RebelMH Neutral Bay Pty Limited v North Sydney Council

What happened

RebelMH Neutral Bay Pty Limited owned four allotments at 14, 16, 16A and 16B Thrupp Street, Neutral Bay. It lodged a development application to consolidate the lots, demolish existing buildings and erect a five-storey residential flat building with basement car parking. The site was zoned R4 High Density Residential under North Sydney Local Environmental Plan 2013 (NSLEP). Clause 4.3(2) of NSLEP, read with the Height of Buildings Map, imposed a 12-metre maximum height. The proposed building reached 15 metres, producing exceedances ranging from 0.4 metres (3%) to 3 metres (25%) because of the site's north-to-south slope.

North Sydney Council did not determine the application within time, triggering a deemed refusal. Rebel appealed to the Land and Environment Court under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) in Class 1 jurisdiction. Before and during the hearing it amended its plans and submitted a revised written request under cl 4.6 of NSLEP seeking to justify the contravention. Clause 4.6(3) required the request to demonstrate that compliance with the height standard was unreasonable or unnecessary and that sufficient environmental planning grounds existed to justify the breach. Clause 4.6(4)(a) prohibited grant of consent unless the Court was satisfied that the request adequately addressed those matters and that the development was in the public interest because it was consistent with the objectives of the height standard and the zone objectives.

Moore J dismissed the appeal: RebelMH Neutral Bay Pty Ltd v North Sydney Council [2018] NSWLEC 191. His Honour refused the cl 4.6 request because it did not adequately address cl 4.6(3)(a) or (b) and because the proposal was inconsistent with objectives (b) and (f) of cl 4.3(1). Objective (b) was "to promote the retention and, if appropriate, sharing of existing views". Objective (f) was "to encourage an appropriate scale and density of development that is in accordance with, and promotes the character of, an area". The primary judge found that a "pleasant verdant outlook" from a neighbouring apartment (the Wallis apartment) was a view that would be significantly reduced, and that the visible mansard-roofed fifth storey would not promote streetscape character.

Rebel appealed to the Court of Appeal under s 57 of the Land and Environment Court Act 1979 on questions of law. The five grounds attacked the construction of cl 4.6, the interpretation and application of objectives (b) and (f), and an alleged denial of procedural fairness by refusal to afford an "amber light" opportunity to amend the application by deleting the top floor. Gleeson JA and Payne JA agreed with Preston CJ of LEC, who delivered the principal judgment. The Court held that none of the grounds revealed error of law. The appeal was dismissed with costs on 6 June 2019: RebelMH Neutral Bay Pty Limited v North Sydney Council [2019] NSWCA 130.

Why the court decided this way

Preston CJ of LEC began by setting out the statutory hierarchy. Development consent was required under s 4.2(1) of the EPA Act. The height standard in cl 4.3 was a development standard. Clause 4.6 provided a conditional exception. The power in cl 4.6(2) to grant consent despite contravention could be exercised only after the consent authority had considered a written request demonstrating the two matters in cl 4.6(3) and had reached the two states of satisfaction in cl 4.6(4)(a).

On grounds 1 and 2 the Court rejected Rebel's argument that "adequately addressed" in cl 4.6(4)(a)(i) meant only that the request contained an argument on each topic. Preston CJ held that the request must actually demonstrate the outcomes required by cl 4.6(3): that compliance is unreasonable or unnecessary and that sufficient environmental planning grounds exist. He adopted the reasoning of Basten JA in Al Maha Pty Ltd v Huajun Investments Pty Ltd (2018) 233 LGERA 170; [2018] NSWCA 245 at [21]-[24] and his own earlier analysis in Baron Corporation Pty Limited v Council of the City of Sydney [2019] NSWLEC 61 at [75]-[80]. The primary judge had correctly evaluated the request's floor-space redistribution argument. That argument asserted that floor space lost to the height breach would have to be relocated elsewhere, reducing the setback to a neighbouring heritage item. Moore J found this rested on an "impermissible assertion of entitlement" to the maximum floor space permitted by all controls ([53]). Because the request dealt with the first and third Wehbe ways together, rejection of the underlying premise disposed of both. The evaluative judgment that the request did not demonstrate the cl 4.6(3) matters was open and disclosed no error of law.

On ground 3 the Court held that "views" in objective (b) was not confined to the significant views listed in the Neutral Neighbourhood Character Statement in North Sydney Development Control Plan 2013. The primary judge's finding that the vegetated outlook from the Wallis apartment was a "pleasant verdant outlook" and a view was a finding of fact. Whether an outlook falls within the statutory description is not a question of law unless the facts found are necessarily outside the description: Hope v Bathurst City Council (1980) 144 CLR 1 at 10, applied at [73]. Even if the finding was perverse, it would not be an error of law: Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 155-156. The judge had viewed the site, considered photographs with superimposed wire frames, and addressed Rebel's submissions. He was not limited to the cl 4.6 request but drew on all evidence. The finding that the non-compliant proposal did not promote retention or sharing of that view was therefore unassailable on a limited appeal.

Ground 4 concerned objective (f). The primary judge expressly noted that his analysis of this objective was moot but nevertheless addressed one aspect: the immediate streetscape shown in Annexure A. Rebel argued he had failed to identify the relevant "area" by reference to the larger Neutral Bay Planning Area or Neutral Neighbourhood in the DCP. Preston CJ held that the relevant area is itself a question of fact. The primary judge had recognised that the area might be wider than the immediate streetscape but had confined his analysis to the Thrupp Street context because that was how the parties had joined issue in Contention 5 and in the expert evidence. The finding that the visible fifth storey did not "promote" character was factual and open. The absence of express reference to every piece of evidence in that section of the reasons did not mean it had been ignored.

Ground 5 alleged denial of procedural fairness. The primary judge had raised the potential for an amber light approach during the site inspection and on the fifth day of hearing, limiting it to deletion of the mansard roof and inviting submissions on whether he should adopt it. Rebel made no submissions on the point. The Court held that the amber light approach has no statutory basis in the EPA Act, the Land and Environment Court Act 1979 or the Rules: Ku-ring-gai Council v Bunnings Properties Pty Ltd [2019] NSWCA 28 at [20], [200]-[209] applied at [107]. No legitimate expectation arose that a judge would adopt a procedure of "questionable legality". The statements made during the hearing could only have created an expectation that the parties would address the issue during the hearing, which they were invited to do. Rebel's choice not to avail itself of that opportunity meant there was no procedural unfairness.

Before and after state of the law

Before this decision, cl 4.6 had been construed in a series of first-instance and appellate decisions. Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 (applied by Moore J) identified common ways of showing that compliance is unreasonable or unnecessary. Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118 and Randwick City Council v Micaul Holdings Pty Ltd (2016) 225 LGERA 94; [2016] NSWLEC 7 had emphasised that the consent authority forms an opinion of satisfaction that the request "adequately addresses" the cl 4.6(3) matters without itself forming the opinion required by cl 4.6(3). Al Maha left open whether "adequately addressed" required actual demonstration of the matters. Baron Corporation had adopted the stricter construction.

This Court resolved the ambiguity. It held that cl 4.6(3) and (4)(a)(i) are not satisfied by a request that merely "seeks to justify" or covers the topics. The request must demonstrate the required outcomes. The primary judge was therefore entitled, and required, to test the request's factual and legal premises, including the assertion of entitlement to maximum floor space. The decision also clarified that "views" in objective (b) is not limited by DCP character statements and that characterisation of an outlook as a view is factual. The treatment of objective (f) confirmed that the relevant "area" is not dictated by DCP boundaries but is a factual question that may be answered by the way the parties conduct the case.

On procedural fairness, the decision built on the recent criticism in Ku-ring-gai Council v Bunnings. It confirmed that the practice of some Commissioners does not create a legal expectation. After this judgment, consent authorities and the Court must apply a more rigorous evidentiary and legal analysis to cl 4.6 requests, and litigants cannot assume that judges will offer an opportunity to amend after an adverse merits decision.

Key passages with plain-English translation

At [51] Preston CJ stated: "in order for a consent authority to be satisfied that an applicant's written request has 'adequately addressed' the matters required to be demonstrated by cl 4.6(3), the consent authority needs to be satisfied that those matters have in fact been demonstrated. It is not sufficient for the request merely to seek to demonstrate the matters in subcl (3) (which is the process required by cl 4.6(3)), the request must in fact demonstrate the matters in subcl (3) (which is the outcome required by cl 4.6(3) and (4)(a)(i))." In plain English, a cl 4.6 request cannot succeed by raising plausible-sounding arguments; the judge must be persuaded that the arguments actually prove the two statutory propositions.

At [72]-[73] the Court said: "There is no warrant to construe the word 'views' in objective (b) as being limited to only the significant views identified in the Character Statement... It was a question of fact and not law whether the 'pleasant verdant outlook' identified fell within the meaning of a 'view'." Translation: Planning lawyers cannot import DCP lists of iconic views into the LEP objective. Whether the trees visible from next door count as a "view" is a practical judgment the trial judge makes on the evidence; the Court of Appeal will not revisit it on a legal appeal.

On the amber light approach at [107]: "the so called 'amber light approach' has no statutory basis in the EPA Act, the Court Act or any Court Rules... There can be no legitimate expectation that an approach with no statutory basis and of questionable legality will be adopted." Plain English: Because the EPA Act does not authorise judges to invite mid-stream amendments in Class 1 appeals, a party cannot complain of unfairness when a judge who has flagged the possibility ultimately decides the case on the plans as lodged.

At [53] Moore J's primary reasoning (adopted on appeal) was quoted: "The building envelope is merely a target, a target which is subject to other planning constraints..." This passage rejects the idea that a developer can assume it is entitled to every last square metre and then use that assumption to justify a height breach.

What fact patterns trigger this precedent

The decision is triggered whenever a cl 4.6 request for a height contravention relies on an asserted entitlement to achieve the maximum floor space or gross floor area permitted by all controls taken together. It applies where the request argues that compliance would force relocation of floor space in a way that harms heritage or other objectives, or conversely that non-compliance produces a "better outcome". It is engaged when a neighbouring resident's outlook of vegetation is characterised as a "view" whose loss is said to be inconsistent with objective (b). The case is relevant where the relevant "area" for objective (f) is contested and one party seeks to confine analysis to streetscape while the other argues for a larger DCP planning area. It is directly applicable to any contention that a judge must offer an amber light amendment after indicating during the hearing that submissions on the point are required. Fact patterns involving steep sites with varying height exceedances, or proposals adjacent to heritage items where setback reduction is debated, will engage the ratio on the floor-space redistribution argument.

How later courts have treated it

The judgment itself applies and approves the construction advanced by Basten JA in Al Maha at [21]-[24] and the analysis in Baron Corporation at [75]-[80]. It treats those decisions as correctly stating that cl 4.6(4)(a)(i) requires actual demonstration of the cl 4.6(3) outcomes. The Court treats Ku-ring-gai Council v Bunnings Properties Pty Ltd [2019] NSWCA 28 as settling that the amber light approach lacks statutory foundation and cannot ground a legitimate expectation. Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 and Minister Administering Crown Lands Act v Bathurst Local Aboriginal Land Council (2009) 166 LGERA 379 are applied to reinforce the principle that perverse or illogical factual findings do not constitute error of law on a s 57 appeal. The decision treats Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118 as correctly stating the task but clarifies that the earlier language must be read consistently with the requirement of actual demonstration. Because the Court of Appeal has authoritatively construed the standard instrument clause that appears in every NSW LEP, later courts exercising Class 1 jurisdiction must apply the same rigorous evaluative exercise when assessing cl 4.6 requests. The judgment's treatment of "views" and "area" as primarily factual matters narrows the scope for legal challenge on those issues in subsequent appeals.

Still-open questions

The judgment expressly leaves open whether legal unreasonableness in the sense explained in Minister for Immigration and Border Protection v SZVFW (2018) 92 ALJR 713 can apply to factual findings made in Class 1 proceedings. It notes the point "without deciding this" at [75]. The precise boundaries of the "area" for objective (f) remain factual and case-specific; the Court does not prescribe whether a DCP Character Statement must be the starting point in every case. Although the amber light approach is described as of "questionable legality", the Court does not finally decide that it is unavailable in all circumstances, only that it cannot be demanded as of right. The interaction between cl 4.6(4)(a)(ii) consistency with zone objectives and height standard objectives is not explored because the primary judge's findings on the height objectives were sufficient. Whether a request that demonstrates one of the Wehbe ways but not another can still "adequately address" cl 4.6(3) when the ways are presented cumulatively is not conclusively determined, although the Court accepted that addressing the principal argument disposed of both ways in this case. These questions will require resolution in future appeals.

Judgment (24 paragraphs)

[1]

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

[2]

HEADNOTE [This headnote is not to be read as part of the judgment] The appellant, RebelMH Neutral Bay Pty Limited ("Rebel"), sought consent to consolidate four allotments of land, demolish existing buildings and erect a 5-storey residential flat building with basement car parking. North Sydney Council ("the Council") failed to determine the development application within the prescribed time and Rebel appealed the deemed refusal of consent under s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) ("EPA Act"). The appeal was heard in the Class 1 jurisdiction of the Land and Environment Court against the Council's refusal of consent. The proposed residential flat building would contravene the height development standard under cl 4.3(2) of North Sydney Local Environmental Plan 2013 ("NSLEP"). A consent authority may grant consent to a development that contravenes a development standard subject to the requirements of cl 4.6 of NSLEP. Clause 4.6(3) requires the consent authority to consider a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating (a) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and (b) that there are sufficient environmental planning grounds to justify contravening the development standard. Clause 4.6(4)(a) provides that consent cannot be granted unless the consent authority is satisfied that the written request "adequately addresses" the matters required to be demonstrated by cl 4.6(3), and that the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out. Rebel submitted an amended written request ("the request") to the Court pursuant to cl 4.6. The primary judge dismissed the appeal as he was not satisfied that the request had adequately addressed the matters required to be demonstrated by cl 4.6(3) of NSLEP. The primary judge also found that the proposed development was not in the public interest because it was not consistent with objectives (b) and (f) of the height development standard. Objective (b) was to promote the retention and, if appropriate, sharing of existing views. Objective (f) was to encourage an appropriate scale and density of development that was in accordance with, and promoted the character of, an area. Rebel appealed against the primary judge's decision under s 57 of the Land and Environment Court Act 1979 on questions of law. The questions on appeal were: (i) Whether the primary judge misconstrued and misapplied cl 4.6 by finding that to "adequately address" the matters required to be demonstrated in cl 4.6(3), the request must actually demonstrate those matters, rather than merely seek to demonstrate those matters; (ii) Whether the primary judge erred by finding that any inadequacy in relation to any argument in the request invalidated the request as a whole and not addressing the other arguments in the request; (iii) Whether the primary judge misconstrued and misapplied objective (b) of the height development standard by finding that a 'pleasant verdant outlook' was a 'view' within the meaning of the objective; (iv) Whether the primary judge misconstrued and misapplied objective (f) of the height development standard by addressing only the immediate streetscape as representative of the relevant 'area'; and (v) Whether the primary judge denied the appellant procedural fairness by not affording it the "amber light approach" to permit it to amend the development application to reduce the height of the proposed development before dismissing the appeal. The Court (Preston CJ of LEC, Gleeson and Payne JJA agreeing) dismissed the appeal and held: In relation to (i): (1) The primary judge did not misconstrue or misapply cl 4.6. In order for a consent authority to be satisfied that an applicant's request has "adequately addressed" the matters required to be demonstrated by cl 4.6(3), the consent authority needs to be satisfied that those matters have in fact been demonstrated: at [51]. It is not sufficient that the request merely seeks to demonstrate or covers those matters: at [51]. Al Maha Pty Ltd v Huajun Investments Pty Ltd (2018) 233 LGERA 170; [2018] NSWCA 245, Initial Action Pty Ltd v Woollhara Municipal Council [2018] NSWLEC 118, and Baron Corporation Pty Limited v Council of the City of Sydney [2019] NSWLEC 61 considered. In relation to (ii): (2) The primary judge did not in fact find that any inadequacy in any argument invalidated the request as a whole or fail to address the arguments raised in the request: at [53]-[54]. In relation to (iii): (3) The primary judge did not misdirect himself as to the meaning of 'views' in objective (b): at [72]. The meaning of 'views' in objective (b) is not limited to significant views: at [72]. (4) It was a question of fact and not law whether the 'pleasant verdant outlook' identified fell within the meaning of a 'view': at [73]. Even if this finding of fact was perverse or unreasonable, or the reasoning whereby the finding of fact was reached was demonstrably unsound, there would still not be an error on a question of law: at [73]. Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139, Randwick City Council v Manousaki (1988) 66 LGRA 330 and Minister Administering Crown Lands Act v Bathurst Local Aboriginal Land Council (2009) 166 LGERA 379; [2009] NSWCA 138 applied. In relation to (iv): (5) The primary judge's analysis of the consistency of the proposed development with the scale and density of development in the area was factual and no error of law is revealed: at [98]. In relation to (v): (6) The primary judge did not deny the appellant procedural fairness by not providing the appellant an opportunity to amend the application before dismissing the appeal: at [107]. That certain Commissioners have used an 'amber light approach' does not give rise to a legitimate expectation that others will do so where the approach has no statutory basis and is of questionable legality: at [107]. Ku-ring-gai Council v Bunnings Properties Pty Ltd [2019] NSWCA 28 and Saffioti v Kiama Municipal Council [2019] NSWLEC 57 applied. (7) The particular statements of the primary judge at the hearing asking the parties to address him on the appropriateness of an 'amber light approach' could only give rise to an expectation that the parties would be given the opportunity to address the primary judge during the hearing and not after: at [108]-[109]. The appellant was invited to address the primary judge on the issue and could have done so: at [110].

[3]

Judgment

GLEESON JA: I agree with Preston CJ of LEC.
PAYNE JA: I have read the decision of Preston CJ of LEC in draft. I agree with the orders proposed by his Honour and, essentially, with his Honour's reasons. My additional reasons, which are not intended to be inconsistent with his Honour's, may be briefly expressed.
Fundamental to the appellant's case, in grounds 1-2, was a proposition that clause 4.6(4)(a)(i) of the North Sydney Local Environmental Plan 2013 should be read as providing that the term "adequately addressed" meant simply "addressed". The appellant submitted that clause 4.6(4)(a)(i) required only that the primary judge be satisfied that the request to dispense with the relevant maximum height requirement contained an argument about each of the matters required to be demonstrated by cl 4.6(3).
Although it was unnecessary finally to decide the correct construction of cl 4.6(4) in Al Maha, I agree with the construction advanced in that case by Basten JA, with whom Leeming JA agreed, at [21]-[24]. Properly construed, a consent authority has to be satisfied that an applicant's written request has in fact demonstrated the matters required to be demonstrated by cl 4.6(3). Clause 4.6(3) requires the consent authority to have "considered" the written request and identifies the necessary evaluative elements to be satisfied. To comply with subcl (3), the request must demonstrate that compliance with the development standard is "unreasonable or unnecessary" and that "there are sufficient environmental planning grounds to justify" the contravention. It would give no work to subcl 4.6(4) simply to require the consent authority to be satisfied that an argument addressing the matters required to be addressed under subcl (3) has been advanced.
In relation to grounds 3 and 4 of the notice of appeal, I agree with the reasons of Preston CJ of the LEC.
In relation to ground 5 of the notice of appeal, the appellant contended that the primary judge erred by raising the prospect of the "amber light" approach only to dismiss the proceedings without giving the appellant the opportunity to amend the application to reduce the height of the proposed development. Little was said orally about ground 5 of the notice of appeal by the appellant for good reason. The point was without merit.
I agree with Preston CJ of the LEC that the appellant had no legitimate expectation that the "amber light" approach, an approach with no statutory basis and of questionable legality, would be adopted. After the decision of this Court in Ku-ring-gai Council v Bunnings Properties Pty Ltd [2019] NSWCA 28, and in particular the reasons of Basten JA in that case, it is doubtful that the "amber light" approach" is legally available. In any event, in the present case, as Preston CJ of the LEC explains, the appellant was given every opportunity to say what it wanted about the "amber light" approach and there was no denial of procedural fairness.

[4]

Nature of appeal and outcome

RebelMH Neutral Bay Pty Ltd ("Rebel") owns and wishes to develop four allotments of land at 14, 16, 16A and 16B Thrupp Street, Neutral Bay. Rebel applied to North Sydney Council ("Council") for development consent to consolidate the allotments, demolish existing buildings and erect a 5-storey residential flat building with basement car parking.
The proposed building would contravene the applicable development standard under cl 4.3(2) of North Sydney Local Environmental Plan 2013 ("NSLEP") limiting the height of buildings for the land to 12 metres. The proposed building had a maximum height of 15 metres. The slope of the site, from north to south, resulted in non-compliances ranging from 0.4 metres (a 3% exceedance) to 3 metres (a 25% exceedance). Rebel submitted to the Council a written request under cl 4.6 of NSLEP seeking to justify the contravention of the height development standard.
Rebel appealed against the Council's deemed refusal of the development application to the Land and Environment Court. Before and at the hearing of the appeal, Rebel revised the plans for the proposed development and submitted a revised request under cl 4.6 of NSLEP.
The appeal was heard and determined by Moore J: RebelMH Neutral Bay Pty Ltd v North Sydney Council [2018] NSWLEC 191. The primary judge held that: "(1) The request pursuant to cl 4.6 of the North Sydney Local Environmental Plan 2013 to dispense with compliance with the relevant maximum height shown on the Height of Buildings Map is refused; (2) The appeal is dismissed; (3) Development Application DA177/17 for the construction of a residential flat building at 14, 16, 16A and 16B Thrupp Street, Neutral Bay, is refused;…"
The primary judge's first order was a result of the primary judge finding that he was not satisfied that: 1. Rebel's written request had adequately addressed the matters required to be demonstrated by cl 4.6(3)(a) and (b) of NSLEP; and 2. the proposed development will be in the public interest because it is consistent with the objective of the height development standard (the primary judge finding that it was not consistent with two of the objectives, objectives (b) and (f), of cl 4.3(1) of NSLEP).
Rebel appealed against the primary judge's decision under s 57 of the Land and Environment Court Act 1979 ("Court Act") on questions of law. The amended notice of appeal raised five grounds: 1. misconstruction and misapplication of cl 4.6(3) and (4)(a)(i) of NSLEP (grounds 1 and 2); 2. misconstruction and misapplication of objective (b) of the objectives of the height development standard (ground 3); 3. misconstruction and misapplication of objective (f) of the objectives of the height development standard (ground 4); and 4. denial of procedural fairness by not affording Rebel the "amber light approach" to permit it to amend the development application to reduce the height of the proposed development (ground 5).

[5]

The legislative framework

Rebel could not carry out the proposed development unless it obtained development consent: s 4.2(1) of the Environmental Planning and Assessment Act 1979 ("EPA Act"). The applicable local environmental plan, NSLEP, zoned the land on which the development is proposed to be carried out as Zone R4 High Density Residential. Residential flat buildings, the applicable purpose of the proposed development, are permitted with consent in the R4 Zone.
Clause 4.3 of NSLEP specifies the maximum height of buildings on land in the North Sydney local government area on the Height of Buildings Map. In the local area designated "M", which includes the land on which the development is proposed to be carried out, the maximum height shown on the Height of Buildings Map is 12 metres: cl 4.3(2) and the Height of Buildings Map.
This provision of NSLEP is a development standard for the purposes of the EPA Act and NSLEP, as it fixes a standard in respect of an aspect of development, being the height of a building (see paragraph (c) of the definition of "development standard" in s 1.4 of the EPA Act).
The objectives of the height development standard specified in cl 4.3(1) of NSLEP are: "(a) to promote development that conforms to and reflects natural landforms, by stepping development on sloping land to follow the natural gradient, (b) to promote the retention and, if appropriate, sharing of existing views, (c) to maintain solar access to existing dwellings, public reserves and streets, and to promote solar access for future development, (d) to maintain privacy for residents of existing dwellings and to promote privacy for residents of new buildings, (e) to ensure compatibility between development, particularly at zone boundaries, (f) to encourage an appropriate scale and density of development that is in accordance with, and promotes the character of, an area."
Clause 4.6 of NSLEP provides an exception to the development standards in NSLEP, including the height development standard in cl 4.3. Clause 4.6 of NSLEP is a standard provision of local environmental plans throughout New South Wales. It derives from cl 4.6 of the Standard Instrument (Local Environmental Plans) Order 2006. Clause 4.6 provides, so far as is relevant: "(1) The objectives of this clause are as follows: (a) to provide an appropriate degree of flexibility in applying certain development standards to particular development, (b) to achieve better outcomes for and from development by allowing flexibility in particular circumstances. (2) Development consent may, subject to this clause, be granted for development even though the development would contravene a development standard imposed by this or any other environmental planning instrument. However, this clause does not apply to a development standard that is expressly excluded from the operation of this clause. (3) Development consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating: (a) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and (b) that there are sufficient environmental planning grounds to justify contravening the development standard. (4) Development consent must not be granted for development that contravenes a development standard unless: (a) the consent authority is satisfied that: (i) the applicant's written request has adequately addressed the matters required to be demonstrated by subclause (3), and (ii) the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, and (b) the concurrence of the Secretary has been obtained."

[6]

The alleged misconstruction and misapplication of cl 4.6

[7]

Rebel's arguments that the primary judge erred

Rebel contended that the primary judge misconstrued the combined effect of cl 4.6(3) and cl 4.6(4)(a)(i) by approaching cl 4.6(4)(a)(i) on the basis that, in order to be satisfied that the request "adequately addressed the matters required to be demonstrated" by cl 4.6(3), he was required to be satisfied of the accuracy and correctness of the facts and contentions advanced in the request in support of those grounds.
Rebel submitted that the requirement of cl 4.6(4)(a)(i) that the consent authority be satisfied that the request has "adequately addressed" the matters required to be demonstrated by cl 4.6(3) does not require the consent authority to evaluate for itself whether the matters in cl 4.6(3) have been established, only that the request adequately addresses those matters. Rebel submitted: "The word "adequate" as an adjective means "equal to the requirement or occasion; fully sufficient, suitable, or fit." In a legal context it means "reasonably sufficient" for legal action: adequate grounds. The word "address" as a verb, means to "deal with (a problem, question, etc.)". It therefore refers to coverage of relevant matters. Applying these definitions, the consent authority must be satisfied that the request covers or deals with the required matters in clause 4.6(3)(a) in a reasonably sufficient way. A request under clause 4.6 is a submission based on the views of the applicant. This is recognised with the use of the words in clause 4.6(3) "that seeks to justify the contravention of the development standard". Hence it is not an evaluation. The evaluation is carried out by the consent authority, based on the public interest test in clause 4.6(4)(a)(ii), once the requirements of the written request are satisfied. It follows that satisfaction as to the adequacy of the request does not require the consent authority to agree with the conclusions of a request, nor the accuracy of the factual assertions contained within it. A consent authority does not have to directly form the opinion of satisfaction regarding those matters. What is required is that the consent authority has before it a document that adequately addresses these matters, which will be taken into consideration with other relevant matters."
Rebel submitted that this was not the approach adopted by the primary judge. He sought to evaluate whether the matters in cl 4.6(3) were established in fact. Rebel submitted that the primary judge misdirected himself by proceeding on the basis that to "adequately address" a matter meant to not merely cover it, but to cover it in a manner where he agreed with the underlying facts, language, contentions and conclusions.

[8]

The Council's argument that the primary judge did not err

The Council submitted that the primary judge did not err in his construction or application of cl 4.6(3) and (4)(a)(i) of NSLEP. The primary judge made a factual, evaluative judgment involving no error on a question of law.
The Council noted that the primary judge correctly summarised the decision-making approach required by cl 4.6 generally (at [44]-[47]) and cl 4.6(4)(a)(i) particularly (at [49], [51]). The primary judge addressed the text of the written request from the applicant seeking to justify the contravention of the height development standard (at [52]-[63]).
The Council noted that the primary judge was critical of the adequacy of the written request "primarily because of the assumptions, or assertions, contained within the written request that the floor space foregone if the height exceedance was not permitted would inevitably result in that floorspace having to be relocated elsewhere in a revised development."
The Council submitted that the primary judge's reasoning was uncontroversial and was not challenged in the appeal. Rebel accepted that it was legally open to the primary judge to reject the argument in the request concerning redistribution of floor space.
The Council submitted that the primary judge made an evaluative judgment concerning a factual matter, that the request had not adequately addressed the matters required to be demonstrated by cl 4.6(3), which was open on the evidence.
The Council submitted that even if the finding of fact was erroneous, no error of law arises. Neither erroneous findings of primary fact nor the drawing of illogical or inappropriate inferences will constitute an error of law: Minister Administering Crown Lands Act v Bathurst Local Aboriginal Land Council (2009) 166 LGERA 379; [2009] NSWCA 138 at [197]; Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 156.
The Council submitted that Rebel's construction of cl 4.6(3) and (4)(a)(i) is erroneous. These provisions do not merely require that the request address the matters in cl 4.6(3) but that it "adequately" addresses the matters that are "required to be demonstrated by subclause (3)". This requires the consent authority to be satisfied that the demonstration required under subcl (3) has occurred: Al Maha Pty Ltd v Huajun Investments Pty Ltd (2018) 233 LGERA 170; [2018] NSWCA 245 at [23] and Baron Corporation Pty Limited v Council of the City of Sydney [2019] NSWLEC 61 at [76]-[80].

[9]

The primary judge did not err in construing cl 4.6

I find that Rebel has not established that the primary judge erred on a question of law in his construction or application of cl 4.6. The construction of cl 4.6 contended for by Rebel is erroneous.
I have, over the years, endeavoured to construe both the predecessor to cl 4.6, State Environmental Planning Policy No 1 - Development Standards ("SEPP 1") (in Wehbe v Pittwater Council), and cl 4.6 of the Standard Instrument (in Randwick City Council v Micaul Holdings Pty Ltd (2016) 225 LGERA 94; [2016] NSWLEC 7 and Initial Action Pty Ltd v Woollahra Municipal Council).
Rebel did not contest these constructions of the provisions of SEPP 1 and cl 4.6. Indeed, Rebel sought to rely on language that I had used in Initial Action Pty Ltd v Woollahra Municipal Council at [25] that: "The consent authority, or the Court on appeal, must form the positive opinion of satisfaction that the applicant's written request has adequately addressed both of the matters required to be demonstrated by cl 4.6(3)(a) and (b). As I observed in Randwick City Council v Micaul Holdings Pty Ltd at [39], the consent authority, or the Court on appeal, does not have to directly form the opinion of satisfaction regarding the matters in cl 4.6(3)(a) and (b), but only indirectly form the opinion of satisfaction that the applicant's written request has adequately addressed the matters required to be demonstrated by cl 4.6(3)(a) and (b)."
Rebel submitted this language supported its construction of cl 4.6(4)(a)(i) that the consent authority, in order to be satisfied that the applicant's written request has "adequately addressed" the matters in cl 4.6(3), does not need to agree with the factual assertions, arguments or conclusions concerning the matters in cl 4.6(3) contained in the request, but only that it "has before it a document that adequately addresses these matters."
Rebel did contest, however, the construction of cl 4.6(3) and (4) suggested by Basten JA in Al Maha Pty Ltd v Huajun Investments Pty Ltd at [23] and me in Baron Corporation Pty Limited v Council of the City of Sydney at [75]-[80].
I reject Rebel's construction of cl 4.6(3) and (4)(a)(i). It gives no work to, and is contrary to the mandatory words of, both provisions, for the reasons given by Basten JA in Al Maha Pty Ltd v Huajun Investments Pty Ltd and me in Baron Corporation Pty Limited v Council of the City of Sydney. In Al Maha Pty Ltd v Huajun Investments Pty Ltd, Basten JA said at [21]-[24]: "A consideration of legal error should start by identifying the criterion as to which the Commissioner was to be satisfied. On a literal reading, subcl (4)(a)(i) merely required that she be satisfied that the applicant had taken two steps, namely, that it had, first, made a written request to be excused compliance with the development standard and, secondly, "adequately addressed" the matters set out in subcl (3). On that (narrow) reading, the Commissioner did not need to form any view herself about the justification for failing to comply with the development standard. The alternative reading is that the matters would not be "adequately" addressed unless they in fact justified the non-conformity. In other words, the Commissioner had to be satisfied that there were proper planning grounds to warrant the grant of consent, and that the contravention was justified. The second reading is attractive for three reasons. First, in its terms, it gives work to the evaluative requirement implicit in the need to be satisfied that certain matters have been "adequately" addressed. Secondly, this is not a gateway provision prior to public consultation or further assessment; it is a criterion for the ultimate grant of consent. Thirdly, the narrow approach fails to give separate work to subcll (3) and (4). Thus, subcl (3) requires the consent authority to have "considered" the written request and identifies the necessary evaluative elements to be satisfied. That is, to comply with subcl (3), the request must demonstrate that compliance with the development standard is "unreasonable or unnecessary" and that "there are sufficient environmental planning grounds to justify" the contravention. It would give no work to subcl (4) to simply require the Commissioner to be satisfied that the demonstration required under subcl (3) had occurred. The additional step is that the request satisfied the Commissioner that it should be granted. However, it is not necessary to resolve this issue in this case, because it should be accepted that the Commissioner did not form either state of satisfaction. Further, it is not appropriate to determine the issue in the absence of submissions as to the purpose and extent of the departures of the language of cl 4.6 from its predecessor, State Environmental Planning Policy No 1 - Development Standards, cll 7 and 8."

[10]

The alleged misconstruction and misapplication of objective (b)

[11]

The primary judge's finding of inconsistency with objective (b)

The primary judge found that he was not satisfied that the proposed development will be in the public interest because he found it will not be consistent with one of the objectives of the height development standard in cl 4.3, being objective (b) "to promote the retention and, if appropriate, sharing of existing views." The primary judge found that the existing view to the west from a nearby apartment (the Wallis apartment) across the site to trees and vegetation and beyond to the Milsons Point skyline was a "pleasant verdant outlook" (at [82] of the judgment). The primary judge found that the proposed non-height compliant development would significantly reduce the view (at [83]), but a height compliant development "would protect a significant portion of this verdant view" (at [84]).
The primary judge found that the cl 4.6 written request was inadequate in three respects: first, in dismissing "the vegetated outlook to the west from the Wallis apartment as merely blocking the view rather than forming a desirable element of the outlook itself" (at [87]); secondly, in misapplying the concept of "sharing" of views: the creation of expansive and attractive views for a new development at the expense of removal of portion of a pleasant outlook from an existing development cannot be regarded as "sharing" (at [89]); and thirdly, the non-height compliant element of the proposed development did not "promote (or encourage) the retention of views but is antithetical to it" (at [90]).
The primary judge therefore found that the cl 4.6 written request did not demonstrate that the proposed development will be consistent with objective (b) of the height development standard (at [91]).

[12]

Rebel's argument that the primary judge erred

Rebel argued that the primary judge erred in his construction of objective (b) of the height development standard in cl 4.3 and in his application of cl 4.6(4)(a)(ii) to that objective.
Rebel firstly contended that the concept of "views" in objective (b) does not include the "pleasant verdant outlook" (at [82]), "verdant view" (at [84]), "vegetated outlook" (at [87]) or "pleasant outlook" (at [89]). Rebel submitted that the concept of a "view" in objective (b) of the height development standard must be understood in the context of NSLEP as a whole. NSLEP regulates development in the North Sydney local government area and does so having regard to the particular features of that local government area. In determining what is a view in the North Sydney local government area, Rebel submitted that regard should be had to North Sydney Development Control Plan 2013 ("NSDCP"), which provides guidance in relation to NSLEP (as s 3.42 of the EPA Act provides).
NSDCP locates the site in the Neutral Bay Planning Area and the Neutral Neighbourhood (the relevant Locality Area within the Planning Area). The Character Statement for the Neutral Neighbourhood identifies "Significant Elements", one of which is "Views". Element P9 provides that: "The following views and vistas are to be preserved and where possible enhanced: (a) views from streets and reserves to Sydney Harbour and beyond; (b) [6 lookouts are identified]."
Rebel submitted that this Character Statement limited what can constitute a "view" for the purposes of objective (b) of the height development standard. Rebel submitted that: "A view will therefore be a view of something which significantly enhances the amenity or desirability of the land from which it is viewed, for example, attractive natural features, such as water, a harbour, or other items of natural beauty, or views of significant items of built form, such as the City."
Rebel contended that the outlook from the Wallis apartment was of "neither water nor land", was "non-iconic and partial" and was "nothing out of the ordinary".
Rebel submitted that, to the extent that the primary judge construed objective (b) as promoting the retention of all outlooks, and not only "views", he misdirected himself. Alternatively, Rebel submitted that the primary judge's finding that the "pleasant outlook" was a "view" was legally unreasonable, citing Minister for Immigration and Border Protection v SZVFW (2018) 92 ALJR 713; [2018] HCA 30 at [10], [11].

[13]

The Council's argument that the primary judge did not err

The Council submitted that the primary judge's finding that the "pleasant verdant outlook" from the Wallis apartment was a "view" to which objective (b) of the height development standard applied, that the proposed development would significantly reduce that view, and that this significant reduction in view was inconsistent with objective (b) of promoting retention and, if appropriate, sharing of existing views, were all findings of fact and involved no error of law.
The Council submitted that the primary judge did not confine his consideration of the question raised by cl 4.6(4)(a)(ii) to only the cl 4.6 request, but rather considered all of the evidence before the court. The Council referred to the primary judge's judgment where he recounted the site inspection and his viewing of the site of the proposed development from the Wallis apartment (at [7]-[12]), noting that the outlook was "an attractive local vegetated view" (at [12(3)]). The Council noted that the primary judge had given notice to Rebel raising the issue of the view loss from the Wallis apartment, notwithstanding it had not been raised by the Council as an issue (at [77]-[78]). The primary judge's addressing of this issue was not confined to the written request, but drew on the primary judge's observations during the site inspection and photographs including the photograph with the superimposed wire frame of the proposed development, and responded to Rebel's senior counsel's submissions on the issue (see, for example, at [80]-[85]). The Council submitted that the primary judge did not impermissibly limit himself to considering only the written request.

[14]

The primary judge did not err on objective (b)

Rebel has not established that the primary judge erred on a question of law in finding that he was not satisfied under cl 4.6(4)(a)(ii) that the proposed development will be in the public interest because it is consistent with objective (b) of the height development standard in cl 4.3.
First, the primary judge did not misdirect himself as to the meaning of the concept of "views" in objective (b). There is no warrant to construe the word "views" in objective (b) as being limited to only the significant views identified in the Character Statement for the Neutral Neighbourhood in NSDCP. Undoubtedly, the significant views there identified would be "views" for the purposes of objective (b), but they are not the only views for the purposes of objective (b). Many other less significant views can fall within the concept of "views" in objective (b).
It was a question of fact whether the "pleasant verdant outlook" from the Wallis apartment fell within the concept of "views" in objective (b). The primary judge's finding that the pleasant verdant outlook was a view was open on the evidence before the court. No error of law is revealed. Even if the findings of fact were to have been perverse or unreasonable, or the reasoning whereby this finding of fact was reached was demonstrably unsound, there still would not be an error on a question of law: Azzopardi v Tasman UEB Industries Ltd at 155; Randwick City Council v Manousaki (1988) 66 LGRA 330 at 333-334; Minister Administering Crown Lands Act v Bathurst Local Aboriginal Land Council at [197]-[201].
Only if the facts found by the primary judge were necessarily outside the description of the concept of "views" in objective (b), would the primary judge's contrary finding be wrong in law: Australian Gas Ltd Co v Valuer General (1940) 40 SR (NSW) 126 at 138; Hope v Bathurst City Council (1980) 144 CLR 1 at 10; Azzopardi v Tasman UEB Industries Ltd at 156. That, however, is not the case here.
Rebel argued that the primary judge's finding of fact that the "pleasant verdant outlook" was a "view" within objective (b) was legally unreasonable in the sense explained in Minister for Immigration and Border Protection v SZVFW. Even if legal unreasonableness in the sense explained in Minister for Immigration and Border Protection v SZVFW could apply to findings of fact made by a Judge or Commissioner in a matter in Class 1, 2 or 3 of the Land and Environment Court's jurisdiction (without deciding this), there was nothing legally unreasonable in the primary judge's finding that a "view" in objective (b) encompassed the "pleasant verdant outlook" in this case.

[15]

The alleged misconstruction and misapplication of objective (f)

[16]

The primary judge's finding of inconsistency with objective (f)

The primary judge found that he was not satisfied that the proposed development will be consistent with objective (f) of the height development standard, "to encourage an appropriate scale and density of development that is in accordance with, and promotes the character of, an area."
The primary judge noted at the outset of this section of his judgment that the question of whether or not objective (f) of the height development standard was met was moot given the other reasons why he had concluded that the cl 4.6 request must be refused and the appeal dismissed (at [92] of the judgment). However, the primary judge nevertheless went on to consider "but one aspect of what is engaged by" objective (f): "That which I address is confined to the immediate streetscape context (and hence a small subscale of the area as it might be defined for the purposes of this objective). Annexure A to this decision shows what will be the view from the public domain of a viewer standing on the eastern side of the intersection of Thrupp and Harriette Streets." (at [93] of the judgment).
The primary judge made two criticisms of the assertions in the cl 4.6 request concerning the consistency of the proposed development with objective (f) of the height development standard. The first was the assertion that "the building will only appear as a 3-4 storey building from all points of the public domain". The primary judge found instead that the building "can be seen to be, on its eastern façade and its northern end, clearly a 5 storey building" (at [96]). The second was that the primary judge doubted that it was appropriate to rely on vegetation on a neighbouring property for screening purposes (at [97]).
The primary judge concluded: "In this context, I cannot be satisfied that the exceedances of the height standard, clearly visible as the mansard-roofed area in Annexure A, can be regarded as 'promoting' the character of the area. The word 'promotes', as discussed in Mr Hale's submissions concerning views earlier quoted, has what is clearly a positive aspect to it. As Annexure A demonstrates, that could not be said of this development when viewed from the location from which the Annexure A perspective has been taken." (at [98]).

[17]

Rebel's argument that the primary judge erred

Rebel contended that the primary judge misdirected himself as to objective (f) by not identifying the relevant "area", determining the "appropriate scale and density of development" for the area, and determining "the character" of the area. Rebel contended that, in undertaking any such analysis, it is necessary to take into consideration NSDCP and the particular provisions of the Character Statement for the Neutral Bay Planning Area and the Neutral Neighbourhood.
Rebel noted that the primary judge confined his analysis to only the vantage point in Annexure A to the judgment, which was from the eastern side of the intersection between Thrupp and Harriette Streets. Rebel submitted that, in confining his analysis to only that vantage point, not considering the relevant area under NSDCP (the Neutral Bay Planning Area or the Neutral Neighbourhood), not determining the scale and character of the relevant area, and not assessing whether the proposed development was appropriate to that scale and density and whether it promoted the character of that area, the primary judge misdirected himself.
Rebel also contended that the primary judge formed his conclusion that the proposed development was not consistent with objective (f) only on the basis of the cl 4.6 request and Annexure A and not the evidence as a whole.

[18]

The Council's argument that the primary judge did not err

The Council noted at the outset that the primary judge's finding that he was not satisfied that the proposed development was consistent with objective (f) of the height development standard was not material to the primary judge's decision. The primary judge expressly stated that the question of whether or not the proposed development was consistent with objective (f) was moot, given his reasons for otherwise refusing the cl 4.6 request and dismissing the appeal.
The Council noted that it was for this reason that the primary judge considered it would be sufficient to only address the question by considering "but one aspect of what is engaged", by focusing on the immediate streetscape context, which the primary judge noted was but a "small subscale of the area as it might be defined for the purposes of this objective".
The Council noted that, by these statements, the primary judge was aware that the "area" for the purposes of objective (f) was a wider area than the "immediate streetscape context". The primary judge considered, however, that he could illustrate his point that the proposed development was not consistent with objective (f) by confining his analysis to the example of the immediate streetscape context. The primary judge used a view of the development (in Annexure A) from one particular streetscape forming part of the local streetscape and area (Thrupp Street between Aubin and Harriette Streets) as an illustration as to why he reached his conclusion that the proposed height exceedance of the building was inconsistent with objective (f) of the height development standard. The Council submitted that the primary judge, in so proceeding, did not misdirect himself and that his findings of fact were open on the evidence.
The Council noted that the parties had joined issue in the proceedings concerning the consistency of the proposed development with the character of the area on the basis that the relevant area was limited to the streetscape of Thrupp Street between Aubin and Harriette Streets. The Council raised the impact of the proposed development on the character on the area in Contention 5, which contended in part that "the proposed 5 storey scale of the building is inappropriate and fails to promote the built form character of Thrupp Street, between Aubin and Harriette Streets which is predominantly characterised by buildings of 3 or 4 storeys with a pitched roof or 4 storeys with a flat roof."

[19]

The primary judge did not err on objective (f)

Rebel has not established that the primary judge erred on a question of law in finding that the proposed exceedance of the height development standard was inconsistent with objective (f) of the height development standard.
First, the primary judge did not misdirect himself as to the "area" to be considered under objective (f). There is no warrant to construe the word "area" in objective (f) of the height development standard in cl 4.3 of NSLEP as being the relevant Planning Area of Neutral Bay Planning Area or the relevant Locality Area of Neutral Neighbourhood in NSDCP. Of course, the site of the proposed development is located within this Planning Area and this Locality Area and these two areas are much larger areas than the "immediate streetscape context" of the area of Thrupp Street between Aubin and Harriette Streets. But this does not mean that the "area" for the purposes of considering the consistency of a proposed development with objective (f) of the height development standard in cl 4.3 of NSLEP is necessarily the relevant Planning Area or Locality Area in NSDCP.
Rather, it is a question of fact of what is the relevant area for the purpose of determining the consistency of a proposed development with objective (f). For development of some lands, having regard to the nature, extent and other features of the development and the land on which that development is to be carried out, the area may be confined to the immediate streetscape but for other development of other land, having regard to the nature, extent and other features of that other development and that other land on which the development is to be carried out, the area may be a larger area, regardless of whether or not it extends as far as the relevant Locality Area or the still larger Planning Area.
The primary judge recognised that the area for the purposes of objective (f) may extend beyond the immediate streetscape context, but, for the reasons he gave, it was sufficient for him to confine his analysis to the immediate streetscape context to illustrate his point that the proposed development would not be consistent with objective (f). The primary judge did not misdirect himself as to the "area" to be considered under objective (f).
The primary judge's focus on the confined area of Thrupp Street between Aubin and Harriette Streets was also consistent with the parties' conduct of the proceedings in the court below. As the Council has submitted, Contention 5 limited the area for the purposes of determining the consistency of the proposed development with the character of the area to the area of Thrupp Street between Aubin and Harriette Streets. The parties adduced expert evidence and ran their respective cases on that basis. Rebel did not contend in the court below that the area to be considered for the purpose of determining the consistency of the proposed development with objective (f) was the much larger area of the Neutral Bay Planning Area or the Neutral Neighbourhood, rather than the confined area of Thrupp Street between Aubin and Harriette Streets. Rebel cannot on appeal argue a different case.

[20]

Rebel's argument that it was denied procedural fairness

Rebel noted that at the hearing the primary judge raised the prospect of affording Rebel an "amber light approach" if he determined that the proposed development was unacceptable in its current form but could be made acceptable if identified changes were to be made. Rebel submitted that the amber light approach has been commonly adopted by Commissioners of the Land and Environment Court in merit appeals and referred to the explanation of the approach in Ali v Liverpool City Council [2009] NSWLEC 1327 at [120].
Rebel acknowledged the recent criticisms by this court of the amber light approach in Ku-ring-gai Council v Bunnings Properties Pty Ltd [2019] NSWCA 28. However, Rebel submitted that once the prospect of the amber light approach was raised by the primary judge, it was procedurally unfair for the primary judge to dismiss the proceedings without affording Rebel an amber light approach, so as to allow it to amend the proposed development to reduce the height to comply with the height development standard.
Rebel submitted that, although the primary judge did not give any assurances that he would adopt the amber light approach, the proceedings were conducted on the basis that the question of whether he should adopt such an approach was a matter of argument. The primary judge, by dismissing the proceedings, denied Rebel the opportunity to make submissions on whether the amber light approach should be adopted and, if so, to seek leave to amend the development application to delete the top floor that exceeded the height development standard.

[21]

The Council's argument that Rebel was not denied procedural fairness

The Council contended that Rebel was not denied procedural fairness by the primary judge not affording Rebel an amber light approach. First, the amber light approach has no statutory basis, is of doubtful validity and is problematic in many ways: Ku-ring-gai Council v Bunnings Properties Pty Ltd at [20], [200] and [201].
Secondly, the primary judge gave no assurance to Rebel that he would afford an amber light approach. At best, the primary judge referred only to a "potential" amber light approach, and even that was limited to deleting the mansard roof element. Even then, the primary judge requested the parties to address him at the hearing about "whether I should adopt that proposition or not". In response to the primary judge's invitation, the Council made submissions that it was opposed to the primary judge giving an amber light approach. Rebel did not make any written or oral submission as to why the amber light approach should be adopted.
The Council submitted that Rebel's only expectation could therefore have been that it would be given the opportunity to address the primary judge at the hearing concerning whether the primary judge should adopt the amber light approach for the mansard roof element of the development. There could be no expectation that Rebel would be given a further opportunity, after judgment was delivered, to amend the development in other respects.
Thirdly, the Council submitted that Rebel was given an opportunity to be heard on the issue of the potential amber light approach, but chose not to avail itself of the opportunity. There was therefore no denial of procedural fairness.

[22]

There was no denial of procedural fairness

The primary judge was not obliged, by considerations of procedural fairness, to offer an amber light approach to Rebel. As this Court held recently in Ku-ring-gai Council v Bunnings Properties Pty Ltd at [8], [20], [200]-[209], the so called "amber light approach" has no statutory basis in the EPA Act, the Court Act or any Court Rules. As I said recently in another appeal on the ground of denial of procedural fairness by not offering an amber light approach, in Saffioti v Kiama Municipal Council [2019] NSWLEC 57 at [25]: "The fact that certain Commissioners of the Court might have labelled, described and applied the amber light approach in hearing and disposing of some appeals over which they presided does not give the approach any statutory or formal basis or give rise to any legitimate expectation that other Commissioners will adopt the amber light approach when hearing and disposing of appeals over which they preside. There can be no legitimate expectation that an approach with no statutory basis and of questionable legality will be adopted."
Secondly, the particular statements of the primary judge at the hearing did not give rise to any legitimate expectation that Rebel would be given an amber light approach in the judgment to be later delivered. On the first day of the hearing, the primary judge noted that he had put the potentiality of an amber light approach to the parties during the course of the site inspection and said that the parties will need "to deal with it at an appropriate time". On the fifth day of the hearing, the primary judge referred to the option that can arise in merit appeals of the amber light approach, but indicated that "the only potential amber light approach that it seems to me might be available, if I were to be attracted to it for some appropriate reason, is to delete the mansard roof element" and that "there is no other tinkering … with the design that I could do that would be capable of being accommodated within the present application". The primary judge invited the parties "at some stage I need you [the Council's senior counsel] and for Mr Hale [Rebel's senior counsel] to deal with in reply what you say about whether I should adopt that proposition or not."
These statements of the primary judge could only give rise to an expectation that the parties would be given the opportunity to address the primary judge during the hearing concerning whether an amber light approach should be adopted for the mansard roof element. The statements could not found a legitimate expectation that the parties would be given any further opportunity, after judgment was delivered, to address the primary judge on whether an amber light approach should be given or the aspects of the development in respect of which such an approach should be given.

[23]

Conclusion and orders

Rebel has not established any of its grounds of appeal that the primary judge erred on a question of law in deciding to refuse consent to Rebel's development application for the proposed development. The appeal should be dismissed with costs.
I propose the following orders: 1. The appeal is dismissed. 2. The appellant is to pay the respondent's costs of the appeal.

[24]

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: 06 June 2019

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