(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]).