Todbern Pty Limited v Hurstville City Council and Anor.

In adjudicating upon the competing submissions, I am here chiefly concerned with the proper interpretation of cl D3.2 of the BCA. Clearly par (c) is concerned with "external access" to the building, in contrast to internal access "within the building" (the latter subject being apparently dealt with by cl D3.2(a) and the accompanying Table and by cl D3.3).

Accordingly, the crucial question that arises in respect of the requirement for "external access" to the building is to determine the point or place by reference to that building, that is intended to be governed by the requirement for "accessible" external access. Is it from a public place (road or footpath) adjoining the allotment of land upon which the building is erected or is it at any point along the boundary of the allotment or is it by reference to some other point or place?

In answering these questions, in quest of the proper construction of cl D3.2, it is legitimate to have regard to the objectives and functional statements expressed in cll D01 and DC1 respectively by virtue of cl 1.0.6 of the BCA which provides:

The Objectives and Functional Statements may be used as an aid to interpretation.

The objectives relevantly include the following: (a) to provide, as far as is reasonable, people with safe, equitable and dignified access to - (i) a building; and (ii) the services and facilities within a building

The relevant functional statement is as follows:

A building is to provide as far as is reasonable - (a) safe; and (b) equitable and dignified access for people to the services and facilities within

With the assistance of these provisions, I am of the opinion that properly construed, the requirement that there be accessible external access to the Super-Centre building "from the allotment boundary at the main points of entry" is a requirement in the present case for such access from the boundary of lot 4 with Forest Road.

Despite the fact that the northern boundary of the leasehold upon which the Super-Centre is erected is recessed up to 20 metres from Forest Road, the fact that the lessee enjoys rights of footway over that part of lot 4 in Deposited Plan 869014 which has a boundary (9 m in length) to Forest Road, means in my judgment, that that boundary is relevantly "the allotment boundary", rather than is the leasehold boundary.

Accordingly, I would reject this additional appeal ground advanced by the Applicant.

For similar reasons, I must also reject the Applicant's additional appeal ground based upon cl D3.2(c)(iv). Having held that the boundary of lot 4 in DP 869014 relevantly constitutes the "allotment boundary" for the purposes of cl D3.2(c)(i), it is but a short and logical step to hold that that boundary can, as a matter of law, also qualify as the "principal public entrance" for the purpose of cl D3.2(c)(iv).

Since Assessor Hussey has held (albeit with some uncertainty or qualification) that the Forest Road boundary is or may be the "principal public entrance" to the Super-Centre development, that factual finding is in my judgment unassailable on an appeal limited to error of law.

For all of the foregoing reasons, I hold that the Applicant has not established its additional appeal grounds.

Although I have already held that except for ground 2 (the Commissioner's failure to consider the Applicant's objection under the LG Act, s 82), the original appeal grounds would not, even if fully established, result in a successful appeal, I should in deference to the competing arguments and in fairness to the Commissioner, deal with grounds 1, 3, 4 and 5 of the original appeal grounds, albeit very briefly.

Firstly, grounds 3 and 4 necessarily must be held to fail in view of my rejection of the Applicant's additional appeal grounds.

Secondly, ground 1 has not been established inasmuch as I am satisfied that the Commissioner's judgment on the merits did not involve any default in terms of the application of the BCA, particularly since the Applicant did not proffer any "alternative solution" within the meaning of the BCA.

Finally, ground 5 has not been substantiated since clearly, the Commissioner had no power to impose upon State Rail (which was not a party to the proceedings) any financial or other obligations (even ones shared with the developer) in relation to the provision of a lift facility from Forest Road to the concourse level.

It remains for me to consider the Applicant's legal complaint that the Commissioner did not consider the Applicant's objection under the LG Act, s 82.

That objection (Exhibit J) in terms was premised upon a finding (such as was ultimately made by the Commissioner in his judgment) that the Forest Road boundary was the relevant "main point of entry" and "principal public entrance".

Although I have much sympathy for the Commissioner by virtue of the very uncertain state that the parties left the Applicant's objection pursuant to the LG Act, s 82 at the end of the hearing, I have nonetheless concluded that the Commissioner should have entertained the objection and that his failure to do so means that he has not completed his adjudicative function in the proceedings. In so concluding, I reject the second Respondents' submission that in his judgment the Commissioner must be taken to have dealt with, and rejected, the objection. This is to read far too much into the judgment.

Although that failure may not involve any ultimate disturbance of the Commissioner's decision to dismiss the s 176 appeal, nonetheless in order that the outstanding adjudication be properly undertaken, it will be a necessary precaution to order that the Commissioner's decision be set aside so that he may proceed to complete his adjudication by determining whether or not the objection under the LG Act, s 82 should be upheld.

In so concluding, I would reject the Respondents' submissions that there was no jurisdiction for the Court to entertain the objection. A number of reasons were advanced in support of this submission - (i.) the objection under s 82 was incompetent because it was not made to the Council by "an applicant for an approval" since the objection only came into existence post the Council's decision to grant the building approval; (ii.) the Court is not vested with any jurisdiction in respect of an objection pursuant to the LG Act, s 82; (iii.) the concurrence of the Director General as required by s 82(3) was not sought; (iv.) s 82 does not permit the making of a "retrospective" objection; (v.) no appeal was brought to the Court in respect of the objection.

In my respectful judgment, these cogent arguments do not prevail to excuse the failure to determine the s 82 objection.

My reasons for so concluding can be briefly stated as follows: (i.) By instituting the appeal pursuant to s 176 of the LG Act, the Applicant vested the Court with jurisdiction to hear and dispose the appeal against the Councils' determination of the Applicant's application for approval; (ii.) Even though the parties litigated the appeal by confining attention to the imposition of Condition 42, in legal theory and fact, the whole of the Council's determination was before the Court, and it remained legally possible for the Court's decision to disapprove the application altogether notwithstanding the Council's conditional approval: see the LG Act, s 101(2) and (3). (iii.) It follows from propositions (i) and (ii) that the Applicant before this Court was relevantly an "applicant for approval" within the meaning of the LG Act, s 82(1); (iv.) By virtue of the LEC Act, s 39(2), the Court in hearing and disposing of the appeal had all of the functions of the Council's in relation to the subject matter of the appeal, (ie the application for approval) and those functions included the function of considering an objection pursuant to the LG Act, s 82 (which apparently had been filed on the Council's Solicitor's some months before the hearing by the Commissioner).

For all the foregoing reasons, the appeal must succeed, but only in respect of ground 2 of the original appeal grounds.

In respect of all other grounds (including the additional appeal grounds), the appeal fails for the reasons I have given.

In consequence of these conclusions, the appeal must be allowed and the proceedings must be remitted to Commissioner Hussey for him to adjudicate upon the Applicant's objection pursuant to the LG Act, s 82.

Accordingly, I make the following orders:

1. Appeal allowed.
2. Set aside the orders made by the Commissioner in his judgment of 19 July 2000.
3. Remit the proceedings to the Commissioner for the completion of the outstanding adjudication required in respect of the Applicant's objection pursuant to the LG Act, s 82 (as set forth in Exhibit J).
4. Exhibits be retained in the Court file.
5. Question of costs be reserved.

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