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[2000] NSWLEC 135
Land and Environment Court (NSW)
2000-06-29
Lloyd J
Original judgment source is linked above.
a) The First Respondent failed to make an assessment of the visual impact when viewed from Sydney Harbour of the design of the proposed development, (as required by clause 19(2)(a) of the LEP);
b) The First Respondent failed to make an assessment of the impact of the proposed development on the natural landform and topography (as required by clause 19(2)(b) of the LEP);
c) The First Respondent failed to consider and be of the opinion that the development was consistent with objective (h)(ii) in clause 2(2) of the LEP (as required by clause 8(5) of the LEP), namely the objective in relation to the area's foreshores and the harbour foreshore scenic protection area to encourage development which, through its form, scale, materials and design is compatible with the natural and environmentally acceptable built landform of the foreshore areas as viewed from the water;
d) The First Respondent failed to consider and be of the opinion that the development was consistent with objective (h)(iv) in clause 2(2) of the LEP (as required by clause 8(5) of the LEP), namely the objective in relation to the area's foreshores and the harbour foreshore scenic protection area to consider the impact of the proposed development on the views of Sydney Harbour enjoyed by existing residents and promote the practice of view sharing. 5. The respondents deny the applicants' allegations. Moreover, the respondents rely upon State Environmental Planning Policy No. 53 - Metropolitan Residential Development ("the Policy"), which applied to the subject land when the development application was determined. The Policy allows residential dual occupancy on land to which it applies. The Policy prevails over any other environmental planning instrument to the extent of any inconsistency therewith (clause 5(2)). The respondents assert that the provisions of the LEP described in paragraph 5 (a) to (d) above, upon which the applicants rely, are inconsistent with the Policy and thus do not apply to development being residential dual occupancy.
(2) The Council shall not grant consent to an application for development on land referred to in subclause (1) unless it has made an assessment of -
(a) the visual impact when viewed from Sydney Harbour of the design of the proposed development, including the colours, textures, styles and types of materials to be used and the type and form of any roof; and
(b) the impact of the proposed development on the natural landform and topography. 8. Clause 8 contains the development control tables for the various zones. Item 6 in the development control table for Zone No. 2(a) is headed " Development which is prohibited ". Item 6 then states: " any development other than development included in Item 4 or 5 ". The parties agree that residential dual occupancy falls within Item 6 and is thus prohibited under the development control table. Item 7 in the development control table for the same zone is headed " Related provisions ". Item 7 then continues:
Parts 3 and 4 of, and Schedules 2 and 3 to, this plan must be read in conjunction with this development control table as they also affect the nature of development which can be carried out . (The only relevant clause in Parts 3 and 4 of the LEP is clause 19, which I have set out above).
(4) The development control table for each zone must be read subject to the special provisions and heritage provisions in Parts 3 and 4 of this plan, respectively. In the event of an inconsistency between a provision for a development control table relating to a zone and a special provision or a heritage provision in Part 3 and 4 of this plan, the special provision or heritage provision shall prevail.
(5) The Council shall not grant consent to the carrying out of development on land to which this plan applies unless the Council is of the opinion that the carrying out of the development is consistent with such objectives of this plan and of the zone within which the development is proposed to be carried out as apply to that development. 10. Subclause 8(5) thus directs attention to the objectives of the LEP and of the relevant zone. As I understand the applicants contention, no reliance was placed by them on the objectives of the zone, because residential dual occupancy is prohibited. Such development only becomes permissible because of the application of the Policy. The applicants rely, however, on two of the objectives of the LEP in clause 2 (2) (h):
(h) in relation to the area's foreshores and the harbour foreshore scenic protection area - ... (ii) to encourage development which, through its form, scale, materials and design is compatible with the natural and environmetally acceptable built landform of the foreshore areas as viewed from the water; ... (iv) to consider the impact of development on the views of Sydney Harbour enjoyed by existing residents and promote the practice of view sharing; ...
If this Policy is inconsistent with any other environmental planning instrument made before or after this Policy, this Policy prevails to the extent of the inconsistency except as provided by subclause (3). (Subclause (3) relates to the demolition of the heritage item and is thus not relevant to the present case).
a) This Part applies to all land to which this Policy applies that is within a residential zone under another environmental planning instrument .
The subject property, No.897 New South head Road, Rose Bay, is land to which the Policy applies and is within a residential zone under another environmental planning instrument (namely the LEP).
This Part allows development that results in two dwellings being located on the one allotment of land if another environmental planing instrument permits a dwelling-house to be erected on the allotment and the development is carried out in accordance with this Part and Part 5. 14. Clauses 19 and 20 (within Part 3) prescribe certain development standards and car parking requirements which are not presently relevant. Part 5 (clauses 27 to 32) is headed " Design requirements ". Clause 31 provides that consent must not be granted (to development that is allowed to be carried out with development consent by the Policy) unless the consent authority has taken into account a site analysis prepared in accordance with this clause. Subclause 31(2), provides (inter alia) that a site analysis must contain information, where appropriate, about the site and its surrounds as described in Schedule 5.
The Council's assessment and determination of the development application
Clause 19 of Woollahra Local Environmental Plan 1995 indicates this land as being located within the Harbour Scenic Protection Area. The following criteria are of relevance in relation to this application:- · the visual impacts of the buildings, when viewed from Sydney Harbour, in relation to the design of the proposed development, including the colours, textures, styles and types of materials to be used and the types of, and form, of any roof; and · the impact of the proposed development of the natural landform and topography.
It is considered that this development would be harmonious with the scale and form of buildings located in the vicinity and would not be intrusive. From the Harbour, it would be difficult to discern these buildings from any others in the locality. 17. Under the heading " Sydney Regional Environmental Plan No. 23 - Sydney and Middle Harbours " the statement states (inter alia):
· The appearance of the development from the waterways and the foreshores
The development would be of a scale and height similar to and sometimes less than that of surrounding development. Being well set back from the new South Head Road, on a sweeping bend of the road and being set back behind medium sized trees, the buildings would not be visually intrusive elements within the streetscape as viewed from the harbour or its foreshores. 18. Under the heading " Topography " the statement states (inter alia):
spot levels are indicated on the plans and on the submitted survey. 19. Under the heading " Views to and from the Site " the statement states:
Existing views to the Harbour and City would be largely unaffected by the proposed building. Properties to the side and rear would still maintain their predominant views and the proposal would satisfy Council's view sharing principle. From the site, panoramic views of the Harbour and City are obtained from the high elevation above New South Head Road. The view of the site from the street is limited due to medium sized trees shielding the site from the lower level of New South Head Road. Accordingly, the development is not likely to be highly visible from surrounding public places. 20. Under the heading " The surrounds " the statement notes (inter alia) that neighbouring buildings are located as shown on the plans and at heights as indicated on elevations. Under the same heading the following appears:
Various levels upon the subject and adjoining sites are shown on the plans.
Views from neighbouring properties would be largely unaffected by the proposal and maintaining visibility of the predominant icons would be achieved (i.e. the water, Harbour Bridge, Opera House etc)
Architectural Character No predominantly architectural style exists in the area. The form and scale of nearby properties is generally in excess of what is proposed. 21. Under the heading " Wall Height" the statement contains the following (inter alia):
The maximum wall height above existing ground level is in the vicinity of 7.2 m, although slightly higher when measured to the new ground level. This is a result of the proposed excavation. Notwithstanding this, it is our submission that the proposed wall heights would satisfy Council's requirements in respect of views, solar access, privacy and compatibility with the scale and built-form of surrounding development.
The development application was notified by the council to the owners of a number of nearby and adjoining properties on 29 September 1998 and a number of objections were received. On 9 December 1998 the council notified the same properties' owners of the lodgment of revised plans. Further objections were received, including a detailed objection of behalf of the present applicants, Mr and Mrs Springer, prepared by Mr G Karavanas of Gary Shiels and Associates Pty Limited, planning consultants. That objection refers to loss views from the applicants' property, loss of privacy and the apparent failure of the proposal to comply with the development standards contained in the Policy and the LEP; and failure to comply with the council's residential development control plan. The objection contains an attachment, being photographs taken from the applicants' property showing the likely loss of Harbour views.
The development application was the subject of a lengthy and detailed report to the council development control committee on 29 June 1999 by its assessment officer. The report refers (inter alia) to the kind of development in the locality; the design of the proposal in relation to existing buildings and the natural environment; its physical relation to and impact upon adjacent development (views, privacy, overshadowing etc); the nature of objections received; and, the applicability of the Policy. The report contains a detailed assessment of: the compatibility of the development with the height and bulk of adjacent development; the impact on views from adjacent properties; and, the effect of the proposal on the existing natural landform. In particular, the report notes that the design in the harbour-facing elevation of the proposal " helps to reduce its visual height ... The proposed development represents a contemporary architectural form that is consistent with the scale and form of adjoining, more contemporary buildings ." The report contains a discussion, in particular, of the concerns of objectors. The report concludes with a recommendation for approval of the application subject to conditions.
It seems that the council's development control committee referred the application to a site inspection committee. It then seems that the site inspection committee made an inspection on 23 June 1999. Only three of the members of the council, however, attended on the inspection, together with a number of the council's staff.
By a further letter dated 25 June 1999, Mr Karavanas of Gary Shiels and Associates Pty Limited made a further objection on behalf of the present applicants as a consequence of the inspection committee meeting on 23 June 1999. The further letter of objection refers to the height of the proposed building compared with the building to be demolished, the effect on view of the applicants' property and the need for a view analysis. The letter includes photographs taken from the applicants' property illustrating the points made in the letter.
It seems from the council's file which was tendered in evidence that the site inspection committee made a further inspection on 28 June 1999 consequent upon the receipt of the further objection made by Mr Karavanas referred to in paragraph 25 above. The committee resolved to defer consideration of the development application to the next appropriate development control committee meeting for a further report from the council's staff which addresses the issues raised in the letter of 25 June 1999 and which in addition provides a detailed view analysis of the proposal in relation to the adjoining property.
In July 1999 the project architect prepared and submitted to the council a view analysis as requested by the council. The view analysis contains an examination of the impact of the proposed development on views from three adjourning properties, including that of the applicants. The council's development control committee met again on 2 August 1999, when it considered a report which summarised the content of the letter of 25 June 1999 and which contains a discussion of the view analysis. The committee was addressed by a solicitor on behalf of the applicants and another objector, Mr J Cole. The committee resolved to grant development consent to the development application subject to 75 conditions. On the same day the council adopted the recommendations of the development control committee and thereafter it issued a notice of determination.
It is the practice of the council to have its files the subject of any development application to be available at meetings of its development control committee or of any other committee. The files are made available for inspection by members of the council or its staff during the consideration of development applications or other relevant matters.
Mr C W McEwen, who appears for the applicants, refers to the absence of any reference in the reports which were before the council to either subclause 8(5) or clause 19 of the LEP. There is no reference to the particular objectives referred to in subclause 8(5) and there is no reference to the obligation of the council in the terms required by clause 19. It follows, in his submission, that the council could not have formed the opinion required by subclause 8(5) that the proposed development is consistent with the objectives there stated. Neither can it be said that the council made an assessment of the matters described in the subclause 19(2) and which operates as a precondition to any merit assessments. The inference may be drawn that the council did not turn its mind to these matters. (He referred to Currey v Sutherland Shire Council (1998) 100 LGERA 365, Franklins Limited v Penrith Council [1999] NSWCA 134 and Hortis v Manly Council (1999) 104 LGERA 43.) As to the inspection (referred to in paragraph 24 above ) only a minority of council members (three) attended and they could not have comprised the majority of those persons making the decision. As to the Policy, there is no inconsistency between it and those provisions of the LEP upon which the applicants rely.
Mr P R Rigg, who appears for the council, made the following submissions:
a) Item 7 in the development control table for Zone No. 2(a) states that Parts 3 and 4 of the LEP are provisions which must be read in conjunction with the table. Since residential dual occupancy is prohibited development, it cannot satisfy either the objectives of the instrument or of the zone, or clause 19 (which is within Part 3). Those provisions only apply if there is jurisdiction under the instrument to grant a consent for that which is proposed. The only component of the development to which the LEP applies is the subdivision component and not the dual occupancy;
b) If, as Mr McEwen submits, clause 19 operates as a precondition to jurisdiction, then that clause must be inconsistent with the Policy, being a provision in an environmental planning instrument which takes away the jurisdiction of the consent authority to grant consent to development authorised by the Policy;
c) Mr Rigg's submission, as I understand it, reformulated by me, is that clause 17 of the Policy allows dual occupancy development if (i) another environmental planning instrument permits a dwelling house to be erected on that allotment and (ii) the development is carried out in accordance with Parts 3 and 5 of the Policy; and if a provision of another environmental planning instrument derogates from those provisions it is inconsistent therewith, so that the Policy prevails;
d) The Policy sets its own design requirements and assessment criteria: and a provision in the LEP which has the effect of prohibiting or preventing the carrying out of development authorised by the Policy is caught by the inconsistency provision. The inconsistent provisions in the LEP are clauses 8(5) - including by reference clause 2(2) - and particularly any preconditions to jurisdiction provision such as clause 19. (He referred to Coffs Harbour Environment Centre Inc v the Minister (1994) 84 LGERA 324.);
e) Alternatively, subclause 8(5) of the LEP applies every time the council considers a development application, so that although not expressly cited in the officers' reports, it would be a provision of which the council members would have been well aware;
f) As to clause 19 of the LEP, there was no need for the members of the council to go out onto the Harbour to make an assessment of the visual impact. The harbour foreshore scenic protection area covers large areas of Woollahra and the members of the council would have local knowledge of the site and its relationship to the Harbour;
g) The two letters of objection written by Mr Karavanas and which were before the council referred to the very matters which the applicants in these proceedings assert where not considered by the council, namely loss of view (illustrated by accompanying photographs), the height of the proposed buildings and the need for a view analysis (which was subsequently furnished). In this respect the development site was inspected by the inspection committee, including staff members of the council who prepared the reports on the development application. The report to the meeting of 2 August 1999 included a locality map, the previous report to the meeting of 21 June 1999, the second letter from Mr Karavanas dated 25 June 1999, plans and elevations, and a plan showing the position of photographs in the view analysis. The report to the meeting of 21 June 1999 extensively canvassed the issues of height, bulk, appearance, impact on views, consistency with the objectives of the 2(a) zone and the concerns of objectors.
Mr J A Ayling, who appears for the second and third respondents (the applicant for development consent and the owner of the land respectively) generally supports Mr Rigg's submissions. As to clause 8(5) of the LEP, Mr Ayling submits that the location of that clause in the instrument requires that it be read down so that its operation is limited to conforming development. As I understand the submission, where, as here, there is a non-conforming development supported by entirely different environmental planning instrument, then clause 8 cannot apply to it.
In any event, it is reasonable, in Mr Ayling's submissions, to expect that the members of the council would have been well aware of the requirements of clause 8(5) of the LEP, being considerations which would arise on every development application. Similarly, the harbour foreshore scenic protection area covers a vast area of Woollahra and the requirements of clause 19 would be equally well-known. Mr Ayling submits that the site of the development is one which the members of the council could not fail to know, being on New South Head Road - a major arterial road - on the well- known " Heartbreak Hill " and opposite Kambala School, so that they would be well aware of the extent of its exposure to the Harbour and be able from their general knowledge to have formed a view about the appearance of the development from the water. Moreover, the statement of environmental effects, which was at least constructively and probably actually available to the council, canvasses the issue.
I turn first to the authorities upon which Mr McEwen relies . Currey v Sutherland Shire Council is a case about a development application for the subdivision of land to which a foreshore building line applied. The local environmental plan which imposed the foreshore building line in that case included an unusual provision, subclause 19(5) which contained a prohibition on development on land having a foreshore building line unless the council was satisfied that any building or work below the line will be removed; but subclause 19(6) provided that subclause (5) did not apply if the council was satisfied that the removal of the building or work (a) would be inconsistent with the objectives of the clause, or (b) was not necessary to achieve those objectives, or (c) was unreasonable or unnecessary having regard to the provisions of any relevant development control plan. In that case, neither the development application nor the council officer's report furnished to the council made any reference to either subclause.
Stein JA held (at 372) that satisfaction with the criteria in clause 19(5) and (6) came before the weighing of the merit consideration. (His Honour referred in this context to Clifford v Wyong Shire Council (1996) 89 LGERA 240). Stein JA accepted the principle that the collegiate body of the council may be aware from its general knowledge of all the relevant considerations. (His Honour referred in this context to the judgment of Moffitt P in Parramatta City Council v Hale (1992) 47 LGERA 329 at 346). Stein JA also accepted the principal that each member of a council may be assumed to bring individual expertise and local knowledge to the consideration of the application (citing the judgment of Hemmings J in Somerville v Dalby (1990) 69 LGERA 422). In accepting these principals Stein JA said (at 373), however, that while it may be reasonable to assume that councillors will have a general knowledge of their principal planning instrument, there is no reason to assume that such knowledge extended to the detail of a provision such as clause 19 in that case or the processes to be traversed in order to apply clauses 19(5) and (6). In his Honour's opinion, the part which a councillor's inferred knowledge could properly play in that case was small. Stein JA then turned his attention to the nature of the provision in question (at 374):
It is important to note (as I mentioned before) that the consideration of cl 19(5), and its exception in cl 19(6), comes before any merit considerations under s 90 are weighted: see Clifford v Wyong Shire Council (at 249, 251-252). Clause 19(5) is a prohibition on certain development within the foreshore building line unless the council is satisfied that the offending building will be removed. The exception in clause 19(6) requires council's satisfaction that the removal of the building would be inconsistent with the clause objectives and was unnecessary to achieve those objectives, or is unreasonable or unnecessary having regard to the provisions of any relevant development control plan. This consideration requires some positive attention by the council. 35. Stein JA (with whom Mason P and Handley JA agreed) held (at 375) that in the absence of anything in the officer's report or its appendices to alert the council to the need to address clause 19(5) and (6) (in order to overcome the prohibition in clause 19(5)) before proceeding to assess the merits of the application, the inference should be drawn that the council failed to address the pre-condition in clause 19(5).
(2) Despite any other provisions of this Order, a person may, with the consent of the Council, carry out development for the purposes of a wholesale and retail warehouse on land to which this clause applies, but only if the Council is satisfied that not less than 60% of the goods sold from the land will be resold by retail after being removed from the land.
The clause has been redrafted by Parliamentary Counsel. The draft local environmental plan submitted by the council allowed " warehouse/retailing " on the land with the consent of the council. The definition of the " warehouse/retailing " contained a restriction that not less than 60% of sales be sold for resale. The evidence in the case was that there was no express reference to either clause 32(2) or to the 60% resale requirement in the council officer's report on the development application, in the consultant's report to the council on the application, or in any other documentary material in the case.
The key words in the sub-clause are "but only if the Council is satisfied that". It is clear that the Council had to be satisfied prior to the granting of consent to Campbells. It has to be satisfied as a pre-condition to approval, that Campbells' operations from the premises comprised a wholesale component of not less than 60%. Council had to address itself to this criterion in order to form the requisite opinion and before embarking an a consideration of the 'merits' under s 90 of the environmental Planning and Assessment Act 1979, see Clifford v Wyong Shire council 91996) 89 LGERA 240 and Currey v Sutherland Shire Council (1998) 100 LGERA 365 at 372 and 374. 38. Stein JA noted that clause 32(2) as redrafted by Parliamentary Counsel, unlike the draft submitted by the council, operated as a pre-condition to the jurisdiction to consider the merits of the development application and operated as a prohibition unless the council formed the requisite opinion. Under the draft local environmental plan submitted by a council, the clause did not require the council to be satisfied prior to granting consent that an applicant would comply: it was not a pre-condition which must be satisfied before the council could proceed to consider the application.
There is, of course, an issue raised by the respondents as to what general knowledge the councillors may have had and used in the decision-making. While no evidence was called on the issue, there are clearly cases where councillors go into a meeting carrying with them general or particular knowledge, pertinent to a development application, in addition to that which is contained in the documents before them. Undoubtedly councillors would have had some general pre-knowledge of the site, the development application and the rezoning process, including the spot rezoning exercise. However, it is impossible to infer that they had an understanding of the amendments made by Parliamentary Counsel, as they affected cl 32 of the LEP and Council's function under sub-clause (2). It is not possible to infer that they had pre-knowledge, taken to the Council meeting, of the need to be satisfied as to the 60% requirement as a pre-condition to consent. There is nothing in the documents that suggests any such specific knowledge. … Here local knowledge is irrelevant. What is needed is actual knowledge of the pre-condition of satisfaction to be held by Council. While it may be reasonable to presume, as I said in Currey, that councillors may have a general knowledge of their principal planning instrument and, given the history and the documents before Council, even general knowledge of the LEP as submitted to the Minister to make, there is no reason to infer knowledge and understanding of Council's role under cl 32(2) of the LEP 321, unless it was drawn to attention. 40. In the result the court declared the development consent granted by the council in that case to be invalid.
(3) Except as otherwise provided by this plan, the council shall not grant consent to the carrying out of development on land to which this plan applies unless the council is of the opinion that the carrying out of the development is consistent with the objectives of the zone within which the development is proposed to be carried out. 42. Clause 17 was as follows:
The council shall not grant consent to the carrying out of development unless it is satisfied that the development will not have a detrimental effect on the amenity of the Foreshore Scenic Protection Area. 43. After referring to the Currey , Clifford and Franklins cases, Sheahan J held that both clauses 10(3) and 17 contain pre-conditions that the council must form an opinion (clause 10) and satisfy itself (clause 17) of the matters described therein in order for the development to be permissible; and this must occur before consideration of the merits. Sheahan J went on find that because of the absence of any reference to either clause in any of the documents accompanying development application or in the council officer's report on the application, there was no real evidence that the council in determining to grant its approval satisfied itself of the pre-condition contained in those clauses.
In applying the above mentioned cases to the present case I make the following observations. In Currey the clause in question was not a standard or common clause of the kind which the collegiate body of the council would be aware from its general knowledge. Stein JA accepted the proposition that the members of the council would have a general knowledge of the council's principal planning instruments, but his Honour was not prepared to assume that such knowledge extended to the detail of the provision such as the clause in question. That is not the case here. In the present case the provisions of the LEP in question are general provisions of which the members of the council would be well aware. The council must consider clause 8(5) of the LEP on every development application. That is to say, every time the council considers any development application it must give consideration to the objectives of the LEP and of the zone within which the development is proposed to be carried out.
A similar comment may be made about clause 19 in the present case. Every development application on land within the harbour foreshore scenic protection area requires a consideration of clause 19 as a pre-condition to any determination of the merit considerations. The planning scheme map which was tendered in evidence shows that the harbour foreshore scenic protection area is vast. It includes land which is well removed from the foreshore. A large proportion of the development applications received by the council every year would be on land within this area; and many of those applications would be controversial and raise questions such as impact on views from other properties and views of the particular development. Neither clause 8(5) nor clause 19 of the LEP are of the kind considered by Stein JA in Currey.
Similarly, the clause in question in Franklins was not a common or usual provision with which the members of the council would be expected to be familiar. Moreover, the clause in question in that case had been changed by Parliamentary Counsel from the draft with had been submitted by the council. There was nothing in the evidence in that case to suggest that the change made by Parliamentary Counsel had been brought to the attention of the members of the council. The consideration which led Stein JA in that case to conclude that the council had not given consideration to the clause in question does not apply in the present case.
In Hortis , subclause 10(3), which I have set out in paragraph 41, required the council to look at the objectives of the zone within which the development was proposed to be carried out. The objectives of the zone would no doubt vary from zone to zone and it is reasonable to expect the councillors may need to be reminded of the objectives of any particular zone. In the present case, however, clause 8(5) directs attention to the objectives of the LEP as well as the objectives of the particular zone. The applicants in the present case make no complaint about failure to consider the objectives of the zone. This is understandable. The development is prohibited within Zone No. 2(a). It is only permissible by dint of the Policy. The only complaint of the applicants in relation to clause 8(5) is of an alleged failure to consider and be of the opinion that the development was consistent with those objectives of the LEP which they have identified. Unlike clause 10(3) in Hortis , the general objectives of the LEP in the present case are relevant considerations in every development application. As to clause 17 in Hortis (noted in paragraph 41 above) it is not known whether the foreshore scenic protection area in that case was as vast or extensive as the harbour foreshore scenic protection area in the present case and which leads me to an assumption that the members of the council would be aware from their general knowledge of the requirements of the clause.
In both Currey and Franklins, Stein JA accepted the principle that the members of the council may be assumed to have some general knowledge of the council's principal planning instrument. In an earlier case, Lakeside Plaza Pty Limited v Legal and General Properties No. 2 Limited (1992) 76 LGERA 60, his Honour said (at 65):
First, I think it must be accepted that the Council and its officers do not come to an application such as the present one devoid of any knowledge of the subject matter. They would be generally aware for example, of the material in other relevant applications, … and the environmental planning instruments and their history. 49. In the present case I adopt what was said by Pearlman J in a similar case to the present, Schroders Australia Property Management Limited v Shoalhaven City Council [1999] NSWLEC 251. In that case the clause in question was clause 9(3) of the City of Shoalhaven Local Environmental Plan 1995, which was similar to clause 8(5) of the LEP in the present case. Pearlman J said:
It was central to the case put on behalf of Schroders by Mr Austin QC that the principal to be applied is that, so that the council may fulfil its obligation to form an opinion on the relevant issue, the relevant question must be framed for the council's consideration. Authority for this proposition is said to be found in the decision of the Court of Appeal in Currey v Sutherland Shire Council and Ors (1998) 100 LGERA 365. However, I do not think, with respect, that the Court of Appeal's decision goes so far as to require an inference of failure to consider unless the relevant question was actually posed or framed. … Another relevant fact is the councillor's own actual or constructive knowledge (Lakeside Plaza v Legal and General at 65). There are three matters which support an inference that the councillors were aware of the consistency issue and of the need to form an opinion about it as a threshold determination. First, cl 9(3) of the LEP is a conventional type of clause. It has appeared in the LEP since the LEP's adoption in 1985 (although it was amended in a minor way by amendment No. 70 in 1993). It applies to all development in all zones under the LEP. The inference must be drawn that cl 9(3) had been applied by the council regularly and frequently. In this regard, cl 9(3) is quite different from the clause under consideration in Currey v Sutherland Shire Council, which was specific and detailed. Secondly, the consistency issue had been raised in the submissions leading up to the grant of development consent. … Councillors do not make decisions in a vacuum, and they bring to bear a knowledge of the issues which they acquire in the lead up to a final determination. (Lakeside Plaza v Legal and General at 65; Marnal Pty Ltd v Cessnock City Council (1989) 68 LGERA 135. … 50. In the present case I am not prepared to draw the inference that the council was unaware of its obligations as set out in clause 8(5). Those obligations require the council to be satisfied that the carrying out of the development is consistent with the objectives of the LEP and of the zone. The applicants have identified two objectives with which, they say, the council failed to consider and be of the opinion that the proposed development was consistent. The first objective of which the applicants complain is in clause 2(2)(h)(ii), which I have set out (in paragraph 10) above. It is "to encourage" certain kinds of development. This does not require any positive finding as to any matter of fact. It is a general statement of policy. In the present case the appearance of the harbour-facing elevation of the proposed development is described in the officer's report on the development application (noted in paragraph 23 above) and in the statement of environmental effects (noted in paragraphs 16 and 17 above). Whilst there is no express reference to the appearance of the development as viewed from the water in the officer's report on the development application, the members of the council possess both a general knowledge of the area and a specific knowledge of the site, as noted by Mr Ayling in his submission (summarised in paragraph 31 above). There is nothing to suggest that the members of the council would have any difficulty in visualising the appearance of the development as viewed from the water. I agree with Mr Ayling's submission that it would not be necessary for the members of the council to go out on a boat every time it considers a development application on land which can be viewed from the water. I adopt what was said by Hemming J in Somerville v Dalby (1990) 69 LGRA 422 at 429:
Nor is the consideration of the application by council or its individual members limited to that which occurs at a meeting or that contained in written reports. Each member of council may be assumed to bring individual expertise and local knowledge to the consideration of the application.
And again, a statement to similar effect is made by the same judge in Marnal Pty Limited v Cessnock City Council (1989) 68 LGRA 135 at 140:
Each member of the council brought to the debate individual expertise and local knowledge. 51. The other objective of which the applicants complain is in clause 2(2)(h)(iv) (also noted in paragraph 9 above). The evidence shows that the impact of the proposed development on the view of Sydney Harbour enjoyed by existing residents and the promoting of view sharing was examined by the council in detail. That consideration includes the documentary material which was before the council which refers to the very matters which the applicants in these proceedings assert were not considered. They include the references in the statement of environmental effects to which I have referred, the content of the two letters of objection written by Mr Karavanas on behalf of the applicants (as well as other letters of objections), a locality map, the plans and elevations, the view analysis and the two reports of 21 June 1999 and 2 August 1999. The development site was also inspected by an inspection committee including the council's staff responsible for the preparation of the reports on the development application. 52. It must be constantly borne in mind that proof of any invalidity of a development consent rests on the challenger. I am not satisfied that the applicants have discharged the onus of demonstrating that the council has failed to comply with its obligations under clause 8(5).
27 I reject this argument. Ms Chapman gave evidence that the council files were in her control, and were available (either in whole or part) in the council chambers at times when the proposed development was under consideration. Furthermore, the council files were available for inspection in her office at other times. The onus is upon Schroders to establish its ground of challenge. It must establish facts from which an appropriate inference can safely be drawn (Parramatta City Council v Hale at 345). I decline, however, to draw an inference adverse to the council in the absence of any facts other than that there was opportunity for the councillors to have access to the files. 55. I have referred (in paragraph 28) above to evidence that it is the general practice of the council to have the files which are the subject of any development application which comes before the development control committee or any other committee of the council available at that meeting; and that the files are delivered to the meeting in order to make them available for inspection by the councillors or staff during the consideration of development applications.
Upon that basis, there will an inconsistency if, in the provisions of one environmental planning instrument, there is "want of consistency or congruity"; "lack of accordance or harmony" or "incompatibility, contrariety, or opposition" with another environmental planning instrument. 58. In the same case Mahoney JA said (at 345):
Two instruments may be inconsistent if the general principles or general provisions provided by each are different. They may be inconsistent if the later instrument enacts a provision which is a qualification of or an exception to a general principal stated in the earlier instrument. 59. If, as Mr McEwen submits, clause 19 in the present case operates as a prohibition which comes before any assessment of the merits of a development application, there is then an apparent want of consistency or congruity with permissibility under the Policy, a lack of accordance or harmony therewith, or an incompatibility, contrariety or opposition to the Policy; and particularly in the present case clause 19 is "a qualification of or an exception to" permissibility under the Policy. There is thus an inconsistency with the Policy. Pursuant to clause 5(2) of the Policy, the Policy prevails.
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.
And again, a statement to similar effect is made by the same judge in Marnal Pty Limited v Cessnock City Council (1989) 68 LGRA 135 at 140:
Each member of the council brought to the debate individual expertise and local knowledge.
51. The other objective of which the applicants complain is in clause 2(2)(h)(iv) (also noted in paragraph 9 above). The evidence shows that the impact of the proposed development on the view of Sydney Harbour enjoyed by existing residents and the promoting of view sharing was examined by the council in detail. That consideration includes the documentary material which was before the council which refers to the very matters which the applicants in these proceedings assert were not considered. They include the references in the statement of environmental effects to which I have referred, the content of the two letters of objection written by Mr Karavanas on behalf of the applicants (as well as other letters of objections), a locality map, the plans and elevations, the view analysis and the two reports of 21 June 1999 and 2 August 1999. The development site was also inspected by an inspection committee including the council's staff responsible for the preparation of the reports on the development application.
52. It must be constantly borne in mind that proof of any invalidity of a development consent rests on the challenger. I am not satisfied that the applicants have discharged the onus of demonstrating that the council has failed to comply with its obligations under clause 8(5).
53. Similarly, a consideration of clause 19 of the LEP does not require, in my opinion, that the members of the council go out on a boat every time a development application within the harbour foreshore scenic protection area is considered. Again, as Mr Ayling pointed out in his submissions, the members of the council would have been well aware of the location of this development site and able to make the assessment called for by the clause.
54. Although there is no express reference to clause 19 in either of the council officer's reports on the development application, it is expressly noted and discussed in the statement of environmental effects (as noted in paragraph 16 above). The council had either actual or constructive knowledge of the content of that document (Minister for Aboriginal Affairs v Peko-Wallsend [1986] HCA 40; (1986) 162 CLR 24 at 45, 65-66). In this respect I adopt what was said by Pearlman J in the Schroders case, as follows:
26. One of the planks in Mr Austin's argument was a submission that the Court could not draw inferences from material constructively before the council, that is, in the council files, because there was no evidence to establish that any councillor had actually inspected those files. Hence, in Mr Austin's submission, the only factual matters from which inferences could be drawn were those set out in the GSA report, and, having regard to those matters alone, an inference could be drawn that the council failed to pose for itself the question of consistency with the 3(g) zone objectives. Mr Austin pointed to the fact that no councillor was called to give evidence as to the matters which he or she took into account on the consistency issue, or as to whether he or she inspected the council's files. Accordingly, it was said that, applying Jones v Dunkel and Anor [1959] HCA 8; (1959) 101 CLR 298, the inference must be drawn that no councillor could have given evidence to assist the case of the council or Fabcot.
27 I reject this argument. Ms Chapman gave evidence that the council files were in her control, and were available (either in whole or part) in the council chambers at times when the proposed development was under consideration. Furthermore, the council files were available for inspection in her office at other times. The onus is upon Schroders to establish its ground of challenge. It must establish facts from which an appropriate inference can safely be drawn (Parramatta City Council v Hale at 345). I decline, however, to draw an inference adverse to the council in the absence of any facts other than that there was opportunity for the councillors to have access to the files.
55. I have referred (in paragraph 28) above to evidence that it is the general practice of the council to have the files which are the subject of any development application which comes before the development control committee or any other committee of the council available at that meeting; and that the files are delivered to the meeting in order to make them available for inspection by the councillors or staff during the consideration of development applications.
56. I am not satisfied, that the applicants have discharged the onus of showing that the council failed to make the assessment called for by clause 19.
57. If, however, I am wrong in relation to clause 19 then there is another answer to the applicants' submission. Mr McEwen emphasised in his submission that clause 19 operates as a pre-condition to any merits assessment of the development application. That is to say, unless the preliminary hurdle presented by clause 19 is overcome, then the development is prohibited. This development, however, is permitted not by the LEP but the Policy. A clause which operates as a pre-condition in the LEP so as to prohibit development which is expressly permissible under the Policy, would appear to be inconsistent with the Policy. In Coffs Harbour Environment Centre Inc. v the Minister (1994) 84 LGERA 324, Kirby P, considered the meaning of the terms "inconsistency" in a case which involved a question of whether there was an inconsistency between a local environmental plan and a regional environmental plan (at 331):
Upon that basis, there will an inconsistency if, in the provisions of one environmental planning instrument, there is "want of consistency or congruity"; "lack of accordance or harmony" or "incompatibility, contrariety, or opposition" with another environmental planning instrument.
Two instruments may be inconsistent if the general principles or general provisions provided by each are different. They may be inconsistent if the later instrument enacts a provision which is a qualification of or an exception to a general principal stated in the earlier instrument.
59. If, as Mr McEwen submits, clause 19 in the present case operates as a prohibition which comes before any assessment of the merits of a development application, there is then an apparent want of consistency or congruity with permissibility under the Policy, a lack of accordance or harmony therewith, or an incompatibility, contrariety or opposition to the Policy; and particularly in the present case clause 19 is "a qualification of or an exception to" permissibility under the Policy. There is thus an inconsistency with the Policy. Pursuant to clause 5(2) of the Policy, the Policy prevails.
60. The complaints of the applicants in this case relate only to that component of the proposed development which comprises the residential dual occupancies. The other components, namely the demolishing of the existing dwelling house and the subdivision are not dependent upon the Policy and were approved by the council under the LEP.
61. In this case every objection raised by the present applicants to the development application was carefully examined and considered by the council in the course of its consideration thereof. There has seldom been a case in which a development application has been examined by a council as thoroughly or as exhaustively as the present. Notwithstanding this, the applicants have examined the council's somewhat voluminous file on the development application with a view to finding a word missing here or a sentence missing there upon which to found a claim for invalidity. I am satisfied, however, that the substance of every material consideration was taken into account by the council as required by the provisions of the LEP which the applicants have identified.
62. This brings me to the exercise of the Court's discretion. The conclusion that the applicants have failed to prove any invalidity in the council's determination of the development application means that the applicants' claims must be dismissed, so that the question of the Court's discretion does not arise. If, however, it had been necessary to exercise the Court's discretion I would have been inclined to decline from granting the relief sought by the applicants. I am so inclined for the reason that there is a complete absence of any environmental or other harm. As to the view of or appearance of the proposed development from the Harbour, I am satisfied by the evidence of Mr H M Sanders, whose evidence I accept, that the proposed buildings would not be readily distinguishable when viewed from the Harbour, that they would have an acceptable appearance when viewed from the Harbour and its foreshores, they would be compatible with the built landform as seen from the water and foreshore and their visual impact will be acceptable in the context of the landscape characteristics of the locality. Mr Sanders took photographs of the site from the Harbour, which were tendered in evidence and in which the subject property can barely be seen as a speck in the distance. I am also satisfied by the evidence of Mr Sanders that the determination of the development application by the council was reasonable in terms of the impact of the proposal on views from neighbouring properties and promotes the practice of the view sharing. I accept the evidence of Mr Karavanas that the proposal removes some of the view presently enjoyed by the applicants, but that fact does not alter the conclusions to which I have come.
2. The applicants must pay the respondents' costs.
Springer & Anor
Woollahra Municipal Council & Ors
CITATION : Springer & Anor v Woollahra Municipal Council & Ors [2000] NSWLEC 135 APPLICANTS: Leslie Springer and Frederika Springer
THIRD RESPONDENT: Catherine Cunio FILE NUMBER(S) : 40193 of 1999 CORAM: Lloyd J KEY ISSUES: Judicial Review :- whether determination of development application lawful - whether all relevant considerations assessed - whether any inconsistency between environmental planning instruments Sydney Regional Environmental Plan No. 23 cl 5 LEGISLATION CITED: State Environmental Planning Policy No. 53 cl 5, cl 16, cl 17, cl 19, cl 20, cl 31, Sch 5 Woollahra Local Environmental Plan 1995 cl 2, cl 5, cl 8, cl 19 Coffs Harbour Environment Centre Inc v The Minister (1994) 84 LGERA 324; Currey v Sutherland Shire Council (1998) 100 LGERA 365; Franklins Ltd v Penrith City Council [1999] NSWCA 134; Hortis v Manly Council (1999) 104 LGERA 43; CASES CITED: Lakeside Plaza Pty Ltd v Legal & General Properties No. 2 Ltd (1992) 76 LGERA 60; Marnal Pty Ltd v Cessnock City Council (1989) 68 LGRA 135; Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24; Schroders Australia Property Management Ltd v Shoalhaven City Council [1999] NSWLEC 251; Somerville v Dalby (1990) 69 LGRA 422 DATES OF HEARING: 18/05/2000 and 19/05/2000 DATE OF JUDGMENT: 06/29/2000
(1994) 84 LGERA 324
(1998) 100 LGERA 365
(1999) 104 LGERA 43
(1992) 76 LGERA 60
(1986) 162 CLR 24
(1996) 89 LGERA 240
(1992) 47 LGERA 329
(1990) 69 LGERA 422
(1989) 68 LGERA 135
(1959) 101 CLR 298