Renaldo Plus 3 Pty Limited v Hurstville City Council

Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430; Brimbella Pty Limited v Mosman Municipal Council (1985) 79 LGERA 367; Coles v Woollahra Municipal Council (1986) 59 LGRA 133; Farnworth Holdings Pty Limited v Botany Bay Council [2003] NSWLEC 177; Mison v Randwick Municipal Council (1991) 23 NSWLR 734; CASES CITED: Oshlack v Richmond River Shire Council & Anor (1993) 82 LGERA 222; Randwick Municipal Council v Crawley (1986) 60 LGRA 277; Renaldo Plus 3 Pty Limited v Hurstville City Council [2005] NSWLEC 315; Segal & Anor v Waverley Council [2005] NSWCA 310; Transport Action Group Against Motorways Inc v Roads & Traffic Authority (1999) 46 NSWLR 598

APPLICANT: Mr I Hemmings (barrister) SOLICITORS: Heidtman & Co LEGAL REPRESENTATIVES: RESPONDENT: Mr S Austin QC SOLICITORS: Deacons

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

11591 of 2004 Renaldo Plus 3 Pty Limited v Hurstville City Council [No 2]

JUDGMENT 1 Her Honour: This is an appeal by Hurstville City Council ("the Council") pursuant to s 56A of the Land and Environment Court Act 1979 ("the Court Act") against the decision of Brown C in Renaldo Plus 3 Pty Limited v Hurstville City Council [2005] NSWLEC 315 on 12 July 2005. In that case Brown C upheld the Applicant's appeal against a decision of the Council to refuse a development application for the demolition of all existing small shops and the erection of a supermarket and mixed commercial/retail and residential development at 47 - 67 Mulga Road, Oatley ("the site"). Grounds of the s 56A Appeal 2 The Council appealed the decision of Brown C on the following grounds:

1. The Commissioner erred in law in that he prematurely made an Order granting development consent without firstly resolving a critical issue, namely, the content of the Operation Management Plan.
2. The Commissioner erred in law in confining the Court's determination of the impacts on the character of the area to the character envisaged by the 3(a) - General Business Zone as reflected in the zone objectives and failed to take into consideration the impacts on character in the wider context required under Section 79C of the Act. Background 3 The Applicant submitted development application no. 204 0454 ("the development application") to the Council for the demolition of all existing small shops and the erection of a supermarket and mixed commercial/retail and residential development at the site. The site is zoned 3(a) - General Business Zone under the provisions of Hurstville Local Environmental Plan 1994 ("the LEP"). The details of the proposal are contained in [8] - [12] of Brown C's judgment.

4 During the hearing, the Commissioner had the benefit of hearing evidence from Mr Gary Shiels, the Court appointed town planning expert, Mr Barry Murray, the Court appointed acoustic expert and Mr David Ford the Court appointed arborist. Mr Andrew Darroch, a town planner, Mr Graham Pindar, a traffic engineer, Ms Catriona Mackenzie, an arborist and Mr Reginald Binding, feasibility manager with Coles, provided further evidence for the Applicant. Brown C also had the benefit of a site view on the first morning of the hearing and evidence from a number of residents opposing the proposed development.

5 The evidence during the hearing was, inter alia, that the proposal to demolish the existing shops would transform the scale of the shopping centre to one which would attract people beyond the immediate neighbourhood area, raise traffic difficulties for deliveries and generate additional traffic. Relevantly, the development application provided for a loading bay to service the proposed supermarket, located off Mulga Road at the western end of the site. As stated at [45] - [52] of the Commissioner's judgment, the loading dock was a significant issue in the proceedings. During the hearing, Brown C heard evidence from several experts on the suitability and impact of the proposed loading dock. The general consensus of the experts was that if the loading dock were operated in accordance with the proposed Operation Management Plan ("the OMP"), it would operate in an acceptable manner.

6 Brown C determined the appeal in favour of the Applicant and made the following orders dated 12 July 2005:

1. The appeal is upheld.
2. DA No. 204 0454 by Hurstville City Council for the demolition of all existing structures and the erection of a mixed commercial/retail and residential development at 47 - 67 Mulga Rd., Oatley is approved subject to the conditions in Annexure A.
3. …
4. Liberty to restore with 48 hours notice if no agreement is reached on the amended Operation Management Plan. Issue 1 - Failure to consider essential matter/lack of finality 7 The relevant sections of Brown C's judgment relating to the OMP are contained at [53] and [58]. At [53] of his judgment the Commissioner states: Management Plans (or similarly named documents) provide further details on the operation of a particular use that may not necessarily be appropriate as conditions of consent. Management Plans are a well known concept in environmental law ( Transport Action Group Against Motorways Inc v Roads & Traffic Authority [1999] NSWCA 196 at par 122) and can be used in a range of different circumstances. Often, and is the case in this application, the contents of a Management Plan are critical to the decision of whether a development application should be approved or refused. 8 At [58] of his judgment Brown C states: In my view, these requirements do not place an unreasonable obligation on the truck drivers or the Stockroom Manager or the Store Manager. While the need to contact the supermarket prior to the delivery is likely to be an additional task for truck drivers, I have little doubt that it will become simply second nature over time for drivers delivering to the site. In the event that deliveries cannot may [sic] be made at a specific time, I accept that the Operation Management Plan can adequately deal with this event although I am of the view that the Operation Management Plan should be amended to provide for suitable locations where trucks may park in situations where the rescheduling of the delivery is not appropriate or unnecessary. These locations should not potentially impact on the amenity of any residential area.

9 On 12 July 2005, the Commissioner required the parties to amend the OMP within seven days in relation to two matters, namely the suitable location for trucks to park in situations where rescheduling of a delivery is not appropriate or is unnecessary and the procedure for updating or changing the OMP. The parties did not reach agreement on the two outstanding matters and the case was listed before the Commissioner on 12 October 2005. The matter was stood over pending the outcome of this appeal.

Council's submissions 10 The Council argued that because the Commissioner had identified that the OMP was critical to whether development consent ought be granted it was necessary that the OMP be completely finalised as part of the judgment. By leaving two significant matters unresolved and for later determination, namely the suitable location for trucks to park while waiting to deliver in limited circumstances and the procedure for updating or changing the OMP, the Commissioner's decision to grant development consent was not final. Applicant's submissions 11 The Applicant submitted that a decision did not lack finality unless the matters that were unresolved by the determination were capable of changing the core purpose of the development or left for later an important aspect of the development that could alter the proposed development in a fundamental respect. As the two unresolved matters in the OMP did not go the core purpose of the development and could not alter the development in a fundamental respect, but rather were ancillary components to the determination, the development consent was sufficiently final to be lawful. Finding 12 The relevant principles in relation to finality are outlined in Mison v Randwick Municipal Council (1991) 23 NSWLR 734. In Mison, the Court of Appeal considered whether a development consent which left unresolved the height of a proposed building was final. Priestley JA (with whom Clarke and Meagher JJA agreed) stated at 737 that: In my opinion if a condition imposed upon a purported consent to a particular application has the effect of significantly altering the development in respect of which the application is made, then the purported consent is not a consent to the application. It does not seem to me to be necessary to consider the different and harder to establish test that compliance with the condition will make the application an 'entirely different development'.

The test I have stated is not complete. Certainly, in my opinion, if the fulfilment of a condition imposed upon a consent will significantly alter the development in respect of which the application was made, there has been no consent to the application. Further however, if the effect of an imposed condition is to leave open the possibility that development carried out in accordance with the consent and the condition will be significantly different from the development for which the application was made, then again, it seems to me that the council has not granted consent to the application made. 13 Accordingly, Priestley JA (with whom Clarke and Meagher JJA agreed) held at 738 - 739 that the purported consent was not a "consent" because by failing to specify the height of the proposed building the consent authority left open the possibility that the core purpose of the proposal could be significantly different to the application that was made.

14 Clarke JA also stated at 740 that: Where a consent leaves for later decision an important aspect of the development and the decision on that aspect could alter the proposed development in a fundamental respect it is difficult to see how that consent could be regarded as final.

15 In Oshlack v Richmond River Shire Council & Anor (1993) 82 LGERA 222 Stein J considered whether a condition of consent which left open issues of minimum road width and traffic rendered a development consent void for uncertainty. At 230, Stein J considered the Mison principles in the context of Class 4 proceedings holding that as the condition did not alter the development in a fundamental respect the consent was not void: … the applicant submits that the fourth provision leaves open for later decision an aspect of the development, that is, the precise width of the roads and the use of cul-de-sacs. Where a consent has been granted in such terms a question may arise whether the consent is final: Mison v Randwick Municipal Council (at 739-740; 354). If a consent leaves for later decision an important aspect of the development and the decision on that aspect could alter the proposed development in a fundamental respect, the consent cannot be regarded as final. In Scott v Wollongong City Council (1992) 75 LGRA 112 at 119, Samuels JA held that conditions which can be described as 'ancillary to the core purpose' of a development application "which leave final details to be settled, should be approached with [a] degree of flexibility" (see also the recent amendment to the Environmental Planning and Assessment Act , s91(3A), which is a legislative embodiment of the principle). In my view recommendation 4 is a condition of this nature and not void for want of finality. The future determination of the minimum road widths and the prevention, where possible, of through traffic will not alter the development "in a fundamental respect".

16 In Transport Action Group Against Motorways Inc v Roads & Traffic Authority (1999) 46 NSWLR 598, Mason P discussed the application of the Mison principle in relation to a proposal to modify an original application for a motorway under s 112(4)(b)(i) of the Environmental Planning and Assessment Act 1979 ("the EP&A Act"). Mason P (with whom Sheller JA agreed) considered that the Mison principle is not contravened merely because a management plan leaves matters open for later decision. Mason P stated at [122]: The Mison principle has been invoked to indicate the limits to use of management plans in the Pt 4 context: see CSR Ltd v Wingecarribee Shire Council (Land and Environment Court, Stein J, 17 December 1990, unreported). However, it has been recognised that the Mison principle is not contravened merely because a consent condition requires a management plan to address some issue: see, eg, Oshlack v Richmond River Shire Council (1993) 82 LGERA 222 at 228-231 ; Byron Shire Businesses for the Future Inc v Byron Council (1994) 84 LGERA 434 at 459-461, 464-466; Friends of Hinchinbrook Society Inc v Minister for Environment [No 3] (1997) 77 FCR 153 at 189; 95 LGERA 229 at 264.

17 Applying the principles set out in Mison and the later cases set out above, it is clear that there is no error of law made by Brown C in his findings in relation to the OMP and his decision to leave two outstanding matters for further resolution between the parties. Neither of these matters affects the fundamental nature of the proposal before the Commissioner. The Commissioner's statement in his judgment that the OMP was critical to whether consent ought be granted does not require that he resolve every last issue concerning the contents of the OMP in his final judgment if, in the exercise of this discretion, he considers they are matters which are suitable to be left to the parties to resolve, with the proviso in this case that it come back before him for final determination if the parties were unable to agree. There has been no failure to resolve a critical issue before granting development consent by the Commissioner and the Council is unsuccessful on this ground.

Issue 2 - Failure to consider/give reasons to the issue of character (i) Failure to consider the character of the area 18 The relevant sections of Brown C's judgment in relation to the issue of character are set out in [105] - [108]: Impact on character of the area

This was a matter raised consistently by the local residents when the application was advertised and when the Court visited the site. The resident concerns that the proposal will provide a shopping facility that will attract people beyond the immediate area is a valid concern as it will generate additional traffic and a change to the character of the existing centre that currently provides largely local service needs.

The strength of this concern must however be measured against the character envisaged by the council's planning instruments and the specific impacts of the additional traffic. The council planning instruments are a reflection of the form and type of development that are formulated through planning, exhibition and adoption by the council. In this case, the anticipated character has been complicated to some extent by the council's recent adoption of Amendments 60 and Amendment 66. I have previously found that the weight to be given to Amendments 60 and Amendment 66 should be not be [sic] given any significant weight in this case.

The impacts of the additional traffic were also not found to be so significant as to warrant the refusal of the development application.

On the basis of these findings, the appropriate character is that envisaged by the 3(a) - General Business Zone and reflected in the zone objectives. In consideration of cl 8(3) I find that the development is consistent with the objectives of the zone. 19 In his judgment Brown C also considered the impact of the proposal on car parking in the immediate area, tree loss and amenity on various properties in the surrounding area and in relation to noise. After considering the expert evidence and evidence from resident objectors the Commissioner concluded that the impacts of the proposed development were acceptable in these respects.

Council's submissions 20 The Council argued that Brown C erred in law by failing to give proper, genuine and realistic consideration to resident submissions pursuant to s 79C of the EP&A Act in determining the character of the area and the impact of the proposal on the character of the area. The Applicant argued that in considering the issue at [105] - [108] of his judgment, the Commissioner limited himself simply to the existing LEP and the objectives of the existing zone. Having found that the development was consistent with the objectives of the zone, the Commissioner then found, in considering the adverse impact on the character of the area as set out in the zoning, that the impact was acceptable. The Council submitted that accordingly the Commissioner erred by failing to consider the impact of the development on the character of the area generally as required by s 79C(1)(b) of the EP&A Act. Applicant's submissions 21 The Applicant submitted that the Commissioner's judgment disclosed an objective and reasoned approach to the merit assessment of a potential impact on character. The Applicant argued that in [105] - [108] it was clear that the Commissioner sought to address the impact on character by reference to the character envisaged by the Council's own planning instruments. After carrying out that assessment the Commissioner found, on the merits, that the impact was acceptable because the change caused by the proposal was consistent with the change anticipated in the Council's instruments. Finding 22 The likely impact of development on the surrounding locality is a matter that is required to be taken into account by a consent authority. Section 79C of the EP&A Act states: (1) In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application: … (b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality … 23 In Weal v Bathurst City Council (2000) 111 LGERA 181, Giles JA at 200 - 201 considered the relevant task for a consent authority under s 90(1) of the EP&A Act (now s 79C of the EP&A Act) and the Court's role in reviewing a determination: Under the Environmental Planning and Assessment Act 1979 ("the EPA Act") as it then stood, in determining a development application the consent authority was required to take into consideration such of a number of specified matters as were of relevance to the development the subject of the application (s 90(1))…

The terms of s 90(1) were mandatory: the Council was obliged to take into consideration relevant matters from the catalogue of matters in s 90(1), and to weigh them up in determining the development application. It had to inform itself sufficiently to be able to take into consideration the matters of relevance to the determination of the development application. With particular reference to para (b) of s 90(1), it had to be aware not only of the impact and the likely harm but also of available protective or mitigating means: so the conditions to be included in the consent were an integral part of the consideration ( Parramatta City Council v Hale (1982) 47 LGRA 319 at 338-9, 340,342; King v Great Lakes Shire Council (1986) 58 LGRA 336 at 384). Taking relevant matters into consideration called for more than simply adverting to them. There had to be an understanding of the matters and the significance of the decision to be made about them, and a process of evaluation, sufficient to warrant the description of the matters being taken into consideration ( Parramatta City Council v Hale at 335-6, 339; King v Great Lakes Shire Council at 384; Currey v Sutherland Shire Council (1998) 100 LGERA 365 at 374-5)… 24 The standard of assessment referred to in Weal by Giles JA was made in the context of judicial review proceedings. Section 79C(1) is necessarily broad in its description of the matters which must be taken into account by the Court in a s 97 appeal. The scope of the issues to be considered in the context of that section must be informed by the case as presented to the Court by the parties, confirmed most recently in Segal & Anor v Waverley Council [2005] NSWCA 310 at [43] - [44], and [93]. 25 Brown C has explicitly identified as an issue in [105] - [108] of his judgment the impact of the development on the character of the area. He has chosen to answer it in the context of the Council's current LEP without giving significant weight to draft Amendment 66, as he is entitled to do in exercising his discretion as to which factors ought be given weight. The judgment is criticised on the basis that it fails to properly consider submissions on the character of the area and the impact on the character of the surrounding residential areas. 26 It has been established that a "fine-tooth comb" approach should not be employed when examining s 56A appeals for errors of law (see Brimbella Pty Limited v Mosman Municipal Council (1985) 79 LGERA 367 at 368; Coles v Woollahra Municipal Council (1986) 59 LGRA 133 at 138; Randwick Municipal Council v Crawley (1986) 60 LGRA 277 at 283). The judgment when viewed as a whole clearly suggests the Commissioner was aware of the character of the area and gave it proper consideration. The Commissioner's judgment identified the nature of the area surrounding the proposed development, the number of resident views received and the general nature of their concerns and the Commissioner took a view of the site and immediate locality. The Commissioner has adopted an accepted approach of considering the particular zone where the site is proposed to see if it conforms and has concluded that it does. Given the detailed treatment by the Commissioner of specific issues raised such as traffic, parking, noise and amenity impacts on the immediate neighbours, all of which issues reflect the issues raised by the parties, there is no error of law disclosed in his reasoning.

(ii) Failure to give reasons on the issue of character Council's submissions 27 The Council submitted in the alternative to the above argument that Brown C erred in law by failing to give sufficient reasons for the resolution of the character issue in [105] - [108] contrary to his general duty to state reasons for his decision. Applicant's submissions 28 The Applicant argued that it was clear that Brown C's judgment disclosed an objective and reasoned approach to the merit assessment of the potential impact on character and that the Commissioner gave sufficient reasons for finding that the impact on character was acceptable.

Finding 29 The Commissioner's judgment identifies as an issue whether the proposal would have an unacceptable impact on the character of the area. Section [105] - [108] set out above identifies the Commissioner's reasoning on this issue. In Segal, Tobias JA considered the duty of a Commissioner of the Court to make findings and provide reasons. At [43] Tobias JA (with whom Beazley and Basten JJA agreed) stated: … in my opinion, it does not necessarily follow that a Commissioner or judge of the Land and Environment Court is required to give reasons only with respect to his or her subjective thought processes in coming to their particular decision. Notwithstanding those thought processes, their duty to give reasons would be contravened if they failed to address an issue joined between the parties which, if decided in a particular way, would result in a different decision to that to which the Commissioner or judge has arrived. Thus, if issues A, B and C be joined between the parties and the Commissioner or judge only addresses issues A and B, he or she will have erred in law by failing to address issue C if the resolution of that issue in favour of one or other of the parties would have resulted in a different outcome to that arrived at upon a determination of issues A and B. On the other hand, if issue C would have had no bearing upon the outcome arrived at in accordance with the determination of issues A and B, then it need not be addressed.

30 At [99], Tobias JA summarised his views: Accordingly, I would summarise my views on this aspect of the matter as follows:

(a) Although a Commissioner of the Land and Environment Court is obliged to consider the principal contested issues before him or her, each of those issues is the genus of which the various arguments in favour or against the resolution of the issue in a particular way are species. (b) It is unnecessary for a Commissioner or a judge of the Court to consider each of the species provided he or she has considered the genus. It is that which must be addressed in the Commissioner's or judge's reasons. Those reasons must be adequate to explain, by way of findings and reference to the evidence supporting the findings, the reasoning process adopted by the Commissioner or judge and which has led to his or her conclusion. …

31 In Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430, the Court of Appeal considered the adequacy of reasons given by a trial judge in the context of an appeal against the trial judge's findings in tort proceedings. Meagher JA stated at 444 that: What is the result of an inadequate statement of reasons?

It does not automatically follow that because the reasons for decision are inadequate then an appealable error has occurred. Examination of nearly any statement of reasons with a fine-tooth comb would throw up some inadequacies. Indeed, an appeal court will reserve any intervention to those situations in which it is left with no choice: where no reasons have been given in circumstances where there was an obligation to provide them and in circumstances where a statement of reasons is so inadequate as to constitute a miscarriage of justice. In other words, the statement of reasons must be looked at as a whole and the material inadequacies identified and considered.

32 Lloyd J has also usefully considered the issue of adequate reasons in the context of a s 56A appeal. In Farnworth Holdings Pty Limited v Botany Bay Council [2003] NSWLEC 177, Lloyd J stated at [16] that: The requirement to provide reasons, however, does not necessitate a tedious examination of the detailed evidence or a minute explanation of every step in the reasoning process that leads to the conclusion ( Soulemezis at 259). Reasoning should be such so as to "expose his train of thought" ( City Plan Services Pty Ltd v Sydney City Council at 289)…

33 Applying Segal to Brown C's judgment, I consider his reasoning process is clear and that he has expressly referred to the evidence on which he relies in reaching the conclusion that he does on the impact on character of the proposed development in light of the existing zoning on the site. While the Council's arguments sought to raise by analogy the A, B, C example in Segal that the Commissioner had failed to raise an issue which did have a bearing on the outcome, I do not consider that argument applies in the circumstances here.

34 As is clear from Beale, there would have to be a marked failure to give adequate reasons, when these are viewed as a whole, before an appeal court should intervene. There does not appear to be any such failure here when the whole of the judgement is considered. The Council is unsuccessful on this alternative ground. As the Council has been unsuccessful in this s 56A appeal costs should follow the event. Orders 35 The Court makes the following orders:

1. The Respondent's appeal under s 56A of the Land and Environment Court Act 1979 is dismissed.
2. The Respondent pay the Applicant's costs of this appeal.
3. The exhibits are to be returned.

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.