The Presbyterian Church (New South Wales) Property Trust v Woollahra Municipal Council

1. The Senior Commissioner's judgment contains an introduction, description of the development application, details of the site inspection, resident objector evidence at [17]-[29] including assessment of the weight it would be given, the planning framework, and the 2009 development consent for the preparatory school's pupil population. Of particular relevance to this appeal are sections dealing with general comments concerning parking and traffic matters, communications with parents about parking and traffic arrangements, the Traffic and Management Plan prepared in October 2009, the statement of facts and contentions in reply where the Appellant's response to the Council's issue of the interaction of school-aged pedestrians and traffic on Kambala Road was identified and the Appellant's response that there was no issue provided that parents use the drop-off/pick-up area and students use only the passenger side doors of vehicles. The planning principles in Randall Pty Ltd v Leichhardt Council [2004] NSWLEC 277 are considered at [68]-[81] and found not to apply. The on-site parking issue identified by the Council is considered as providing no basis for refusal, similarly in relation to the operation of control C5 part 2.6 of the Educational Establishments Development Control Plan 2012 (the Educational Establishments DCP). The residents' evidence concerning parking and traffic matters is considered at [124]-[164], the Senior Commissioner's conclusion on traffic and parking behaviour at [165], the use of 19 Kambala Road and future parental behaviour was considered in light of the test posed in [167] identifying the need for a preventative (rather than a precautionary) approach at [191] given the potential safety risk to school age pedestrians leading to his final conclusions that the application should be refused at [198]-[200].
2. The unchallenged evidence of Mr Crerar, the principal of the preparatory school, was that as a result of the change of use application there will be no change in student and staff numbers in the preparatory school which are capped at 65 staff and 500 students at the ELC. The only change internally to the use of the school site will be that children walk from the same play area to a different nearby building on the Kambala Road side of the site rather than the Mansion Road side as is presently the case. Written and oral evidence from traffic expert Mr Morse called by the Appellant and Mr Edward-Davis called by the Council was heard.
3. At [167] the Senior Commissioner stated the following test he considered he must address:
4. The proper question to which I am required to turn my attention is "Can I be satisfied, to the degree of comfortable satisfaction necessary in light of the potential consequences if I am wrong, that there will be no increase in the exposure of pedestrians (particularly young children) to the unsafe parental driving behaviours in Kambala Road?"
5. At [195] the Senior Commissioner stated his conclusion in relation to the test:
6. I cannot be satisfied, to the degree of comfortable satisfaction appropriate given the potential consequences if there were to be a collision between a person (particularly a child) and a vehicle, that there is no foreseeable possibility of any increment if this application were to be approved. The extent and nature of the present unsafe and risky behaviours is such that any increment, whatsoever, of exposure of children to those risks is completely unacceptable.
7. At the end of the first day of hearing the Senior Commissioner said: SENIOR COMMISSIONER: Well they won't be debating legal propositions. I'm not going to permit them to be doing that, but there are factual issues certainly that arise out of some elements of the joint report that seem to me quite - apart from the matters that you've been taking me to, do potentially get engaged by the application and if nothing else they are matters that I wish to discuss or have the experts discuss and whatever might be the position about the application of net deficiencies of parking spaces and available to be argued in these proceedings or not there are at least some matters that, whether in precise terms or not, are engaged by the joint statement that I wish to have the witnesses canvass. … HALE: Can I conclude just on these 30 seconds to say this? One thing which will be apparent when you read the joint expert's report, it is not being suggested that this development will in fact lead to an increase in numbers of students. SENIOR COMMISSIONER: I understand that but at least as I understand it and from memory some of the objections, that there is a view that is put that it will lead to the movement of impact rather - that is, where the impacts fall as opposed to the totality of the impacts. HALE: There is nothing in the expert evidence or any of the suggestions in the council's contentions to that effect. This is the first time - SENIOR COMMISSIONER: Well it may be but if it arises out of the public submissions, 79C requires me to have regard to it and if it is a matter of concern I have to tell you and I'm telling you now, because we haven't got to it during the course of the day, that that, it seems to me, is potentially a matter that requires response. That's all. It is potentially a matter of considerable import as to whether I should approve or refuse your client's application. I am telling you now with a day to go because it hasn't arisen during the course of today and if I suddenly said to you at ten to four tomorrow afternoon that you would've been entitled to an entirely legitimate sense of grievance, probably dealt with higher up the food chain, than if I had told you now.
8. In the response to the statement of facts and contentions, the Appellant stated, inter alia, that its primary position was that the likely impact of the development, if approved, assessed under s 79C(1)(b) of the EPA Act, does not and cannot increase traffic and parking impacts in the locality, and that accordingly, it was not open to the Court to refuse the development application on the grounds in contention 1 and contention 2 and that the matters raised in those contentions were, in the circumstances, irrelevant considerations pursuant to s 79C(1) (CB vol 1, pp.406-412).
9. Contention 3 became irrelevant in the course of the hearing and need not be considered in this appeal.
10. The Council contended in its closing submissions that the Appellant relies on a big and unsupported assumption that because the 500 student cap will not change as a result of the proposed development, there will be no change in traffic conditions. The Council considered that the planning principles as stated by Tuor C in Randall at [25]-[26] applied in this case. If there are currently unacceptable impacts, then it is for the Appellant to demonstrate that there is no overall increase in impact, or that mitigation measures are proposed to minimise the existing impact. The evidence demonstrated a number of unacceptable impacts being the unsafe behaviours of parents in the vicinity of 19 Kambala Road. The application did not demonstrate that there will not be any overall increased risk in impact, specifically that there will be no increase in traffic impacts as a result of the proposal. The Appellant did not even conduct a basic survey of parents to see whether their drop-off and pick-up behaviour would change as a result of the proposed development.

Ground 1 Denial of procedural fairness

1. The first ground in the summons alleges that there was a denial of procedural fairness by the Senior Commissioner. The Appellant submitted that in its statement of facts and contentions the Council contended that the Appellant's development application should be refused on three grounds. During final addresses the Appellant, with the leave of the Court, amended the development application to delete the proposed lay by. Up until that time the proceedings were conducted on the basis that the only issues for determination were the issues in Council's contentions 1, 2 and 3 and thereafter the issues in Council's contentions 1 and 2. All evidence was received and submissions were made on this basis.
2. In his decision, the Senior Commissioner found that neither contention 1 nor contention 2 was a basis for refusing the Appellant's development application. Instead of allowing the appeal, the Senior Commissioner considered an additional issue (the new issue) at [167] which was: … Can I be satisfied, to the degree of comfortable satisfaction necessary in light of the potential consequences if I am wrong, that there will be no increase in the exposure of pedestrians (particularly young children) to the unsafe parental driving behaviours in Kambala Road?
3. The Senior Commissioner determined the new issue in the negative and against the Appellant. On the basis of his determination of the new issue he dismissed the appeal and refused development consent. The Senior Commissioner held that the Appellant had not discharged its onus under the test that he had formulated in this further ground. As a consequence, he dismissed the Appellant's appeal. The first time the Appellant knew of this further ground was when it appeared in the decision.
4. The new issue on which the Senior Commissioner determined the proceedings was not an issue in the proceedings. The Senior Commissioner never gave the Appellant notice of the new issue nor his intention to take it into consideration, nor gave the Appellant any opportunity to address the issue, lead evidence or make submissions with respect to it.
5. On the Council's contentions, traffic impacts were relevant only in relation to contentions 2 and 3 (contention 3 had ceased to have relevance) and limited solely to the question of whether the application should be refused due to its failure to provide an on-site pick-up and drop-off point as required by control C5 of Part 2.6 the Educational Establishments DCP. Particular 2.4 to contention 2 referred to interaction between traffic and school-aged pedestrians in Mansion Road and Kambala Road, but only in the context of the contention that a breach of control C5 should not be permitted.
6. The Council submitted there was no failure by the Senior Commissioner to afford procedural fairness to the Appellant. The issue he addressed was expressly identified in the statement of facts and contentions as sub-issues in relation to pedestrian safety. This issue was expressly raised by the Senior Commissioner at the end of the first day and was known to the parties who also cross-examined the traffic experts on the issue of parental behaviour and traffic issues in Kambala Road. This issue was also identified by the resident objectors to the Senior Commissioner during the hearing and was addressed at pars 6-22 of the Council's closing submissions.

No failure to afford procedural fairness to the Appellant

1. The parties do not disagree on the relevant principles which apply to this ground of appeal and they are correctly identified in the Appellant's submissions. A denial of procedural fairness has been recognised as an error giving rise to a question of law that founds an appeal under s 56A of the Court Act: Cavasinni Constructions Pty Ltd v Fairfield City Council [2010] NSWLEC 65; (2010) 173 LGERA 456 per Craig J at [39], Castle Constructions Pty Ltd v North Sydney Council; Minister for Planning and Infrastructure v SHCAG Pty Ltd [2008] NSWLEC 239 at [20]; Boral Cement Pty Ltd v SHCAG Pty Ltd [2013] NSWLEC 203 at [20] (Boral); Botany Bay City Council v Pet Carriers International Pty Ltd [2013] NSWLEC 147; (2013) 201 LGERA 116 at [99]- [101].
2. It is accepted that a commissioner of the Court is not bound to determine the proceedings solely by reference to the issues. If, however, the proceedings are to be determined by reference to matters outside the issues, then procedural fairness would require that the parties be put on notice that some additional issue is raised: see Design Power Associates Pty Ltd v Willoughby City Council (2005) 148 LGERA 233 at [70], Castle Constructions Pty Ltd v North Sydney Council at [20], Cavasinni Constructions Pty Ltd v Fairfield City Council at [39]; Boral at [31].
3. I agree with the Council's submissions that there was no failure to accord procedural fairness to the Appellant in the circumstances of this case. While there were three specific contentions identified by the statement of facts and contentions these were not the only issues in relation to traffic and pedestrian safety identified in that document as can be seen at pp. 408-412 of the court book extracted above in [5]. Pedestrian safety and traffic management were identified in at least five places. The Appellant's somewhat formalistic submission is that the only basis on which the Senior Commissioner could consider the potential future driving behaviour of parents as identified at [166]-[197] of the judgment was in the context of contention 2 as narrowly expressed in the first column of the statement of facts and contentions of whether there should be an on-site pick-up and drop-off point as required by the Council's Educational Establishment DCP control C5 Part 2.6. The sub-issues identified in the contentions raised the issue of traffic safety more broadly. Further the Senior Commissioner squarely identified to the parties at the end of the first day his view that the objector evidence raised the issue that the concentration of adverse traffic impact may change as a result of the Appellant's change of use application.
4. The traffic experts gave conflicting evidence on this topic. In Mr Morse's case this appeared to be because he accepted or was the source of the Appellant's assumption that because overall numbers of students and staff travelling to and from the site would not change and the only internal changes concerned children walking to another building from the same play area within the school site there were not traffic safety consequences. Ms Edward-Davis' oral evidence was that it is too early to make assumptions about parental behaviour as parents may choose to alter their drop-off point if the classroom moves to an address in Kambala Road (CB vol 1 p.141). As the Council submitted no evidence such as a survey of parent drop-off and pick-up intentions was called to support the Appellant's assumption and the Senior Commissioner stated that whether this would have assisted in the resolution of issues was an unknown matter at [181] of the judgment.
5. As the Council submitted there was no objection taken to the Council's counsel asking questions of the traffic experts relevant to the issue identified by the Senior Commissioner. The case was conducted by the Council at least on the basis that issue was to be considered by the Court. The issue of the potential for greater traffic with consequent pedestrian safety issues was addressed by the Council in its closing submissions before the Senior Commissioner as summarised above at [13]. For the reasons given by the Council the Appellant was put on notice of this issue in the course of the hearing and had the opportunity to address it if it so chose.
6. That the Appellant chose to stick to its position that as a matter of logic there could be no change in traffic impacts because numbers of people travelling to and from the site remained the same does not mean that the additional issue was not squarely raised by the Senior Commissioner.
7. There was no denial of procedural fairness by the Senior Commissioner in these circumstances and this ground of appeal fails.

Ground 2 s 79C(1)(b)

1. The summons alleges that in considering the matters in s 79C(1)(b) of the EPA Act the Senior Commissioner erred on a question of law in that instead of considering the likely impact of the development he misdirected himself by applying a different test of potential impact.
2. As part of its wide-ranging submissions the Appellant's counsel stated that "likely" in this context has the meaning of a "real chance or possibility" rather than more probably than not per Hoxton Park Residents Action Group v Liverpool City Council [2011] NSWCA 349; 81 NSWLR 638 at [46]. The test identified in [167] was a different consideration to that required by s 79C(1)(b) and had to be assessed in light of the Appellant's evidence that there would be no change in student numbers dropped or collected, as explained in the evidence of Mr Crerar. The student foot traffic on school grounds would be unaltered.

Finding

1. This ground is misconceived as I consider it misrepresents the judgment. It is necessary to consider the whole of the Senior Commissioner's judgment where he addresses traffic issues. From [124], he dealt firstly with evidence concerning parking and traffic from residents leading to a conclusion in [165] that there is a significant problem with parental driving and parking behaviours outside the school in Kambala road. The Senior Commissioner then poses the question he considers he must answer at [167] (see above), refers to the Monash report (Safety Assessment of School Pick-up/drop-off at the Scots College Early Learning Centre by the Monash University Accident Research Centre) commissioned by the school at [170]-[173], the traffic experts' evidence which was in conflict at [175]-[179], and the Council's submissions in relation to the Appellant bearing the onus in the particular circumstances of this case at [182], which he chooses to adopt. The Senior Commissioner goes on to consider a precautionary/preventative approach at [184]-[191] resulting in a conclusion in [195] that he was not satisfied of the matter he had stated in [167].
2. That entire consideration addresses the likely impact on the environment of traffic and pedestrian safety issues at the school site in Kambala Road. Singling out the test the Senior Commissioner identifies in [167] and answers in [195] as the wrong test because it does not use the words likely impact is formalistic and an inappropriate way to analyse the judgment.
3. Further, the Appellant's submission that the uncontested evidence was that the student numbers would remain the same and that there was no likely impact from the change of use in terms of traffic or pedestrian safety does not properly reflect the conflicting evidence of the traffic experts and fails to take into account the evidence of the resident objectors before the Court.
4. As part of this ground of appeal criticism was also made of the Senior Commissioner's consideration of Telstra Corporation Limited v Hornsby Shire Council [2006] NSWLEC 133; (2006) 67 NSWLR 256; (2006) 146 LGERA 10 and by implication the preventative approach taken by the Senior Commissioner (who did not directly apply Telstra for the reasons explained in the judgment at [184]-[189]. As these submissions fell outside the ground of appeal as I understood it I will not further consider that aspect of the submissions.
5. Ground 3 was addressed as part of ground 2 and need not be considered separately. I note that the matter identified in [167] of the judgment as irrelevant by the Appellant is clearly not in the context of the traffic and pedestrian safety issues raised by resident objectors and was a matter which the Senior Commissioner could consider. The Senior Commissioner clearly identified to the parties that a response was necessary to these at the end of day 1.
6. Grounds 2 and 3 fail.

Ground 4 no probative evidence

1. The summons alleges that to the extent that the Senior Commissioner held there would be, or was likely to be, any traffic or parking impacts on Kambala Road if development consent were to be granted to the Appellant's development application, the Commissioner erred on a question of law as there was no probative evidence to support such a finding.
2. As expressed to the Appellant's counsel this ground is unclear. It is directed to a finding which the Senior Commissioner did not make in the judgment so that how it can arise in this appeal is not clear to the Court. No finding was made by the Senior Commissioner that the proposal had the potential to increase traffic impacts on pedestrian safety in Kambala Road. The Senior Commissioner was not satisfied of certain matters in relation to which he considered the Appellant bore an onus which it had not discharged. This ground of appeal does not arise on the judgment as written.
3. Further, and in any event, no error of law occurs where a decision-maker is not satisfied of a factual matter per Basten JA in Allianz Australia Insurance Ltd v BlueScope Steel Ltd [2014] NSWCA 276 at [66].
4. Ground 4 fails.

Orders

1. The Court makes the following orders: 1. The appeal is dismissed. 2. Costs are reserved.

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. Decision last updated: 01 April 2015