Thomson J & (3) Ors v Leichhardt Municipal Council & [2000] NSWLEC 230 | Case summary

The proposed subdivision in this case also involves associated physical works, including the demolition of a shed and part of the rear of a building which were consented to as an intrinsic part of the subdivision application, in that they make way for vehicular access. The potential for such works, however minor, to impact on neighbouring properties could not be ignored. Those structures were part of the setting for the heritage items.
Therefore, even if the council were restricted to considering the subdivision alone (which includes the associated demolition work), a clause 19 assessment had to be made.
When a decision-maker is required to take certain matters into consideration by a statute or subordinate instrument, more than a cursory reference is called for. As was said recently in Weal v Bathurst City Council ([2000] NSWCA 88 at [81]: ...(t)aking relevant matters into consideration called for more than simply adverting to them. There had to be an understanding of the matters and the significance of the decision to be made about them, and a process of evaluation, sufficient to warrant the description of the matters being taken into consideration. The obligation to consider carries with it an implicit obligation on the decision-maker to acquaint itself with the material necessary to do so. This was explained in Parramatta City Council v Hale (1982) 47 LGRA 319 at 340 concerning certain considerations required under section 90(1) of the EP&A Act: Thus, if it is to consider the impact of the development upon the environment, if it is to consider whether it is likely to cause harm, if it is to consider the ways the environment may be protected or, if it is to consider the ways likely harm may be mitigated, it must be aware of each of these matters, namely, what is the impact, the likely harm and the ways to protect or mitigate.
The applicant in judicial review proceedings seeking to impugn a council approval bears the onus of proving, in this case, that there was a failure to take account of relevant considerations, which was ultimately a question of the state of mind of the council as a collegiate body at the time the decision was made The council's awareness of the relevant considerations could be demonstrated through its consideration of documents put before it; indeed it was said in Hale that the simple adoption even without debate of a recommendation made by a council officer in a report which refers to the relevant matters, would, without more, leave no room for an inference that the colligate body had not taken such matters into consideration ( Parramatta City Council v Hale at 346).
However, whether the reference to relevant matters is sufficiently specific to satisfy the council's obligation to consider them to the requisite degree is the crucial question. It was said in Somerville v Dalby (1990) 69 LGRA 422 at 429 that " there is no duty to refer to all matters actually considered or assessed in the determination of a development application…. It is usually sufficient to refer only to the most important matters or those having determining weight" . In the present case the council had not delegated to its officer or officers the function of assessing and determining the development application. It had reserved those functions to itself as a collegiate body. In this case the applicant must establish that the council has failed to make " an assessment of the effect which the carrying out of that development would have on the historic, scientific, cultural, social, archaeological, architectural, natural or aesthetic significance of the item and its site ." The clause is expressed in the singular; logically, therefore, a separate assessment needs to be made relative to each item of the environmental heritage in the vicinity if there is more than one.
The report before council at no stage explicitly mentions clause 19, although at least in relation to the effect of the re-drawing of boundaries it does address some heritage concerns. It lists a number of concerns raised by objectors to the development, including: "Subdivision is incompatible with strong pattern of subdivision evident in precinct which is strongly associated with the maintenance of the historic character of the precinct and its architecture." It also states (as noted in paragraph 8 above) that the subdivision pattern in the locality was traditionally long, with narrow frontages and that the proposed subdivision (although the two proposed parcels of land comply with the council's minimum requirement) is not consistent with the pattern of subdivision in the locality. The conclusion is reached that the proposal "is considered not to have a detrimental impact on adjoining development ".
The statement that the proposed subdivision is considered not to have a detrimental impact on adjoining development is sufficiently broad, in my opinion, to include an absence of detrimental impact on items of the environmental heritage in the vicinity. At another point the report also says that "the proposed subdivision would not have any adverse impact on Annandale Street as Heritage Item". The first statement, however, makes no mention of specific heritage items, while the second misstates the question. As noted in paragraph 6 above, the heritage items are in Johnstone Street, at the rear of the subject land. Annandale Street is not a heritage item within the meaning of clause 19, rather it was the impact on the various heritage properties which had to be considered.
Not only the material before council, but also the general knowledge of the councillors as individuals may help to show an awareness of the relevant considerations ( Parramatta City Council v Hale at 346; cf Currey v Sutherland Shire Council (1998) 100 LGERA 365 at 373). In this case, four of the ten councillors present have testified to the fact that they were at the time aware of clause 19, and three of these that they were familiar with its terms. This does not help the respondents, however, if none of the councillors believed that the requirements of the clause were enlivened by the subject application. The only councillor who refers to a specific heritage item in the vicinity is Cr L Hand, who states in his affidavit: "I was aware that the building "Florenceville" at 38 Johnston Street Annandale and a number of other buildings in the vicinity were items of environmental heritage under Leichhardt LEP 20". However, his view expressed at the meeting, that the council had "no choice but to approve the proposal" tends to negative any inference that he saw the proximity of these items as a matter which needed to be considered relevant to the approval of the subdivision.
The officer's report, the evidence of the meeting and the state of mind of councillors lead to the inference that a clause 19 assessment was not made. While the report does show that the council was made aware of some of the heritage implications of the re-drawing of boundaries, this inquiry was not directed to the specific heritage items in the vicinity. It could not be so directed, as it appears that the council as a collegiate body was not even aware of the location of the heritage items relative to the proposed development. As to the potential impacts of the removal of the shed and alterations to an existing building, which were an intrinsic part of the application for subdivision, the council's consideration was even less adequate. These structures were part of the setting for the heritage items in question, but the report and the discussions at the council meeting give no attention to the consequences of these works from a heritage point of view, let alone their implications for specific heritage items.
Returning to Hale , it was said that if a decision-maker "is to consider the impact of the development upon the environment, if it is to consider whether it is likely to cause harm, if it is to consider the ways the environment may be protected or, if it is to consider the ways likely harm may be mitigated, it must be aware of each of these matters, namely, what is the impact, the likely harm and the ways to protect or mitigate." (at 340). Similarly, if a decision-maker is to conduct " an assessment of the effect which the carrying out of that development would have on the historic, scientific, cultural, social, archaeological, architectural, natural or aesthetic significance of the item and its site" (as required by clause 19 in the present case), it must at least be aware of the item (that is, the heritage item), the site, its historic, scientific, cultural, social, archaeological, architectural, natural or aesthetic significance and what effect thereon is anticipated as a consequence of the development. When the council made its decision it appears to have been aware of none of these matters. The inference that it did not give them adequate consideration is, therefore, almost inescapable. In relation to development which may follow the subdivision
The most significant aspect of this development is not the re-drawing of legal boundaries itself, but a right which the developers acquire as a consequence of that change, taken together with the planning controls applying to that site. That is the right to build a dwelling-house without development consent on the second lot created by the subdivision, provided it does not exceed certain maximum specifications. Any meaningful assessment of the impact of the subdivision must therefore take account of the impact of the development which the subdivision effectively authorises - in this case the subsequent erection of a dwelling-house on a lot which was previously only the backyard of an existing dwelling-house.
It is true that if the developers sought to construct such a dwelling after the subdivision, they would have to submit an application together with plans to the council and be subject to certain building controls. However, the purpose of such controls is distinct from the planning controls which the council is enforcing when considering a development consent of the kind now before the court. Those controls do not detract, as a matter of planning law, from the applicant's right, acquired by virtue of the subdivision, to build a dwelling-house on the site without development consent. Considerations which have to be taken into account at that stage are different from those which apply to a development application; and clause 19 of LEP No. 20 would cease to be relevant.
I do not agree with Mr Ayling's submission that the developers should be required to disclose what they propose by way of construction on the subdivided lot. Subdivision is clearly a development in its own right and it may be that the current developers intend nothing but the simple subdivision for the time being. Whatever their intentions, they have acquired a new right which may be exercised by themselves or by others who purchase the land in the future to do certain things on that land and it is that right which the council has to consider.
The council does not need to have a specific building proposal before it to assess, under clause 19, the effect of granting a right to build on the newly created allotment; that is, whether the presence on the new allotment of a dwelling-house built to the maximum allowable specifications without further development consent, would impact in a relevant way on nearby heritage items. If it found any such impacts to be unacceptable, it could refuse consent, or grant consent subject to conditions (for example, a building envelope) which would lessen such undesirable impacts. A failure to consider such impacts at the subdivision stage means that council has foregone the opportunity to mitigate them when it had the power and the responsibility to do so.
An assessment of the proposed subdivision under clause 19 was, therefore, mandatory both insofar as the development was to authorise the re-drawing of boundaries and minor associated works and insofar as it carried with it an entitlement to build without development consent on the newly created allotment.
There does not appear to have been any assessment as required by clause 19 in relation to development which the subdivision effectively enables to take place, namely a potential building on the site. For example, the council officer's report states (at page 5): As a development application has not been received for the future development of the site an assessment cannot take place of the impact a potential development may have on the locality. There is no requirement under the Environmental Planning and Assessment Act for future development to be proposed simultaneously as the development application for subdivision.
Affidavits relating what occurred at the Committee meeting of 10 February, when the application was approved show that objectors who addressed the council at the meeting suggested that the council needed to consider the impact of future development. The council, however, appears to have persisted in the belief that this was not a permissible or relevant consideration. For example, according to Mr J E Thomson's affidavit, which I have no reason to doubt, Cr L Hand is reported as saying at the meeting: In my opinion this proposal should be approved. The concerns about what development might be put into the backyard of the subject site cannot be considered. The State government has tied our hands and Council is obliged to deal with the matter without having regard to what further development might occur which would have to be the subject of a separate application.
Mr Hand's affidavit tends to confirm the fact that he approached the question of future development as one for future, rather than immediate, consideration: I recall that the DA was for the subdivision of land and did not involve the approval of any improvements on the land. I was aware that it would be necessary to obtain a further approval if any building was proposed on the new lot.
None of the other councillors at the meeting appear to have contradicted Cr Hand's assertion in the meeting, although several voted against him. The evidence which has been adduced gives the overall impression that the council (as a collegiate body) proceeded on the basis of this erroneous assumption.
In spite of Ms Tonner's belief that the council was not entitled to take into consideration the impacts of possible further development on the site, she does give some general consideration to this question in her report to the council. Indeed, in the following passage she gives it such serious consideration that she proposes a possible condition which could deal with such impacts (although this condition was never imposed): Potential development could have a detrimental impact on adjoining property owners, however until an application has been submitted this cannot be fully assessed. To reduce potential conflict, a building envelope could be requested to be inserted on the linen plan of subdivision. This could limit height, densities and size. ... It is considered that sympathetic development can take place on the proposed lot without reducing the amenity of adjoining properties.
Ms Tonner appears to have proceeded on the basis that while the nature and impact of possible future development was not a consideration, it was at least relevant to ask whether sympathetic development was possible. However, this was not the kind of assessment required by clause 19. The council was required to consider the impact of the consent which was in fact being granted, which would effectively allow a building to be put on the additional allotment, not merely to negative the idea that further development on the site was bound to be unacceptable. Moreover it is clear in the above passage that Ms Tonner was focussing on amenity impacts rather than heritage impacts, because in the first paragraph she refers to "adjoining property owners" (rather than the heritage items which are to be at the centre of the inquiry under clause 19), while the second paragraph is addressed explicitly to the "amenity" question.
The same inference can, therefore, be drawn on the question of future building on the proposed new lot as was drawn on the question of the subdivision per se; that is, that the required clause 19 assessment did not take place. There is the same lack of specificity in relation to the heritage items which would potentially be impacted, but in addition there was a misunderstanding on the council's part of its obligations which led it to explicitly decline consideration of this question.
The respondents have called evidence to show that subsequent development on the land would, as a matter of fact, be possible without affecting the heritage buildings in Johnstone Street. This, however, misses the essential point, which is whether the Council took the potential heritage impacts into consideration at all. If a failure to take account of these relevant considerations is demonstrated, it is not necessary for the applicants to show that the subsequent development must necessarily impact on the heritage items in Johnstone Street. If the relevant consideration might have materially affected the decision then that is sufficient to justify the Court setting aside the impugned decision ( Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 at 40).
Expert evidence on the potential impacts of possible developments may have some bearing on the exercise of the Court's discretion In this respect, however, the respondents would have to address themselves not to the best case scenario (that is, sympathetic development is possible), but to the worst case scenario (that is, unsympathetic development is such a remote possibility within applicable planning constraints that it barely warrants consideration). If the respondents could show that the potential heritage impacts of a future development were so unlikely to have influenced the decision that the court should not exercise its discretion to overturn the decision, this evidence would have some weight.
However, to the contrary, it appears from affidavit evidence that the heritage impacts may have had a significant bearing on the decision if the council had not misdirected itself as to the matters which it was obliged to take into consideration. The evidence shows that at the Committee meeting of 10 February 1998 at which consent was granted to the applications, the vote in favour of the development was a close one and that some of those who voted in favour did so with some reluctance. Councillors Hand and Sheehan state in their affidavits that had they been of the opinion that the development would have a detrimental impact on the significance of items of the environmental heritage they would have voted against it. There is a very real possibility that a consideration of potential heritage impacts may have swung the balance against the development. In my opinion, if the relevant consideration, which had not been taken into account by the collegiate body, had been taken into consideration then it might have materially affected the decision. That is sufficient to justify the court setting aside the decision. The right of carriageway
The applicants claim that the council failed to give proper consideration as to whether the right of carriageway to serve as a means of access to the proposed rear allotment was adequate. The applicants further submit that it was not reasonably open to the council to conclude that the access was adequate. Moreover, it is alleged that the consideration by the council of this issue was based upon information that was wrong in fact, that errors of fact which lead to or contribute to a wrong decision are reviewable and the true facts relating to the right of carriageway, if known to the council, might not have led to the decision to consent to the development.
The report on the applications prepared by Ms Tonner and which was considered by the council's Building and Development Committee sets out the following comments, apparently furnished by the council's engineers: Traffic The following comments are offered in relation to the residential subdivision at 27 Annandale Street, Annandale:
It is noted that the proposed lot two at the rear of the property is to have access via the extension of the existing right-of-carriageway (ROC) between the residences No's: 25 and 27 Annandale Street.
The existing ROC is to be extended with a 6.0 m area between the two proposed allotments. This new area is large enough to enable motor vehicles to manoeuvre into and out of future car parking spaces within the two lots.
It should be noted that the existing ROC does not strictly comply with the current Australian Standards for driveway access. The minimum width required in this instance would be 2.9 m plus an additional 0.3 m on either side of vertical obstructions. This would give a total width requirement of 3.5 m between the two buildings. Clearly, the existing ROC does not meet this standard.
There is approximately 2.6 m available width between the two buildings or 2.4 m width for the existing ROC. The base width of the 99th % vehicle is slightly less than 1.9 m. Therefore, with careful low speed manoeuvring, it should be possible to negotiate the ROC to gain access to the new proposed lot.
However, emergency vehicles used by the NSW Fire Brigade are 2.5 m wide and cannot travel up the existing ROC.
Information provided by the NSW Fire Brigade indicates that the basic width requirement for a private access road is 4.0 m with a minimum width of 3.0 m between vertical obstructions such as main gates. Conclusion:
The existing ROC does not comply with the current Australian Standards for driveway access. However, a motor vehicle is able to negotiate the access way to gain access to the proposed new lot.
Emergency vehicles will not be able to travel along the ROC as they are wider than the distance between the existing homes.
Mr Ayling submits that the statement as to the available width of the right of carriageway is factually wrong. He tendered a survey plan which shows that whilst the right of carriageway is nominally 2.4 m wide there are obstructions in the form the service pipes attached to the buildings at Nos. 25 and 27 and an awning attached to No. 25 which reduce the effective width of the carriageway to 2.16 m.
As the judgment in Coal & Allied Operation Pty Limited to which I have referred shows, a court may set aside an administrative decision in proceedings by way of judicial review if the decision-maker mistakes the facts. I am not satisfied, however, that the applicants have discharged the onus of showing that the council in this case was mistaken as to the facts. The existence of obstructions within the right of carriageway and the difficulties of access were drawn to the council's attention. The written objection of Danny Sampson and Monica Hauber, two of the present applicants, states (inter alia ): We have serious reservations regarding a subdivision which has no street frontage and where the only vehicular access is via a narrow joint right of carriageway. We note that due to the narrow access, this joint right of carriageway is - -used infrequently - cannot be used by large cars or trucks We would like to point out that, despite the current infrequent use of the joint carriageway by motor vehicles, on several occasions the plumbing or downpipes on the walls of the adjoining dwellings (27 Annandale Street and our own house at 25 Annandale Street) has been hit and damaged by motor vehicles. This damage was due to the difficulty of access via a narrow carriageway and it seems likely that more damage will occur if the frequency of use of the joint carriageway is increased.
The report of Ms Tonner which was prepared for the council's Building and Development Committee summarises the submissions of objections to the development. That summary includes the following: Width of the Right of Carriageway is inadequate. Plumbing and downpipes on the exterior of the building are damaged due to vehicles using entrance.
The report also contains the following statements: Council's Building Surveyor has advised that the subdivision complies with the fire safety requirements. However, comments from the traffic engineer advise that emergency vehicles will not be able to travel along the right-of-carriageway as they are wider than the distance between the existing homes. … The width of the right of carriageway is narrow, however a vehicle can gain access to the rear of the site. A small truck on the other hand would not get access to the rear due to pipes which protrude 14 cm from the exterior walls. Emergency service vehicles such as police vehicles and ambulances can gain access to the site however, fire trucks would not be able to gain access.
The objectors who had written to council objecting to the application were afforded an opportunity of addressing of Building and Development Committee when it considered the application. The objectors who addressed the Committee, particularly Ms Hauber, referred to the width of the right of carriageway as being " not wide enough for regular car access " and said that there would have to be parking on the street.
In the light of the above evidence I am not satisfied that the applicant has demonstrated that the council must have proceeded on the basis that it did not appreciate or understand the facts relating to the right of carriageway.
Even if I were wrong, I would not, in the exercise of the court's discretion, set aside the council's determination on this ground. The evidence of Mr Threlfo, the town planning consultant called by the second, third and fourth respondents, shows that the position is not as bad as the applicants suggest. That evidence shows that the services pipes which reduce the available width of the carriageway to 2.16 m are at a height which is below the widest part of motor vehicles, being the wing mirrors. The awning which protrudes into the right of carriageway is also at a height which does not interfere with a passage of ordinary motor vehicles. In his affidavit, Mr Threlfo states: The difficulty of access for emergency vehicles along ROC is also not uncommon in this area. The same circumstances would apply to many other residential properties in Annandale. … It is not uncommon practice for Leichhardt Council to approve new dwellings, without any requirement for off-street parking … In my opinion, it would be consistent with Council's policy and practice for Council to approve the subdivision, even if vehicular access was not available to the proposed rear lot. … Therefore, a development which results in a dwelling, the occupants of which park a vehicle on the street, is not out of character which the prevailing form of residential development in Annandale in particular and inner suburban areas in general. On Wednesday, 25 August 1999, at approximately midnight, I carried out a parking survey in the vicinity of the site. There were 12 unoccupied kerbside parking spaces in Annandale Street within 40 m of the site. This indicates that there is a reasonable supply of street parking to serve the needs of houses in this part of Annandale Street. The motor vehicle I own is a Toyota Camry station wagon, 1992 model. I have driven this vehicle into the ROC and reversed back out into Annandale Street. This activity required a certain amount of care to be taken, but it was not particularly difficult to carry out this manoeuvre. In my opinion, the difficulties of access do not constitute a reason to justify refusal of an application for subdivision of the land. The existing house on the premises comprises three flats. It is a condition of approval that this building be converted to a single dwelling. The rear lot is capable of accommodating either one or two dwellings. Therefore, the number of future dwelling on the property would be no more than three - that is, there is no likely increase in the number of dwellings on the whole site.
In his oral evidence Mr Threlfo said: Since swearing the affidavit I have on two occasions driven my vehicle in a forward direction to the rear building line of the two buildings which is effectively the full length of the right of way and reversed back out onto Annandale Street. It's a fairly straight forward manoeuvre in a forward direction. It requires a certain amount of care to reverse out...
In short, I am not satisfied that the council was unaware of the difficulties of access to the proposed rear allotment. It was aware that the right of carriageway was substandard. It was reasonably open for the council to approve a development with a substandard driveway access if it so chose. Even if the council's decision was based upon a mistaken view of the facts (and I am not satisfied that it was so mistaken) then the evidence of Mr Threlfo to which I have referred would not cause me to exercise the court's discretion in striking down the council's determination on this ground. Denial of procedural fairness
The second applicant in these proceedings, Mr J Knowles, sent a letter of objection to the council towards the end of October or the beginning of November 1997. He did not hear further from the council and did not receive an acknowledgment of his letter. He did not receive a letter from the council notifying him about the meeting of the Building and Development Committee at which the applications were considered. He states in his affidavit that had he been aware of the meeting he would have attended and raised the objections which he had to the development.
Ms Tonner states in her affidavit that searches have been made of the council's records which have disclosed that the council never received a letter from Mr Knowles making a submission in relation to the applications. A number of other letters of objection to the development had been received by the council. Those objectors had been notified of the date of the Building and Development Committee meeting, had attended that meeting and addressed the Committee.
Mr Ayling concedes that if the council did not receive Mr Knowles's letter then it is difficult to support an assertion that Mr Knowles was denied procedural fairness.
I have no reason to doubt that the council's file is complete. The absence of any letter of objection from Mr Knowles leads to the conclusion that the council has not denied him procedural fairness. This ground of challenge to the validity of council's determination also fails. Costs
Mr C McEwen, who appears for the council, has asked that in the event that the applicants are successful, costs should be reserved. Orders
No submissions were made in relation to the application for subdivision under the Local Government Act. The invalidity of the development consent, however, means that the subdivision approval under that Act cannot proceed. I make no finding in relation thereto.
I make therefore the following declaration and orders: (1) A declaration that the development consent granted upon development application 508/97 by the first respondent on 10 February 1998 in relation to the property known as 27 Annandale Street, Annandale, is void. (2) Order that the first respondent be restrained from signing, approving, releasing or dealing with any plan of subdivision purported to be prepared pursuant to the development consent. (3) Order that the second, third and fourth respondents be restrained from developing and subdividing the property pursuant to the development consent. (4) The question of costs is reserved. (5) The exhibits , other than Exhibit D, may be returned. (6) I grant liberty to any of the parties to apply.

Thomson J & (3) Ors v Leichhardt Municipal Council &

At a glance

Court

Decision date

Before

Source

Judgment (9 paragraphs)

Parties

Cases Cited (5)

Cited By (2)