Teoh v Hunters Hill Council and Another

Bruce v Cole and Others (1998) 45 NSWLR 163 Centro Properties Limited v Hurstville City Council and Another (2004) 135 LGERA 257 MCC Energy Pty Ltd v Wyong Shire Council and Others (2006) 149 LGERA 59 CASES CITED: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992 Murrumbidgee Groundwater Preservation Association Inc v Minister for Natural Resources (2005) 138 LGERA 11 Re Minister for Immigration and Multicultural Affairs Ex parte Applicant S20/2002 (2003) 77 ALJR 1165 Telstra Corporation Ltd and Another v Hurstville City Council and Others (2002) 118 FCR 198 Zhang v Canterbury City Council (2001) 51 NSWLR 589

APPLICANT Mr R O'Gorman-Hughes, Barrister

FIRST RESPONDENT Mr P McEwen SC LEGAL REPRESENTATIVES: SOLICITORS H W L Ebsworth Lawyers

SECOND RESPONDENT Mr M Baird, Barrister SOLICITORS Ronald S Czinner & Co

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

40246 of 2008 Teoh v Hunters Hill Council and Another

JUDGMENT Introduction 1 His Honour: Mr Williams resides at 70 Mary Street Hunters Hill, and Mrs Teoh and her husband have resided for 35 years at No.68, immediately to the south. 2 Mrs Teoh has brought this Class 4 challenge to a consent granted by the Council in favour of Mr Williams for a second storey addition to his house (see Exhibit C1, fol 52ff). 3 She asserts that Council misapplied the solar access control set out in s.7.4 of its Development Control Plan No.15 (Exhibit T1), which became operative on 2 March 2000. Council's Manager - Development & Environment, Steve Kaurepis, testified (affidavit par 16) that throughout his time at Hunters Hill Council those provisions of the DCP have "always been assessed to the whole of a site". Mrs Teoh submits that that is the wrong approach. 4 Mr Williams's relevant development application was lodged with the Council, with a Statement of Environmental Effects, on 13 August 2007, and notified to residents on 15 August 2007. Council received an objection from Mrs Teoh and her husband on 30 August and a further objection on 7 September 2007. Mr Williams's plans were amended to deal with an alleged non-compliance concerning the site setback and Council notified those amendments on 19 October 2007. 5 Mrs Teoh submitted a series of written objections (see Exhibit C1) to the amended proposal, the major issue being its impact on the solar access of No.68. In addition to her written objections, the agreed chronology indicates that Mrs Teoh addressed the Council's Development Control Unit and then the Council itself regarding her concerns, but the Council resolved to grant development consent, subject to conditions, on 26 November 2007. 6 These proceedings were commenced on 12 March 2008. Mrs Teoh acted for herself throughout, but instructed Mr O'Gorman-Hughes of Counsel to appear for her at the hearing. The Amended Points of Claim filed on 20 May 2008 were met by Amended Points of Defence filed by each of the Respondents on 28 May 2008. The only issue pressed by Mrs Teoh at the hearing concerned the Council's application of the control and its consideration of the solar access of the proposal. The Consent 7 The relevant provisions of s.7.4 of DCP No.15, headed "Solar Access", and accompanied by diagrams, are: " 7.4.1 Objectives a. To provide reasonable access to sunlight to living spaces within buildings and open spaces around building. b. To encourage reasonable residential site planning and building design that optimises solar access to land and buildings. c. To reduce total energy use in residential buildings, by reducing heat loss, and energy consumption for heating and cooling purposes. d. To encourage the use of building materials and techniques that are energy efficient, non-harmful and environmentally sustainable. 7.4.2 General Requirements New development must not eliminate more than one third of the existing sunlight to adjacent properties at ground level, measured at 9.00 am, 12 noon and 3.00 pm of the winter solstice. Buildings are to be designed to minimise loss of sunlight to adjacent buildings. Shadowing from trees will not usually be taken into account. New development should be designed to receive as much mid-winter sunlight as possible to the principal outdoor areas or to windows of the principal living rooms. New residential buildings shall, where possible be designed to be energy efficient and to maximise the use of solar power. Where adjoining development relies on solar access for heating or cooling systems, that access where possible must be preserved.

Council requires submission of shadow diagrams at 1:100 or 1:200 scale, showing the impact of a proposal on the sunlight of adjoining residential buildings and their landscaped open space, which will demonstrate that Council's requirements have been achieved. Such diagrams should be prepared by an architect or surveyor and be based on a survey of the relevant site and adjoining development. · Shadow diagrams will be required for all new buildings and first floor additions. Plans must clearly demonstrate the difference between the existing available sunlight and available sunlight following development.

Solar access is a measure of the available sunlight for a particular building or site. Mid winter is the most critical time to assess solar access to dwellings, and its associated private open space. The orientation of spaces within the house, in relation to the movement of the sun, is the most significant influence on energy efficiency in the home. The north side of a building is a good location for spaces that are continually occupied during the day, such as living zones. The spaces usually have large heating and lighting requirements. During the winter season, the north face of the building will receive significantly more solar energy than east and west sides. Living areas orientated towards north can take advantage of this solar energy, maximise thermal comfort and achieve energy savings." 8 In Mr Williams's Statement of Environmental Effects (Exhibit C1 fols 180ff) the subject of overshadowing is addressed by reference to a Shadow Diagram (DR 3520-2) in the following terms (fol 186): " Additional shadowing as a result of the proposed alterations and additions will have minimal effect to adjoining neighbours. At 9am, the shadows cast by the proposal will fall onto the rear of the residence of adjoining property No.68 and their rear yard. At 12 noon, the shadows cast will fall below the window sill height of the first floor of the adjoining property No.68 and at 3pm, the shadows cast will not cause any additional shadowing to the ground floor windows of No.68. Therefore, overshadowing as a result of the proposal will not be significant". 9 The Assessment Report considered by the Council meeting says (Exhibit C1, fols.74-75): " The owners of the adjoining property to the south, being No.68 Mary Street, have raised concerns with regard to a loss of sunlight to the south-west, being the rear of their dwelling and garden. The shadow diagrams indicate that these areas would be overshadowed between 9am and 12 noon at mid winter. It should be noted that if the entire open space of the site was incorporated in this calculation that the overshadowing would be less than 30%. It is considered that the proposal would allow for reasonable access to sunlight to the adjoining building to the south and their recreational open space. Accordingly, the proposal would comply with the general requirements, being that new development must not eliminate more than one third of the existing sunlight to adjacent properties at ground level, measured at 9am, 12 noon and 3pm of the winter solstice. The shadow diagrams indicate that at 12 noon mid winter, the shadows are cast to the south of the subject site and onto the adjoining property at No.68 Mary Street. The additional shadows would affect less than 30% of the existing recreational open space to the adjoining property.

The shadow diagrams indicate that at 3pm mid winter, the shadows are cast to the south-east (front) of the subject site and onto the adjoining property at No.68 Mary Street and onto the street. It should be noted that if the entire open space of the site was incorporated in this calculation that the overshadowing would be less than 30%.

However, the extent of the overshadowing is not sufficient to warrant the refusal of the application. Also, the applicant has provided a letter (dated 8 November 2007), which confirms that the proposed shadow diagrams have been correctly drawn.

As stated within the body of the report, the proposal complies with the statutory height maximum requirement of 7.2 metres and minimum setbacks. The applicant has been mindful of proposing a development that is sensitive to the amenity of the adjoining properties. The additional overshadowing would exist for only a couple of hours in midwinter. On balance the proposal is considered to be satisfactory with the objectives under Part 7.4.1 of Development Control Plan No.15, as the proposal would allow for reasonable access to sunlight to adjoining buildings and their open spaces. This overshadowing is considered acceptable on balance with the entire assessment of the application.

The proposal would comply with the general requirements, being that new development must not eliminate more than one third of the existing sunlight to adjacent properties at ground level, measured at 9.00am, 12noon and 3.00pm of the winter solstice. Accordingly, the proposal would satisfy the objectives stipulated under Part 7.4.1 of the Development Control Plan No.15." The Challenges 10 The Applicant seeks a declaration that the consent is void and of no effect on the following grounds:

(a) The Council found that the proposed development complied with the solar access requirements of DCP 15 without any evidence or other material to justify that finding. (b) The finding that the proposed development complied with the solar access requirements of DCP 15 was so unreasonable that no reasonable decision-maker could have so found. (c) The Council misdirected itself as to the interpretation of the solar access requirements of DCP 15, and (d) The Council failed to properly consider the solar access requirements of DCP 15. 11 On challenge (a), no evidence, the Applicant submits that there was no evidence before the Council identifying the existing sunlight to adjacent properties as required by the terms of DCP 15. Bruce v Cole and Others (1998) 45 NSWLR 163 ("Bruce v Cole") is authority for the proposition that finding facts and drawing inferences in the absence of evidence to support them constitutes an error of law. 12 On the Wednesbury unreasonableness ground (b), the Applicant relied on Murrumbidgee Groundwater Preservation Association Inc v Minister for Natural Resources (2005) 138 LGERA 11 ("Murrumbidgee Groundwater") for a submission that the decision of the Council was "illogical, irrational or lacking a basis in bindings or inferences of fact supported on logical grounds". There was no basis for the finding that the quantitative provisions of DCP 15 concerning solar access were satisfied. The finding leading to the conclusion - concerning overshadowing to the "open space" - did not form a rational basis from which a conclusion could be drawn as to the loss of "existing sunlight". 13 On the misdirection point (c), the Applicant submits that the Council misdirected itself concerning what DCP 15 requires, namely an assessment of the loss of existing sunlight to adjacent properties. The Council purported to apply the correct test but, in substance, it asked whether the overshadowing of the "entire open space" of the site would exceed 30%, and whether the proposal would allow "reasonable" access to sunlight, before concluding that the quantitative solar access requirements were met. Essentially those questions do not establish that those requirements are satisfied. 14 On the asserted "failure to properly consider" ground (d), the Applicant submits that the Council substituted for the actual requirements of DCP 15 a different approach. It resolved the issue of loss of existing sunlight to adjacent properties by reference to the overshadowing of the "entire open space" and the finding that the access would be "reasonable". It is submitted that this is a similar error to that found by the Court of Appeal in Zhang v Canterbury City Council (2001) 51 NSWLR 589 ("Zhang"), where the control specified a distance for a brothel to be located from certain other developments, and the Commissioner substituted for that quantitative control a test of "reasonableness", which course the Court of Appeal found (at par [76]) "impermissible". Discussion 15 It should be noted that the challenge is really to the assessment upon which the Council's consent relies, rather than the decision itself to grant the consent. Mrs Teoh challenged the assessment at the Development Control Unit, but it went forward, unamended, to the Council itself, and was accepted. There is no doubt, on the evidence, that the proposal will increase the shadow effect No.70 has over No.68, but the Council assessed that impact, and it is not for the Court in these proceedings to review the consent on the merits; the Court's duty and function is to review the process followed by the Council to ensure that it carried out its obligations according to the law. 16 It is useful at this point to review some of the authorities upon which the parties relied during argument: 17 In Bruce v Cole Spigelman CJ (at 187-188) surveyed the relevant authorities on judicial review of findings of fact and arrived at the following basic principles (omitting references): "(1) There is no error of law in making a wrong finding of fact; (2) An inference of fact must be open to be drawn; (3) The making of findings and the drawing of inferences without any evidence to support them is an error of law; (4) Acting without probative evidence is the equivalent of no evidence." 18 His Honour concluded in Murrumbidgee Groundwater (at [129]) that: "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]." 19 As Lloyd J observed in Anderson & Anor v Director-General of the Department of Environment and Climate Change & Anor [2008] NSWLEC 182 at [37]: "The fact that the decision-maker did not ultimately agree with the views of the Andersons does not give rise to reviewable error. It is important to note the observations of Brennan J in Attorney General (NSW) v Quin (1990) 170 CLR 1 at 36: The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone." 20 His Honour's further comments (at [55]-[56]) are also apposite: "55 A decision may be unreasonable in the relevant sense, and therefore, an improper exercise of the power, where to the knowledge of the decision-maker, there is readily available to him or her other factual material, likely to be of critical importance in relation to a central issue for determination, and which has not been obtained: Luu v Renevier (1989) 91 ALR 39 at 50, (emphasis added). The Umwelt review does not add any factual material to that which was already before the decision-maker, neither, for the reasons I have discussed, was it of critical importance. The cautionary observation of Basten JA in Kindimindi, noted in par [22] above, is directly on point. 56 Moreover, as Deane J stated in Sean Investment Pty Ltd v MacKellor (1981) 38 ALR 363 (affirmed on appeal: (1982) 42 ALR 676), the duty of a decision-maker to pay regard to relevant matters does not mean that a party affected by a decision is entitled to make an exhaustive list of all the matters which the decision-maker might conceivably regard as relevant and then attack the decision on the ground that one of them was not specifically taken into account." 21 In Telstra Corporation Ltd and Another v Hurstville City Council and Others (2002) 118 FCR 198, Sundberg and Finkelstein JJ commented at [50]: " The primary judge referred to a divergence in view as to whether it is permissible to go behind the formal resolution of a corporation in order to discern the purpose of its action, and concluded that it is. His Honour accepted (at par 236) Telstra's submission that: 'the purposes of, and considerations taken into account by, Councils are best inferred from the documents brought into existence by their officers (primarily reports to the Council but also memoranda and the like leading up to those reports) and the resolution of the Councils in response thereto. In particular, where a recommendation is adopted without more, it can and ought properly be inferred that the `intentions, purposes, motives, beliefs and state of mind' of the Council (as a collegiate body) are as disclosed in the reports and other documents brought into existence by its officers.' Although no authority was cited that supports his Honour's approach, we think it is correct. Thus in Municipal Council of Sydney v Campbell [1925] AC 338 the court looked at the council resolutions, which in turn referred to a minute of the Lord Mayor that indicated the general purpose of the council's action. De Smith, Woolf and Jowell, Judicial Review of Administrative Action 5th ed (1995) at 6-083 express the view that motive or purpose may be established from sources such as council minutes and committee reports. …. Supperstone and Goudie say that where a body takes decisions on formal documents, as is usual for a local authority, the documents before the body will provide clear evidence of what considerations were drawn to its attention and by inference, presumed to have been taken into account: Judicial Review 2nd ed (1997) at 5.44. See also Pearce and Argument, Delegated Legislation in Australia 2nd ed (1999) at 225-226." 22 In Centro Properties Limited v Hurstville City Council and Another (2004) 135 LGERA 257, McClellan CJ (at [55]) dealt with the collegiate decision making of councils: "In the absence of the delegation of the decision-making function to an officer, the corporate body must itself consider the issues relevant to the development application before it. It may be informed about those issues by the officer's report which may not, and often will not, disclose all of the information considered by the officer and his or her complete reasoning processes. However, as Moffit P explained in [Parramatta City Council v Hale (1982) 47 LGRA 319] (at 346): 'While it is the collegiate body which must take the matters into consideration and accordingly must be aware of such matters to enable it to do so, that body may rely on the inquiry, advice and recommendations of its officers. Accordingly it is open to it to adopt sch a recommendation, provided in doing so it is aware from the report or from some other source, for example its general knowledge, of all the relevant s 90(1) matters, ….'" 23 In MCC Energy Pty Ltd v Wyong Shire Council and Others (2006) 149 LGERA 59 Jagot J said (at pars [48]-[49]): "48 The Wednesbury unreasonableness ground of review is extremely confined. The impugned decision "must amount to an abuse of power … or be so devoid of plausible justification that no reasonable person could have taken that course" (Wyong Shire Council v MCC Energy Pty Ltd (2005) 139 LGERA 296 at [79]). "Where the existence or non-existence of a fact is left to the judgment and discretion of a public body and that fact involves a broad spectrum ranging from the obvious to the debatable to the just conceivable, it is the duty of the court to leave the decision of that fact to the public body to whom Parliament has entrusted the decision making power save in a case where it is obvious that the public body, consciously or unconsciously, are acting perversely". (R v Hillingdon London Borough Council; ex parte Puhlhofer [1986] AC 484 at 518E, cited in Minister for Immigration and Multicultural Affairs v Singh (2002) 209 CLR 533 at [132] to [133] and in Bruce v Cole (1998) 49 NSWLR 163 at 188). Moreover, it must be recognised that there is a "world of difference between justifiable opinion and sound opinion". Whether an opinion is sound or not "is not a question for decision by a court" (The Council of the City of Parramatta v Pestell (1972) 128 CLR 305 at 323). See also Biscoe J's survey of judicial admonitions about the very confined nature of review on this ground in Save Our Street Incorporated v Settree [2006] NSWLEC 570 at [27] to [31]).

49 … As the observations of Sundberg and Finkelstein JJ in Telstra Corporation Ltd and Another v Hurstville City Council and Others (2002) 118 FCR 198 at [50] disclose, where it is apparent that the decision-maker has adopted a recommendation contained in a report without more, then an inference may properly be drawn that the report reflects the decision-maker's reasons. …[I]t also may be inferred that the Councillors and the General Manager had available general and local knowledge capable of being applied to the assessment of development application 1370/02 (see, for example, Somerville v Dalby and Others (1990) 69 LGRA 422 at 429)." 24 It is simply not correct to say that the existing level of overshadowing and the added impact of implementing the development consent were not adequately quantified for the purposes of assessing the development application on its merits, and for compliance with the Development Control Plan. All this information was before the Council as it made its decision - reading together the development application, the submitted plans, survey information, Statement of Environmental Effects, submissions and objections (including from Mrs Teoh, and including photographs, etc - see fol 112), and the Council's own resource information. 25 Further, there is no substance in the Applicant's argument that the term "adjacent properties at ground level" in the first paragraph of 7.4.2 of the Development Control Plan should be read down to exclude any built improvements on that level. The provision goes on to deal specifically with the buildings and, indeed, trees on the overshadowed property. 26 Thirdly, this is not a Zhang situation. The quantitative information was before the Council and the quantitative control in the Development Control Plan was satisfied in the Council's assessment. Whereas "reasonable" might satisfy the Council's obligations under s.79C of the Environmental Planning and Assessment Act 1979, and even under the applicable Local Environmental Plan, the Development Control Plan in this case has a specific quantitative requirement ("one third") and the Council assessed the Development Application against a benchmark of 30% (a more stringent test by a margin of 10% of the stipulation) and found it satisfied. 27 Fourthly, the Applicant brought before neither the Council nor the Court any evidence to cast doubt on the accuracy or reliability of the shadow diagrams used in the assessment process. 28 Fifthly, the evidence is entirely indicative of the conclusion that the Council's consideration was thorough and fair in every respect. Mrs Teoh may well be disappointed by the Council's decision, but the Court can find no reviewable error in it and should dismiss all four challenges.

Conclusion 29 The Applicant's Class 4 application should be dismissed. 30 In the normal course of events the Applicant should expect to incur an order for costs. Unusually in this case, the Council appeared and defended its consent, not simply leaving it to the beneficiary, and submitting. As that may complicate the position, Counsel agreed that I should reserve the question, and I will do so. 31 There is no need for the Court to retain any of the exhibits. Orders 32 The Orders of the Court will be:

1. Application dismissed.
2. Costs reserved.
3. All exhibits 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.