Toth v Campbelltown City Council

Hoskins was essentially a challenge to the attribution of weight given to a draft LEP and a DCP by a Commissioner of this Court. One of the grounds in the case alleged that the Commissioner had erred in failing to apply the DCP in that case (DCP 24). The Commissioner had stated that, "DCP 24 is so inconsistent with the LEP that I have given little weight to it" . Lloyd J held that the Commissioner had not erred in law stating that "[h]aving fully considered the effect of DCP 24, the Commissioner was fully entitled to give it little or no weight" .

In Flevaris Lloyd J again had to consider, amongst other things, whether there had been an error of law in relation to misattribution of weight given to a DCP. Once again, in that case the provisions in the LEP and DCP were held by the Commissioner to be fundamentally inconsistent such that the provisions of the LEP prevailed. Lloyd J held that such a finding was open and there was no error of law disclosed.

The Applicant relied on these two cases to argue that there was an appropriate basis for the Applicant's submissions to the Commissioner that little or no weight should be attributed to DCP 122 because of the flaws in the process of making DCP 122 and he had a legal duty to consider those submissions. The steps in the process of making DCP 122 were flawed and so inconsistent that the same principles as applied in Hoskins and Flevaris also applied in this case.

Grounds (ii) and (iii) essentially flow from ground (i). In relation to ground (ii) the Applicant argued that having considered DCP 122 the Commissioner also had a duty to consider the Applicant's submissions regarding the fundamental flaws in the plan-making process as was required by s 22 of the Court Act. The Commissioner clearly failed to do so in his decision.

In relation to ground (iii) the Applicant argues that the Commissioner failed to give any reasons for matters raised for determination, namely the matters raised in grounds (i) and (ii). The Applicant argued the failure to give reasons constituted an error of law and relied on Westport Marina Developments Pty Ltd v Concord Council (2000) 109 LGERA 451 at [28], amongst other cases. The Applicant submitted this was a matter central to the Commissioner's decision and reasons should have been given. The Applicant argued this was not a case of taking a fine tooth comb approach as warned against in Brimbella Pty Ltd v Mosman Municipal Council (1993) 79 LGERA 367 , there simply had been no words used, no reasons given at all in his decision.

I intend to largely adopt the submissions of the Council made at the hearing in dismissing this appeal. The issue of the imperfections in the making of DCP 122 raised before the Commissioner are clearly matters going to the validity of that DCP. This ground was expressly abandoned by the Applicant at the hearing. The alleged flaws in the process of making DCP 122 are not of the same character as the differences between the LEP and the DCP which Commissioners of this Court have had to consider in Hoskins and Flevaris . Clearly in those cases the two documents in question could not stand together, essentially the issue was of a different legal nature.

I do not therefore consider there is any validity in the Applicant's submissions in relation to ground (i). The Applicant must also fail in its arguments in relation to ground (ii), that the Commissioner had a statutory duty to determine all matters in controversy between the parties. Given my finding on ground (i) there was clearly no obligation on the Commissioner to do so. In the absence of a duty to determine a question of law the Commissioner has no duty to give reasons in relation to that question so the Applicant also fails on ground (iii).

It seems to me that it is important to view the Commissioner's decision as a whole as, even if I am wrong in my finding that the Applicant fails on its grounds of review, unless that error has materially effected the decision it would not, in any event, vitiate the Commissioner's decision. I was referred to a case by the Council's counsel which I will rely on, Guideline Drafting and Design v Marrickville Municipal Council (1988) 64 LGRA 275, on this point .

I note that in par 42 of the Commissioner's judgment the matters in DCP 122, in particular cl 9 and 12, were considered to be part of the range of considerations under s 79C of the Environmental Planning and Assessment Act 1979 and on that basis the Commissioner stated that they be given some weight. In par 66 of his decision the Commissioner sets out those matters on which he relied in his decision including factors under s 79C and no mention is made in that paragraph of DCP 122. It is clear that the primary basis on which Commissioner Brown made his decision were matters other than DCP 122.

Further, I also note that the Commissioner specifically referred in his decision to the submission put by the Applicant that the DCP should be given little weight because it had been made after the DA was made, this is at paras 41 and 42 of his decision. While this is another ground for argument raised by the Applicant and is different to that alleged in the grounds of review before me today it is relevant in the context of reading the overall judgment of the Commissioner in relation to how he considered DCP 122.

In all these circumstances I do not consider that the errors alleged by the Applicant in grounds (i) and (ii) would have materially affected the Commissioner's decision, assuming that I had found that he had made such an error. I think the statements of Kirby J in Brimbella to the effect that a fine tooth comb approach to appeals of this nature is not appropriate, are particularly apt in this case. A Commissioner in a merit appeal is not expected to refer to every issue where that issue is not central to the matters in issue, as this issue is not. Accordingly the appeal is dismissed.

Orders The Court orders: 1. The Applicant's s 56A appeal is dismissed. 2. The Applicant is to pay the Respondent's costs. 3. Order 2 is stayed for seven (7) days and the parties are granted leave to approach the Court within that seven (7) days if they wish to apply to vary Order 2. 4. The exhibits may be returned.

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