Save Our Street Incorporated v Settree

Land and Environment Court (NSW)|2006-07-28|Before: Biscoe J, Ms P, Mr J

INTRODUCTION 1 White Street, East Gosford is a pleasant, tree lined, suburban street. Several houses in the street enjoy views to Brisbane Waters. The houses are largely single storey. Residents concerned about development affecting the character of the street formed an incorporated association called "Save Our Street Incorporated", whose objects seem obvious enough from its name. It is the applicant in these proceedings and has been represented at the hearing before me by one of the residents, Ms de Lacy.

2 The applicant challenges the validity of a development consent granted by Gosford City Council for the replacement of one of the houses in the street with a four unit residential flat building. Ms de Lacy told me in her submissions that "Our group took action against development consent No. 25510/2004 as we see this proposed building being detrimental to our amenity, environment and privacy. It is simply an overdevelopment of the site with 4 townhouses replacing one house. If built, it will set a precedent for the future destruction of the street's single-storey fronted, park-like character. The 4-level building is a copy of a design in Terrigal, it is simply out of place, bulky, and takes no consideration of the view corridor over Brisbane Waters". I mention this in order to put it aside as a ground for upholding the applicant's claim, for the applicant and its constituent residents should understand that this is not an appeal on the merits, but an application for judicial review where a merits review is impermissible. Parliament has made no provision for a third party such as the applicant to appeal on the merits against the grant of development consent for a non-designated development such as this.

THE PROCEEDINGS 3 These are proceedings in class 4 of the Court's jurisdiction seeking a declaration that development consent No 25510/2004 dated 19 April 2005 granted by the Gosford City Council (the second respondent) on the application of the first respondent is void. The development application was for the erection of a building comprising four identical dwellings, which is characterised as a residential flat building, at 5 White Street, East Gosford, pursuant to Part 4 of the Environmental Planning and Assessment Act 1979 (EPA Act).

4 The applicant's case is that the development consent is void because it was granted in breach of s 79C(1)(a)(i) of the EPA Act and because it was unreasonable. Section 79C(1)(a)(i) obligated the council to "take into consideration… the provisions of any environmental planning instrument". The environmental planning instrument relevant to the present case is the Gosford Planning Scheme Ordinance (GPSO). First Claim: Dwelling floor areas - cl 28(2) GPSO 5 The first claim is that the development consent was beyond power to grant because the minimum site area prescribed by cl 28(2) of the GPSO was breached. This was described in the applicant's submissions as "the main issue". It raises an issue of construction of cl 28(2).

6 The subject land is within the 2(b) residential zone under the GPSO. This is a medium density zone. Clause 28(2) applies to land within the 2(b) residential zone and provides: A person shall not carry out development for the purposes of a residential flat building on land within a zone specified in Column 1 of the Table to this clause having a site area specified opposite that zone in Column 2 of that Table unless each dwelling to be erected having a floor area specified opposite that Zone in Column 3 of that Table will have a site area of not less than the area specified opposite that Zone in Column 4 of that Table.

7 The Table referred to relevantly provides: Column 1 Column 2 Column 3 Column 4 Zone Area of site in m2 Floor area of each dwelling in m2 Minimum site area for each dwelling in m2 2(b) Less than 2000 70-110 200 More than 110 250

8 The land area of the site is less than 2,000 square metres: it is 891.6 square metres. If, as the respondents contend, the "floor area of each dwelling" does not exceed 110 square metres then the four dwellings were permissible because the site area for each exceeds the minimum prescribed in the Table.

9 On the other hand, if, as the applicant contends, the "floor area of each dwelling" exceeds 110 square metres, then the four dwellings were not permissible, because the site area for each is less than the minimum prescribed in the Table.

10 The development application plans approved by the council indicate that units one and four have a floor area of 110 square metres and units two and three have a floor area of 109.6 square metres, excluding the garage and decks.

11 Expert planning witnesses for the parties conferred during the hearing and produced joint reports, which I accept, as to the floor area of each dwelling. They were Mr George Smith for the applicant and Mr Frederick Dobbs for the council. They agreed that the floor area of each dwelling was 104.72 square metres if the garage, void above the stair, store (off garage), garbage store and wall thickness (contentious elements) were all excluded, and 121.62 square metres if only the garage were excluded.

12 The critical question is whether the contentious elements, or any of them, should be excluded in determining the floor area, for the applicant's case depends upon establishing that the floor area exceeds 110 square metres.

13 The question is one of construction of the composite words "floor area of each dwelling" in the Table to cl 28(2).

14 The applicant submits that these words "floor area" have the same meaning as "floor space", as defined in cl 3(1) of the GPSO: ' Floor space ' in relation to a building or work, includes all wall thicknesses, ducts, vents, staircases and lift wells, but does not include: (a) in the case of a building, any parking space in the building being a space provided to meet the standards required by the consent authority (but not a parking space provided in excess of those standards) or any internal access to that parking space; (b) space used for the loading or unloading of goods; or (c) lift towers, cooling towers, machinery and plant rooms and any storage space related thereto. 15 If the applicant is correct in its construction, then the contentious elements, other than the garage, should be included when calculating the "floor area" of each dwelling and, thus, the floor area would exceed 110 square metres and the prescribed minimum site area would not be achieved.

16 In my opinion, the applicant's construction should not be accepted. In my opinion, "floor area" in cl 28(2) does not mean "floor space" as defined in cl 3(1) and the composite phrase "floor area of each dwelling" bears a meaning which requires the contentious elements to be excluded. My reasons are as follows.

17 First, the phrase "floor area", used in cl 28(2) and its Table, is not a defined expression in the GPSO. In contrast, the expression "floor space" is used when calculating "floor space ratio". Both those expressions are defined in cl 3(1) and have work to do because both are used in clauses 29B(2), 29C(2) and 49DI(2) - which are irrelevant for present purposes - but not in cl 28(2) or its Table. This suggests that "floor space" (defined) and "floor area" (undefined) are not synonyms.

18 Secondly, this is reinforced by contrasting cl 28 as a whole with the definition of "floor space" as a whole. Clause 28 requires determination of the "floor area" of "each dwelling to be erected". In contrast, the definition of "floor space" requires consideration of "a building or work". The term "floor area" in cl 28 evidently does not encompass all features of a building, but only those which may be described as a dwelling.

19 Thirdly, close analysis of the words "floor" and "dwelling" in the composite phrase "floor area of a dwelling" in the Table to cl 28, also support the conclusion that all the contentious elements should be excluded when measuring the floor area of a dwelling. The word "floor" is defined in cl 3(1): 'floor' means the space within a building which is situated between one floor level and the floor level next above, or if there is no floor level above, the ceiling or roof above. This definition of "floor" is not relevant because it is concerned with the number of levels of a building and the vertical spaces between them. That is not the meaning of "floor" in cl 28(2) which, in my view, is the horizontal surface under foot in a dwelling. In this sense, the dictionary definitions of "floor" relevantly include: "the layer of boards, brick, stone, etc in an apartment, on which people tread; the under surface of the interior of a room. Hence, any analogous surface": Shorter Oxford English Dictionary; "that part of a room or the like which forms its lower enclosing surface, and upon which one walks": Macquarie Dictionary (3rd. ed).

20 The word "dwelling" appears in cl 28(2) and its Table and is defined in cl 3(1) as "a room or number of rooms occupied or used, or so constructed or adapted as to be capable of being occupied or used, as a separate domicile". The word "room" is not defined in the GPSO. Its relevant dictionary meaning is "an interior portion of a building divided off by walls or partitions; esp a chamber or apartment in a dwelling house": Shorter Oxford English Dictionary; "a portion of space within a building or other structure, separated by walls or partitions from other parts: a dining room; (plural) lodgings or quarters, as in a house or building": Macquarie Dictionary (3rd ed.).

21 Although uninhabitable voids, garages, bin storage areas, open balconies, external steps, wall thicknesses and the like are ancillary to, or occur in connection with, a dwelling, they are not "rooms". Consequently, in my opinion, they do not contribute to the floor area of a room, and hence do not contribute to the "floor area of each dwelling" referred to in the Table to cl 28(2), which must be measured on this basis.

22 Fourthly, the construction based upon this textual analysis derives some support from a purposive construction of s 28(2) and its Table. A purposive approach to statutory construction now prevails, although in most cases the grammatical meaning of a provision will give effect to the purpose of the legislation: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 384 [78]; Port Stephens Council v Chan Industrial Pty Ltd (2005) 141 LGERA 226 at 230 [14] (NSWCA) citing Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404 (NSWCA) at 423 per McHugh JA; cf s 25(3) EPA Act. The purposive approach is subject to the qualification that no legislation pursues its purposes at all costs. It frustrates rather than effectuates legislative intent simplistically to assume that whatever furthers the statute's primary objective must be the law: see Spigelman CJ (dissenting) in Victims Compensation Fund v Brown (2002) 54 NSWLR 668 at 671-672 [9] (his Honour's dissent and reasons were upheld on appeal by the High Court (2003) 77 ALJR 1797). I accept the respondents' submission that the apparent purpose of the controls on floor areas of dwellings within residential flat buildings and minimum site areas under cl 28 of the GPSO is to provide a larger area of land for larger dwellings, because larger dwellings are likely to have a greater need for site usage such as landscaping and recreation areas, parking and pedestrian circulation, garbage disposal facilities, visitor parking and the like. The need for a larger site area for larger dwellings is driven by the likely levels of occupancy of dwellings, typically related to the number of inhabitants per dwelling, which in turn is closely related to the number of rooms, especially bedrooms.

23 The applicant placed reliance on a letter on the council's file by a council planner (Emily Anderson) who was initially involved in the development approval process, to the effect that council had calculated the units as being greater than 110 square metres. That person was not called as a witness in the case and her imprecise note cannot prevail over the joint report of Mr Smith and Mr Dobbs recording the measurements to which I have referred earlier.

24 On the construction which I have adopted, the contentious elements to which Mr Smith and Mr Dobbs directed their attention must be excluded when calculating the floor area of each dwelling. It follows, on their agreed measurements, that the floor area of each dwelling is less than 110 square metres and that the minimum site area prescribed by cl 28(2) of the GPSO was achieved.

25 The applicant's first claim therefore fails. Second Claim: cl 10(4) of the GPSO and Unreasonableness 26 The applicant's second claim is that the council failed to take into consideration cl 10(4) of the GPSO, with respect to the character of the development site and the surrounding area, and provisions of the Gosford Medium Density Residential Development Control Plan No 100 (DCP 100), such that its decision was unreasonable. DCP 100 is not an environmental planning instrument, as defined in the EPA Act s 4, and, accordingly, it was not mandatory under s 79C(1)(a)(i) but was mandatory under (iii) for the council to consider it. Clause 10(4) provided: The Council must not grant consent for development unless it has taken into consideration the character of the development site and the surrounding area, where, for the purpose of this provision, character means the qualities that distinguish each area and the individual properties located within that area.

27 Unreasonableness in the administrative law sense means "manifest" unreasonableness which is often eponymously referred to as "Wednesbury" unreasonableness after Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223. There Lord Greene MR said at 233-234: The court is entitled to investigate the… authority with a view to seeing whether they have taken into account matters which they ought not to take into account, or, conversely, have refused to take into account or neglected to take into account matters which they ought to take into account. Once that question is answered in favour of the… authority, it may be still possible to say that, although the… authority have kept within the four corners of the matters which they ought to consider, they have nevertheless come to a conclusion so unreasonable that no reasonable authority could ever have come to it. In such a case, again, I think the court can interfere. The power of the court to interfere in each case is not as an appellate authority to override a decision of the… authority, but as a judicial authority which is concerned, and concerned only, to see whether the… authority have contravened the law by acting in excess of the power which parliament has confided in them.

28 In Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] 162 CLR 24 at 41, Mason J, with whom Dawson J agreed, said: … in some circumstances a court may set aside an administrative decision which has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to a relevant factor of no great importance. The preferred ground on which this is done, however, is not the failure to take into account relevant considerations or the taking into account of irrelevant considerations, but that the decision is 'manifestly unreasonable'. This ground of review was considered by Lord Greene MR in Wednesbury Corporation [1948] 1 KB, pp 230, 233-234, in which his Lordship said that it would only be made out if it were shown that the decision was so unreasonable that no reasonable person could have come to it. This ground is now expressed in ss 5(2)(g) and 6(2)(g) of the Administrative Decisions (Judicial Review) Act 1977 (Cth). This test has been embraced in both Australia and England… In the context of administrative law, a court should proceed with caution when reviewing an administrative decision on the ground that it does not give proper weight to relevant factors, lest it exceed its supervisory role by reviewing the decision on its merits. The last sentence was quoted in Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at 627 [44] by Gleeson CJ and McHugh J.

29 The test of manifest (Wednesbury) unreasonableness has been stated in various ways. In Bromley London Borough Council v Greater London Council [1983] 1 AC 768 at 821, Lord Diplock said that the test was whether the decision: "looked at objectively, [was] so devoid of any plausible justification that no reasonable body or persons could have reached [it]". In Council of Civil Service Unions v Minister for the Civil Service [1985] 1 AC 374 at 410, Lord Diplock said that the decision must be "so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it". It has been said that "The test is stringent… The decision must amount to an abuse of power (Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 36) or be so devoid of plausible justification that no reasonable person could have taken that course (Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 290)": Weal v Bathurst City Council (2000) 111 LGERA 181 (NSWCA) at 188 [27]; Wyong Shire Council v MCC Energy Pty Ltd (2005) 139 LGERA 296 (NSWCA) at 312 [79]. In Woolworths Limited v Pallas Newco Pty Limited (2004) 61 NSWLR 707 at 725 [91], Spigelman CJ (with whom Mason P agreed) said that the test was whether a decision "was so plainly incorrect as to satisfy the stringent requirements of the Wednesbury unreasonableness test". In Murrumbidgee Groundwater Preservation Association Inc v Minister for Natural Resources (2005) 138 LGERA 11 at 45 [129], Spigelman CJ (with whom Beazley and Tobias JJA agreed) said: "Perhaps the most appropriate formulation is whether the decision is 'illogical, irrational or lacking a basis in findings or inferences of fact supported on logical grounds': Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165 at [52] and [37], [173]; see also Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992 at [38]'. The formulation in Murrumbidgee was quoted in Westfield Management Limited v Perpetual Trustee Company Limited [2006] NSWCA 245 at [71] by Tobias JA. In Andary v Minister for Immigration and Multicultural Affairs [2003] FCAFC 211 at [10], the Full Court of the Federal Court thought there was a great deal of wisdom and practicality Lord Cooke of Thorndon's observations in R v Chief Constable of Sussex, Ex parte International Trader's Ferry Ltd [1998] 3 WLR 1260. His Lordship said in that case at 1228-1289: It seems to me unfortunate that Wednesbury and some Wednesbury phrases have become established incantations in the Courts of United Kingdom and beyond. Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223, an apparently briefly-considered case, might well not be decided the same way today; and the judgment of Lord Greene M.R. twice uses (at pp 230 and 234) the tautologous formula ' so unreasonable that no reasonable authority could ever have come to it '. Yet judges are entirely accustomed to respecting the proper scope of administrative discretions. In my respectful opinion they do not need to be warned off the course by admonitory circumlocutions. When, in Secretary of State for Eduction and Science v Tameside Metropolitan Borough Council [1997] AC 1014, the precise meaning of ' unreasonably ' in an administrative context was crucial to the decision, the five speeches in the House of Lords, the three judgments in the Court of Appeal and the two judgments in the Divisional Court all succeeded in avoiding needless complexity. The simple test used throughout was whether the decision in question was one which a reasonable authority could reach. The converse was described by Lord Diplock, at p 1064 as ' conduct which no sensible authority acting with due appreciation of its responsibilities would have decided to adopt '. These unexaggerated criteria give the administrator ample and rightful rein, consistently with the constitutional separation of powers.

30 In Norbis v Norbis (1986) 161 CLR 513 at 541, Brennan J compared the appellate review of a judicial discretion with the review of an administrative discretion and concluded that: 'it is harder to be satisfied that an administrative body has acted unreasonably, particularly when the administrative discretion is wide in its scope or is affected by policies of which the Court has no experience.'

31 There is a distinction between a decision which the court considers is unreasonable, and a decision which the court considers is so unreasonable that no reasonable body could have come to it. The latter requires 'something overwhelming': Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at 627 [44] per Gleeson CJ and McHugh J, citing Lord Greene MR in Wednesbury (above) at 230. I agree with Rares J in Tran v Minister for Immigration & Multicultural Affairs [2006] FCA 1229 at [27] - [29] that there is a spectrum of unreasonableness and 'that between its extreme ends are many categories of decision with which courts might not agree or which they could regard as unreasonable but which a reasonable person could have made. The latter category of decision is immunised from judicial review because the legislature has confided to the decision-maker the task of forming the opinion or arriving at the state of satisfaction on the materials before him or her… Administrative decision-making, of its nature, involves the formation of value judgements… Value judgements are ones in respect of which there is room for reasonable differences of opinion, no particular opinion being uniquely right: cf Norbis v Norbis (1986) 161 CLR 513 at 518 per Mason and Deane JJ; 540 - 541 per Brennan J; see too at 535 per Wilson and Dawson JJ'.

32 In the present case, the question is not whether the Court disagrees with the council's decision or regards it as unreasonable. If it is a decision which a reasonable council could have made, it is immunised from judicial review on the Wednesbury unreasonableness ground because Parliament has given the council the task of formulating a judgement as to whether development consent should be granted.

33 The applicant's submissions did not address the Wednesbury test of unreasonableness. The applicant submitted that the development consent was unreasonable because of a failure to meet nine out of ten conditions in DCP 100. This submission was said to be based on an affidavit of an architect, Mr P Pyman. However, that affidavit, which was attached to the applicant's pleading, was not admitted into evidence. Otherwise, there was no significant analysis of the material before the council so as to demonstrate that its development consent was unreasonable in the Wednesbury sense. Consequently, in my opinion, the applicant has, for that reason alone, failed to discharge its onus of proof in relation to this claim.

34 If it is necessary to go further, I would add that the evidence indicates that the matters of concern to the applicant were considered by the council when reaching its decision. Those matters appear to be residential character, access of habitable rooms to solar access, principles of ecologically sustainable development, traffic movements, loss of privacy and views, and open space. Consideration of these matters is evident from the evidence of the material before the council when it made its decision. That material included a photographic brief. The councillors attended an on-site inspection in February 2005, to which the applicant's representative and interested local residents were invited. Height poles were erected to show the envelope of the proposed building. The applicant submitted that the on-site inspection did not allow enough time for elderly pensioners living next door in the Department of Housing building to get their concerns across, and that the poles were not certified by a surveyor and may not have fully reflected the actual outline of the development. The first of these two points is not supported by the evidence, and the second is conjectural. The council records in Exhibit 2R1 behind the following tabs evidence council's consideration of the following matters: (a) Objectives of 2(b) zone and objectives of Local Government Act 1993 pertaining to Ecologically Sustainable Development: tab 1 clause 10(3) Gosford PSO; tab 8 report to council pp 4 to 5, 7 to 9; tab 4 plans; tab 7 report to council; tabs 11 and 12 on-site view by councillors and objectors. (b) Character of the development and the surrounding area: tab 1 clause 10(4) Gosford PSO; tab 4 plans; tab 3 Statement of Environmental Effects especially [1] to [7], [12] to [14]; tab 7 report to council; tab 8 report to council especially pp 4, 7 to 9; tabs 11 and 12 on-site view by councillors and objectors. (c) Solar Access: tab 3 Statement of Environmental Effects especially [3.3], [4], [6] and [7]; tab 7 report to council especially pp 2 to 4 and photos; tab 8 report to council p 9; tabs 11 and 12 on-site view by councillors and objectors; tab 16 letter M. Alt (objector) 22 October 2004 p 2. (d) Vehicular movements on street/driveway, parking and noise: tab 3 Statement of Environmental Effects especially p 10; tab 4 plans; tab 7 p 8 report to council; tab 13 plan of manoeuvres in driveway; tab 16 letter M. Alt (objector) 22 October 2004 and form letters from objectors. (e) Privacy: tab 3 pp 2-4; tab 5 p 2 para [1 (d)], p 3; tab 7 report to council photos; tab 8 report to council pp 5-6; tabs 11 and 12 on-site view; tab 16 form letters from objectors. (f) Open Space: tab 3 pp 2-6; tab 4 plans; tab 5 submissions (SEPP-1); tab 7 report to council pp 1-3, 7; tabs 11 and 12 on-site view; tab 16 letter M. Alt (objector) 22 October 2004 p2; tab 17 submissions/flyer.

35 In my opinion, the applicant has not discharged its onus of proving its second claim. Consequently, the applicant's second claim also fails.

CONCLUSION 36 The applicant has been unsuccessful in the proceedings. I make the following orders: 1. the proceedings are dismissed. 2. costs are reserved. Any application for costs is to be made returnable before me within two weeks. 3. the exhibits may 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.

CITATION : Save Our Street Incorporated v Settree [2006] NSWLEC 570

Andary v Minister for Immigration and Multicultural Affairs [2003] FCAFC 211; Bromley London Borough Council v Greater London Council [1983] 1 AC 768; Council of Civil Service Unions v Minister for the Civil Service [1985] 1 AC 374; Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404; Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] 162 CLR 24; Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; Minister for Immigration v SGLB (2004) 207 ALR 12; Murrumbidgee Groundwater Preservation Association Inc v Minister for Natural Resources (2005) 138 LGERA 11; Norbis v Norbis (1986) 161 CLR 513; CASES CITED: Port Stephens Council v Chan Industrial Pty Ltd (2005) 141 LGERA 226; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223; R v Chief Constable of Sussex; Ex parte International Trader's Ferry Ltd [1998] 3 WLR 1260; Tran v Minister for Immigration and Multicultural Affairs [2006] FCA 1229; Victims Compensation Fund v Brown (2002) 54 NSWLR 668; Victims Compensation Fund v Brown (2003) 77 ALJR 1797; Weal v Bathurst City Council (2000) 111 LGERA 181; Westfield Management Limited v Perpetual Trustee Company Limited [2006] NSWCA 245; Woolworths Limited v Pallas Newco Pty Limited (2004) 61 NSWLR 707; Wyong Shire Council v MCC Energy Pty Ltd (2005) 139 LGERA 296

(2005) 141 LGERA 226

(2000) 111 LGERA 181

(2005) 139 LGERA 296

At a glance

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Cases Cited (21)