where the Commissioner said: "I have determined that the variations to the 10 metre and 12 metre controls in terms of the underlying objectives articulated by both parties experts, are justified in the circumstances of this case." Reliance is also placed upon a statement contained in [48] in which the Commissioner commenced the paragraph by reference to the 12 metre control found in cl 33(2). 54As I have earlier indicated, each of the two development standards in question are contained in the clause of the LEP that is headed "Building heights". While the requirements of each need to be recognised, so also must the fact that, together, they seek to impose controls on buildings in the residential 2C zone. As such, it is not inappropriate that, in addressing each of the standards, consideration should be given to the overall height of the building in question against the overall form and height of a building that could be erected conformably with the two standards. 55Moreover, a fair reading of the Commissioner's discussion of the evidence reveals that she was giving consideration to each of the two height controls. The very sentence in [44] relied upon by the appellant identifies the two means of controlling height by reference to cl 33. Equally, one finds reference to the separate height controls in the summary of the purpose of the standard attributed to each of the experts ([25] - [27]), in [32] when addressing Mr Harding's evidence, and in [47] where the Commissioner identified her assessment of the 10 metre wall standard and 12 metre roof height standard by reference to the photo montages addressed by the experts who had given evidence before her. Both controls needed to be and were considered in addressing the purpose of a height standard. No legal error is demonstrated in the manner in which the Commissioner undertook this task. 56The second aspect of the appellant's argument in this regard indicates error on the part of the Commissioner in grouping the two standards together for the purpose of consideration. However, as I have sought to demonstrate in the preceding paragraphs, the Commissioner did give due recognition to the separate controls and the different purposes to be served by them in addressing the overall control on height. 57Having regard both to the course of evidence and to provisions of the LEP, it is hardly surprising that the Commissioner addressed the two height standards in the manner of which complaint is now made. I have earlier recited the purpose of these standards as identified in the evidence of the experts, including Mr Harding on behalf of the appellant. As I have stated, his articulation of purpose was one combining consideration of the two development standards. I do not understand the appellant to have disavowed this manner of stating the purpose in final submissions before the Commissioner. There is nothing illogical in each of them having a common purpose albeit achieved by different controls. It was the satisfaction of that purpose that, by directing attention to each, the Commissioner was required to address. It seems to me, that is what she did. 58When recording the relevant provisions of cl 33 earlier in this judgment, I have recorded the end note of that paragraph which commences with the word "purpose". That purpose is clearly directed to the provisions of cl 33 as a whole. In spite of its apparent parenthetical inclusion in the clause, there is no reason to treat it as if it was not part of the text to be considered. Unlike many other statutory or regulatory instruments, there was no provision of the LEP that excluded notes or other parenthetical inclusions as being part of the instrument. The amending instrument, not relevant to the determination of the present application, inserts a provision directed to notes of that kind. 59The purpose stated at the end of cl 33 was clearly relevant to be considered by the Commissioner when considering the objection under SEPP 1. She did so at [29], although not to the exclusion of the text of cl 33(2) and (4) and the evidence before her, when formulating the underlying purpose that she was required to consider. 60I find no legal error in the manner in which the Commissioner identified each of the relevant standards and addressed the fulfilment of purpose by addressing the topic of height.

SEPP 1 determination by "merit" assessment 61In substance, this aspect of the challenge identified in appeal ground 1 is the same as that identified in appeal ground 4. I will consider this basis of challenge when addressing ground 4 of the appellant's grounds of appeal.

Appeal ground 2: consistency with the aims of SEPP 1 62The appellant submits that the Commissioner failed to form the opinion that the granting of development consent to the respondents' development application was consistent with the aims of SEPP 1. The necessity to form such opinion is found in cl 7 of the Policy which, in turn, identified the aims as being those contained in cl 3. 63The terms of cl 3 of SEPP 1 have earlier been referred to in this judgment. The express aim or objective is to provide flexibility in the application of planning controls that take the form of development standards. The manner in which the object of flexibility is to be achieved, as expressed in cl 3, is by identification of circumstances in which either "strict compliance" with the standard would be "unreasonable or unnecessary" or where strict compliance would tend to hinder the attainment of the objects specified in the nominated paragraphs of s 5 of the EPA Act. It is in the context of these provisions that the appellant's submission must be assessed. 64When considering the SEPP 1 objection, the Commissioner said this (at [45]): "SEPP 1 also requires the Court to have regard to the aims and objectives of the Policy which is to provide for flexibility in circumstances where strict compliance is unreasonable or unnecessary. One must also have regard to any regional or state issues, and I am satisfied that these are not called up in the variation to the standard in the circumstances of this case." Although cl 3 is not, in terms, identified, the first sentence of this paragraph uses the language of both cl 7 and cl 3. There are no other provisions or "requirements" of the Policy to which the Commissioner can there be referring. 65As I understand the appellant's submission, it would seem to accept that the terms of [45] should be taken to include a reference to cl 3 but not the formation of the opinion required by cl 7 by reference to the former clause. Read in the context of the judgment as a whole, I do not accept that the appellant's submission is correct. 66I have earlier set out the scheme of the Commissioner's judgment. In discussion by the Commissioner of both principles and evidence in the paragraphs immediately before the statement made in [45], the Commissioner was focused upon the purpose of the relevant development standard with a view to determining whether that purpose was satisfied, such that a conclusion could be reached that application of the standards was in the circumstances unreasonable or unnecessary. At [48] the conclusion is expressed in those terms. 67Moreover, it must be remembered that cl 7 of SEPP 1 does not, in its own terms, require the formation of an opinion that application of the development standard is, in the circumstances, unreasonable or unnecessary. The second of the two requirements contained in clause 7 is that the opinion be formed that the application is consistent with the aims of the Policy set out in cl 3. Thus, the expression of opinion by the Commissioner that application of the standard was unreasonable or unnecessary is a product of her consideration of the aims and objectives identified in cl 3. 68So understood, the first sentence of [45] of the judgment correctly identifies a synthesis of the considerations required by cll 7 and 3 of SEPP 1 in order to determine an objection. The decision reached by the Commissioner requires no tortured reading of her reasons for judgment to conclude that the formation of the opinion required by cl 7, referable to cl 3, was formed by the Commissioner. 69If further support for this conclusion is required, it lies in the observation of Preston CJ in Wehbe where his Honour observed that the first two requirements to be addressed before an objection can be upheld, namely a determination that the objection is well founded and the granting of consent is consistent with the aims of the policy as set out in cl 3, are cumulative (at [39]). This observation does not gainsay a degree of overlap between the two. Clause 6 of SEPP 1 requires that the written objection made by an applicant be directed to the contention that compliance with the standard in question "is unreasonable or unnecessary in the circumstances of the case". Similarly, the objective expressed in cl 3 is directed to strict compliance with a standard in circumstances where it would be "unreasonable or unnecessary" to require compliance. The Commissioner was addressing that very topic at [46], namely the articulation of the objection by reference to the requisite formula in the present respondents' written objection (Exhibit L), with the conclusion expressed in respect of the consideration of that objection in [48]. 70For these reasons, the appellant's second ground of appeal is not sustained.

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.

Appeal ground 4: merit consideration 87The appellant acknowledges the statements by the Commissioner in her judgment at [22] and [24] that determination of the objection under SEPP 1 to compliance with the height standards in cl 33 was a "threshold question" or "precondition" to general merit assessment. However, it submits that notwithstanding these statements, the reasons for judgment of the Commissioner demonstrated that she undertook a merit assessment, particularly on view impact, as reflected in her reference to the statement of planning principles articulated by the former Senior Commissioner of this Court in Tenacity Consulting v Warringah Council [2004] NSWLEC 140; (2004) 134 LGERA 23. 88While it may be accepted that the determination of an objection made under SEPP 1 is to be made before determining that consent to a particular development application should be granted, the reasoning by which these "separate" determinations are to be made will in many cases, as was acknowledged by the Commissioner in the present case, overlap. The combined requirement of cll 7 and 3 of SEPP 1 that the determination be made whether compliance with the standard is unreasonable or unnecessary "in the particular case", necessarily involves circumstances which almost inevitably will involve an assessment of difference, including in some cases impact, between a development that conformed to the standard under consideration and that development which is proposed. Having regard to the formulation of purpose in the present case, provided focus is kept upon those "merit" considerations that bear upon that purpose of the standard and the satisfaction of it "in the circumstances", there can be no legitimate complaint about consideration of "merit" issues. Such a proposition is supported by authority of long standing. In North Sydney Municipal Council v Parlby ( Land and Environment Court, 13 November 1986, unreported ) Stein J said (at 6): "In my opinion, bearing in mind the underlying purpose of the object of each of the subject development standards, the Court may take into account, as a circumstance of the case, such considerations under [s 79C] as are relevant to that purpose or object ... . It may not be an unusual situation that some merit matters will be relevant to the consideration of a SEPP 1 objection. Whether any do arise as a circumstance of the case will depend on the object or purpose of the standard." 89I have earlier set out the debate among experts as to the purpose of the height standard and that purpose which was addressed by the Commissioner. When she accepted the purpose of the appellant's witness as being directed to "privacy, view loss, streetscape" and including "the bulk of the building and its relationship with adjoining development" (at [30]), inevitably considerations of "merit issues" directed to those matters call for consideration. 90Reliance upon reference to the decision in Tenacity Consulting v Warringah Council in support of this ground would appear to be misplaced. Reference to that case is a quotation from the evidence given by Mr Harding, the appellant's expert, when he was addressing compliance with the development standard (at [39]). It was in the context of that evidence and in seeking to address it that the Commissioner referred to the "quality" of views and "a more skilful design" to address the perceived problem. These notions were only introduced by Mr Harding and it was to those that she was responding. 91As I have indicated when outlining the structure of the Commissioner's judgment, almost the entirety of it was directed to addressing the purpose of the height standards and the debate among the experts as to the manner in which the application was considered to satisfy, or not satisfy, as the case may be, the purpose or objective of those standards. Nonetheless, the Commissioner did turn to consider in the final paragraphs of her judgment those "merit" matters that were not directly related to determination of the SEPP 1 objection. 92In concluding as she did that the objection should be sustained, I do not accept that the Commissioner's reasons demonstrated a failure to focus upon the standard, its purpose and satisfaction of that purpose as distinct from the overall merits of the application. Indeed the issues that remained for determination by the Commissioner, following the pre-hearing amendments that had been made, would seem essentially to have focused upon compliance with the height provisions of cl 33 and the objection to compliance under SEPP 1. Unsurprisingly, the substantive part of her judgment is addressed to that issue. 93The fourth ground of appeal is not sustained.

Appeal ground 5: consideration of the DCP 94The appellant submits that the Commissioner failed properly to consider those two parts of the DCP that address height and view sharing. It particularly emphasises the absence of consideration of view sharing by reference to the DCP and seeks to illustrate that submission by directing attention to the Commissioner's reference to the planning principles stated in Tenacity Consulting v Warringah Council . I have already addressed the circumstances in which reference to that case was made. The reference founds no support for the present submission. 95Reliance was also placed upon the decision of the Court of Appeal in Botany Bay City Council v Premier Customs Services Pty Ltd . In that case, a decision of a commissioner of this Court was held to demonstrate error of law because, in applying the provisions of a development control plan, the commissioner had "put aside the standard set by the DCP and applied his own standard of what is reasonable" (at [33]). There, a numerical requirement was imposed for the side setback of a building, its dimension depending upon the adjoining land use as being either residential or non-residential. What was reasonable in the context of the case under consideration had been determined by the control plan being considered and while that requirement was not determinative of the result that could be reached upon determination of a development appeal, focus upon that numerical standard needed to be had and justification for departure made manifest. It was not open to the commissioner to decide that the policy or purpose established by the DCP control was inappropriate for reasons of general policy (per Macfarlan JA at [26] and [33]). 96The appellant submits that the reasoning in Botany Bay City Council v Premier Customs Services is analogous to the present case. However, while the principles there articulated are not challenged by the respondents, they contend that they have no relevant application in the present case. 97I agree. The fixing of a numerical standard in the context of the provisions identified in the development control plan considered in that case differ markedly from those under consideration in the present case. The relevant provisions of the DCP presently under consideration neither fix a numerical standard nor provide a context in which the very juxtaposition of development is considered so as to determine the result that should follow, subject to a reasoned variation from that which the control plan requires. In the present case each of the relevant controls requires an evaluative judgment to be made by reference to objectives which, themselves, are expressed in non-specific language calling for evaluative judgments to be made. 98Given the terms of the DCP, it could not be said of the Commissioner that she applied her own standards or otherwise manifested disagreement with the relevant provision of the DCP. 99It is clear that the Commissioner was conscious of both the height provisions (Ch 3.2) and view sharing provisions (Ch 4.3) of the DCP. The control plan was referred to by the Commissioner at both [8] and [21]. Further, it will be apparent from my discussion of the other grounds of appeal that the focus of the judgment is upon the height of the proposed building and the impact that it had upon views. 100In order to consider whether this ground of appeal is made out, it is necessary to consider the substance of the judgment rather than search for express reference to cl 3.2 or cl 4.3 of the DCP. After all, the seminal decision in this area of discourse, namely that of Spigelman CJ in Zhang v Canterbury City Council [2001] NSWCA 167; (2001) 51 NSWLR 589 concerned a decision of a commissioner that was replete with references to the particular clause of a development control plan there being considered. The fact that reference was made to it did not establish that the requisite consideration to the provision in question had been a "fundamental element" in or a "focal point" of the decision made. Thus, substance must be considered over form. 101The objectives expressed for the height control in Ch 3.2 are:

• Use maximum height limits to assist in responding to the desired future character of the local context.
• Minimise the impact of development on adjoining and nearby land.
• Control the bulk and scale of development. My earlier discussion of the judgment would demonstrate that these objectives were very much at the core of the Commissioner's consideration. So also were the matters to which attention is drawn in the narrative of cl 3.2.2 that refers to the control of "bulk and scale", consideration of "the character of the locality" and considerations of overshadowing, potential loss of privacy and views. 102The performance controls of the DCP in relation to height are those expressed in cl 3.3.4. They are: "P1 Heights of walls, their location and orientation do not cause substantiated [sic] adverse impacts on the streetscape or adjoining properties, particularly in relation to privacy, solar access and building bulk. P2 Variations in massing and height create visual interest, distribute the bulk of the building and minimise amenity impacts on adjoining properties and the streetscape." 103There can be no doubt that each of these performance requirements was both reflected in the opinion evidence advanced by the experts and identified by the Commissioner in her judgment. Indeed, from my earlier recitation of the purpose of the height standard in the LEP, as articulated by the appellant's consultant, it is apparent that the purpose has, at least in part, been informed by the terms of the DCP. 104The only other provision found in Ch 3.2 of the DCP is cl 3.2.3. It does no more than identify the fact that cl 33 of the LEP seeks to control height. It was cl 33 that was the focus of consideration when determining the objection under SEPP 1. 105This analysis of the judgment satisfactorily demonstrates, in my opinion, that Ch 3.2 of the DCP was, in substance, considered by the Commissioner when making her determination. 106Chapter 4.3 of the DCP is headed "View sharing". The expressed objective in cl 4.3.1 is to "minimise" obstruction of view by new development from adjoining buildings. That objective was, in substance, identified by the Commissioner in her consideration of the view impact. An example of that consideration is found in, although not confined to, [43]. 107The explanation for the view sharing provision of the DCP is found in cl 4.3.2. It implies a balance ("sharing") between the preservation of existing views while allowing development that meets other controls and guidelines. That balance is reflected within the judgment, particularly at [51] as was the concept of view sharing at [37], [38], [40], [41] and [48]. 108Clause 4.3.3 of the DCP identifies those provisions of the LEP relevant to view sharing. In terms, the clause identifies the objectives of the 2C zone expressed in cl 12 of the LEP. Those objectives, which include the objective of enabling residential development "in a variety of medium density housing forms" have earlier been referred to in this judgment and were identified by the Commissioner both at [18] and at [50]. 109The final provision of the DCP directed to view sharing is cl 4.3.4. It is the clause that identifies the performance requirements for view sharing. Requirement P1 concerns design taking into account "existing topography, vegetation and surrounding development ... as a basis for assessing effect on view". Performance requirement P2 refers to development minimising "effects on views" and indicates demonstration of steps taken to mitigate view loss. All of these requirements, overlapping as they are, were addressed by the Commissioner, as is apparent from [41] and [48] of her judgment. 110In summary, the Commissioner was clearly aware of the requirements of the DCP. She addressed them in substance. In those circumstances, this ground of appeal cannot be sustained.

Conclusion 111None of the five grounds upon which the appellant has sought to challenge the decision of the Commissioner as manifesting legal error are sustained. The endeavours to find fault and therefore a ground or grounds of challenge have involved an impermissible fine toothcomb approach to the judgment. An appropriate consideration of it, including the fact that it was a judgment delivered ex tempore, does not demonstrate the legal errors of which complaint is made. To the extent to which there may be disagreement with the result or the formation of opinions expressed by the Commissioner, they are not matters that attract appellate intervention under the provisions of s 56A(1) of the Court Act.

Orders 112For the reasons that I have expressed, the orders that I make are:

1. Appeal dismissed.
2. Appellant to pay the respondents' costs of the appeal.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 September 2011