Tricon Services Group Pty Limited v Manly Council

Land and Environment Court (NSW)|2011-12-16|Before: Preston CJ, Mr P, Mr J

The nature of the appeal 1Tricon Services Group Pty Limited ("Tricon") wishes to construct a commercial/residential development at 46-48 North Steyne, Manly. Tricon lodged a development application with Manly Council to carry out the development. The Council refused consent. Tricon appealed to this Court. The Court, constituted by the Acting Senior Commissioner, dismissed the appeal and refused consent, delivering an ex tempore judgment: see Tricon Services Group Pty Limited v Manly Council [2011] NSWLEC 1271. 2Tricon appealed under s 56A(1) of the Land and Environment Court Act 1979 ("the Court Act") against the orders and decision of the commissioner. Such an appeal is limited to orders and decisions "on a question of law". 3The essential first task in an appeal under s 56A(1) of the Court Act is to identify the decision, whether express or implied, on a question of law. Without the existence or identification of such a decision, the Court (constituted by a single judge) will have no authority or jurisdiction to review the decision made by a commissioner: see Edyp v Brazbuild Pty Ltd [2011] NSWCA 218 at [33], [35].

The outcome of the appeal 11I have determined that Tricon has established that the Commissioner erred on a decision on a question of law in that the Commissioner misconstrued and asked himself the wrong question under the Business Zone DCP. This finding involves, in effect, upholding grounds 1 and 3 and the part of ground 4 that challenges the factual finding based on the incorrect construction of the Business Zone DCP, although on the basis of a different construction to that contended for by Tricon. 12In light of this finding, it is not necessary to consider the other part of ground 4 or the alternative ground 5. I reject ground 6. 13The appeal should therefore be upheld and the matter remitted to the Commissioner for redetermination according to the decision of the Court.

The facts relevant to the appeal 14Tricon's proposed five-storey building at 46-48 North Steyne would sit between the adjoining five-storey building to the south at 43-45 North Steyne and the adjoining six to eight-storey building to the north at 49-53 North Steyne. The building height of the adjoining building to the south at the common boundary with the Tricon site is 15.25 m and the building height of the adjoining building to the north at the common boundary with the Tricon site is up to 17.45 m. (Mr Winnacott in the Joint Planning report, pp 8-9 and para 24 of the Commissioner's reasons). 15Tricon's proposed building and the adjoining buildings front North Steyne and have rear access from Henrietta Lane. Across Henrietta Lane to the west is the Pacific Waves building, a residential tower at 9-15 Central Road. The residential units on levels 4, 5 and 6 of the Pacific Waves building currently have views towards the ocean over the existing, lower buildings on the site (para 21 of the Commissioner's reasons). Tricon's proposed building would eliminate or reduce the views currently available from these levels of the Pacific Waves building (para 30 of the Commissioner's reasons). 16The Tricon site is in the Manly Town Centre locality in the Business Zone DCP. A height control map in the section "Maximum Building Height" of the Business Zone DCP specifies the Tricon site as having a maximum building height of 10 m towards North Steyne and 12 m towards Henrietta Lane. 17The building height of Tricon's proposed building would, at the front, be greater than the 10 m maximum building height limit specified on the height control map by up to 2.7 m and, at the rear, be greater than the 12 m limit by up to 3 m (Mr Layman in Joint Planning Report, p 9 and para 23 of the Commissioner's reasons and see also p 4 of Mr Layman's statement of evidence and Section A-A of the plans). There is a lift overrun in the middle of the building at a height of between 15.4 m and 15.6 m above ground level (Joint Planning Report, pp 9-10). 18Tricon's proposed building would have a building height (except for the lift overrun) which would equate with the building height of the adjoining building to the south and would be lower than the building height of the adjoining building to the north (Mr Winnacott in Joint Planning Report, pp 4-9).

The provisions of the Business Zone DCP to be considered 19The Council as the consent authority, and the Court on the appeal exercising the Council's functions, were required to take into consideration, in determining Tricon's development application, the matters in s 79C(1) of the EPA Act of relevance to the development. One of those matters is any applicable development control plan (s 79C(1)(a)(iii) of the EPA Act), which in this case includes the Business Zone DCP. 20Taking into consideration a development control plan requires that the development control plan, and any relevant and applicable provisions and standards in it, be a fundamental element in or focal point of the decision-making process: Zhang v Canterbury City Council [2001] NSWCA 167; (2001) 51 NSWLR 589 at 602 [75], 603 [77]. To substitute for applicable provisions and standards of a development control plan a different approach, is to fail to take into consideration the development control plan: Zhang v Canterbury City Council at 602 [76] and Botany Bay City Council v Premier Customs Services Pty Ltd [2009] NSWCA 226; (2009) 172 LGERA 338 at 345 [26], 346 [32]. 21The Business Zone DCP applies to all land zoned Business under the Manly Local Environmental Plan 1988. The Business Zone DCP is divided into four parts corresponding to the four different localities in which Business zoned land occurs. One of the localities is the Manly Town Centre, dealt with in Part 1 of the Business Zone DCP. Part 1 contains provisions specifying controls and standards in the Manly Town Centre. Two sets of provisions regulate building height. The first is in section 1.2 "Building Heights" and the second is in the section "Maximum Building Height" which includes a height control map. 22The section "1.2 Building Heights" provides: " 1.2 Building Heights

The maximum wall height of a building, shall not exceed 15 metres except where: (i) a lesser or greater height is specified on the height control map; or (ii) a lesser or greater height provides a better relationship to adjoining development in terms of fulfilling the Council's townscape objectives; (iii) the Council agrees to the addition of plant rooms, lift overruns, pitched roofs or the like.
The Council will only agree to increases in building height as detailed in 1(iii) above where it is satisfied that: (i) the structures are designed as an integral part of the building in such a way as to appear an appropriate part of the overall townscape and not conflict with overall townscape objectives; (ii) any roof space is not designed or used as habitable space.
In relation to item 1(ii) above the Council is seeking in its townscape objectives to ensure that the height of new buildings equate with both the overall height and the height of particular architectural details (e.g. floor levels, parapet details) of adjoining buildings and the important end-buildings in the particular street block. This will often require greater floor to ceiling heights than the minimum permitted in current building regulations. The use of internal mezzanine levels should be considered in order to achieve the desired height levels where necessary.
The Council will consider allowing new development to be constructed to the same building envelope as existing buildings on a site in order to maintain interest and variety provided the other objectives and requirements (including floor space ratios) of this plan are achieved." 23The section "Maximum Building Height" provides: "Maximum building height is as indicated (metres above existing ground level). In general, final building height, including architectural embellishments, should not dominate the heights of end (corner) buildings in the same street block or that of adjoining buildings. There is opportunity for new development to be constructed to the height of existing, non-complying buildings (refer Clause 2(iv)). Special design controls apply to the Council car park site in Wentworth Street, refer to the Wentworth Street Development Site Urban Design Controls adopted by Council on 28th July 1997." 24The reference to "Clause 2(iv)" in the third paragraph of this section on "Maximum Building Height" is a typographical error. It is likely that it is a reference to para 4 of the section 1.2 "Building Heights" which deals with the Council allowing new development to be constructed to the same building envelope of existing, non-complying buildings. 25The two sets of provisions regulate different aspects of building height. Section 1.2 "Building Heights" regulates the wall height of a building while the section on "Maximum Building Height" regulates the overall building height. "Wall height" is defined in Section E "Interpretation" to mean "the distance from the existing ground level to the top most part of the external wall measured at any point along that wall." The maximum wall height of a building can never exceed, and is likely in most instances to be less than, the maximum height of the building.

The competing constructions of the parties and the Commissioner of the height control provisions 26The construction of the height controls in section 1.2 "Building Heights" and the section "Maximum Building Heights" is critical to the determination of the appeal. The parties put forward differing constructions before the Commissioner and the Commissioner preferred yet another construction again. Tricon's first, third and part of the fourth grounds of appeal are all founded on the Commissioner not adopting what Tricon submitted was the proper construction of the height controls in the Business Zone DCP. 27As I understand it, Tricon's construction is that if the circumstance in para (ii) of cl 1 of section 1.2 "Building Heights" is engaged, then, first, the maximum wall height of 15 m specified in cl 1 does not apply; secondly, the maximum building height specified on the height control map in the section "Maximum Building Height" does not apply; and thirdly, the maximum wall height of the proposed building is controlled by the wall height of buildings on adjoining sites (Mr Winnacott in Joint Planning Report, pp 6-8, as summarised in para 25 of the Commissioner's reasons). In effect, Tricon submits, cl 1 is taken to read in this circumstance: "The maximum wall height of a building shall not exceed the height which provides a better relationship to the wall heights of adjoining development in terms of fulfilling the Council's townscape objectives". 28Tricon's case was that the proposed building matched the height of the adjoining building to the south and would be below the height of the building to the north, and satisfied the Council's townscape objectives. Hence, the proposed building satisfied para (ii) of cl 1, and thereby satisfied the height control in cl 1 (which displaced the building height control under the height control map) (Mr Winnacott in Joint Planning Report, pp 8-9). 29The Council's construction at the hearing was put by the Council's expert planning witness, Mr Layman. The Council's construction was that if the circumstance in para (i) exists, that is to say, a lesser or greater height for the site is specified on the height control map, then, first, that lesser or greater height becomes the maximum wall height for the proposed building instead of the 15 m specified in cl 1; and secondly, the opportunity in para (ii) for a lesser or greater height that provides a better relationship to adjoining development in terms of fulfilling the Council's townscape objectives, does not arise because the height is fixed by para (i) (see Mr Layman's statement of evidence dated 21 July 2011 (Exhibit 3), pp 3-4, and Joint Planning Report, pp 9-10, as summarised in para 25 of the Commissioner's reasons). 30The Council's case was that lesser heights were specified in the height control map for the Tricon site, being 10 m at the front and 12 m at the rear. Tricon's proposed building breached these limits as the maximum building height was 12.7 m at the front and 15 m at the rear (Mr Layman in Joint Planning Report, p 9). 31The Commissioner decided that neither Tricon's nor the Council's construction was correct. The critical passages from the reasons for judgment explaining the Commissioner's construction and his application of this construction to the facts are contained in paras 26-32: "26 In balancing the different approaches of Mr Layman and Mr Winnacott in the interpretation of the DCP, I am satisfied that neither Mr Layman nor Mr Winnacott have correctly interpreted the DCP although I ultimately accept the conclusions of Mr Layman. In my view, the starting point in considering the question of height is the maximum building height map referred to in cl 1.2. The clause provides for a maximum wall height of a building of 15 m except where another height is identified on the height control map. In this case, the map specifies a height of 10 m and 12 m for the site. I have taken the 10 m and 12 m heights to mean those heights identified in the diagrams accompanying cl F in the DCP and identified as "stated height limits". 27 Contrary to Mr Layman's evidence, I do not agree that this is the end to the question of the appropriate height for the site. Clause 1.2.1(iii) [sic, should be 1.2.1(ii)], in my view, still applies and provides the opportunity for a greater or reduced height if the change in height "provides a better relationship to adjoining development in fulfilling the council's townscape objectives." Such an approach is consistent with the diagrams accompanying cl F of the DCP. 28 At this point I depart from the approach adopted by Mr Winnacott. I do not accept that the townscape objectives should be given primacy over other planning considerations in the DCP. The DCP clearly does not advocate this primacy. To adopt Mr Winnacott's approach would be to largely ignore other relevant matters in the DCP, in this case, the loss of views from the Waves building. Clause C4 of the DCP makes a specific reference to the need to" have regard to the objectives and relevant controls from Council's DCP for the Residential Zone." The broader consideration required by s 79C(1)(b) of the Environmental Planning and Assessment Act 1979 relating to "the likely impact of that development on the built environment" is also relevant. In coming to this conclusion it does not necessarily follow that any impact on views would warrant the refusal of the application. The question to be answered, in this case, is whether the impact on the views from the Waves building is so significant that, on balance, this impact would outweigh the impact on the townscape by restricting a building on the site to the 10 m and 12 m height limits. 29 In my opinion, the answer to this question should be yes. Using the view assessment principles in Fig 14 of cl 4.3 of the Residential DCP, the first three steps in assessing view impact; being the assessment of views to be affected, what part of the property the views are obtained and the extent of view impacts are agreed by Mr Layman and Mr Winnacott based on Mr Jago's photomontages. The fourth step; being the reasonableness of the proposal that is causing the impact was the significant difference between Mr Layman and Mr Winnacott. Having found that there is no obligation in the DCP to maintain a similar height to adjoining buildings, the conclusions of Mr Layman are more appropriate in terms of view loss impact. 30 I agree that the impact on views from Levels 4, 5 and 6 is unacceptable. From unit 407 all water views would be lost, but a 10 m and 12 m building would likely provide a view of the horizon. From units 506 and 507, at best, the horizon may be visible. However, with a 10 or 12 m building, a significant band of water would be retained. The loss of water views reduces with height and units 606 and 607 m would likely lose the wave area near the beach while retaining the more distant water views to the horizon. The loss of views, in my opinion, could be described as severe for Levels 4 and 5 and moderate for Level 6. 31 This impact needs to be compared to the potential impact on the townscape. With the benefit of the site inspection, I accept that a building that satisfies the 10 m and 12 m height requirement would have only a minimal impact, if any, on the townscape. The views from different parts of North Steyne and the beach will be dominated by the street faade and upper levels. The proposal will provide consistency with adjoining buildings, even accepting that the streetscape of North Steyne represents only a part of the broader concept of townscape. While the upper levels of the building will be visible from some locations in the Manly Town Centre, I generally accept that the differences in overall height with adjoining properties will not have any unacceptable impacts on the townscape. I do not accept that a building of 10 m and 12 m in height will offend the townscape objectives. 32 I note that there is no obligation to have a building that replicates the height of adjoining buildings; the DCP providing a range of tests including the buildings being "complementary", "match" and "equate" with existing buildings. There well may be instances where a building height may be increased to address the townscape objectives through the opportunities provided in the DCP, however, I do not accept that it is appropriate in this case because of the unacceptable impact on the view loss from some levels of the Waves building." 32The steps in the Commissioner's reasoning can be distilled as involving the following: (a) The maximum wall height of a building shall not exceed 15 m except where another height is identified on the height control map, in which case, by operation of para (i), that other height becomes the maximum wall height (para 26). This step accepts the Council's construction. (b) However, para (ii) provides an opportunity to adopt a greater or reduced height to the height identified on the height control map if that different height provides a better relationship to adjoining development in terms of fulfilling the Council's townscape objectives (para 27). This step rejects the Council's construction but partially accords with Tricon's construction. (c) The question of whether to adopt the different height to the height identified on the height control map is to be answered by reference not only to the townscape objectives but also to other planning considerations in the Business Zone DCP (including those in the Residential Zone DCP incorporated by reference by cl 4 of Section C of the Business Zone DCP), including of relevance to Tricon's proposed building, the impact of views from the Pacific Waves building (para 28). This step led the Commissioner to frame the question to be answered in this case as "whether the impact on the views from the Waves building is so significant that, on balance, this impact would outweigh the impact on the townscape by restricting a building on the site to the 10 m and 12 m height limits." (para 28). This step was not advocated by either Tricon's or the Council's constructions. (d) On the facts, the question posed should be answered "yes" (para 29). The impact of Tricon's proposed building on views from levels 4, 5 and 6 of the Pacific Waves building is significant and unacceptable (para 30) and outweighs the minimal impact on the streetscape that would result from a building that satisfies the 10 m and 12 m height requirements instead of Tricon's proposed building which would be higher (paras 31 and 32).

The parties' submissions on the Commissioner's construction 33Tricon submits the Commissioner erred in each of the steps of his reasoning process. 34As to step (a), Tricon submits that the circumstances in paras (i) and (ii) are mutually exclusive - there can only ever be one maximum height for a single site. If para (ii) is engaged, then para (i) cannot apply: the height resulting from application of para (ii) displaces the height resulting from application of para (i), being the height specified on the height control plan. 35In this case, Tricon submitted, para (ii) was engaged and displaced para (i). Hence, the maximum height for the purposes of cl 1 was the height resulting from application of para (ii). The Commissioner was in error in deciding the maximum height for the purposes of cl 1 was the height of 10 m for the front and 12 m for the rear of the site, as specified on the height control map. 36As to step (b), Tricon submits the Commissioner's error flows from the error in step (a). Step (b) is that para (ii) provides "an opportunity" to increase or reduce the maximum height fixed by para (i). Tricon submits this staged approach of, first, fixing the maximum height by para (i), then evaluating the opportunity to depart from that maximum height by application of para (ii) is an erroneous construction of cl 1. Paragraphs (i) and (ii) are mutually exclusive so that if para (ii) is engaged, para (i) cannot be; hence, there can be no staged evaluation. 37As to step (c), Tricon submits, first, that it perpetuates the errors in steps (a) and (b) and, secondly, introduces extraneous considerations, being view loss, into the evaluation under para (ii). Consideration of view loss is neither expressly nor impliedly mentioned in cl 1. The determination under para (ii) of the height that has the better relationship to adjoining development in terms of fulfilling the Council's townscape objectives does not require or permit a weighing of the impact of view loss caused by having a building which has that height against the impact on townscape objectives by not having a building of that height. 38As to step (d), Tricon submits that the factual findings and conclusions are based on steps (a), (b) and (c) which involve error and hence are themselves erroneous. 39Notwithstanding that the Commissioner departed from the construction the Council advanced at the hearing, the Council on this appeal submitted that the Commissioner did not err in his construction and application of cl 1. The Council submitted that the Commissioner was required to do two things: first, interpret the height control and, secondly, decide whether the proposed height was appropriate having regard to that control. The Council submitted that in the second step of determining the appropriateness of the height of the building, the Commissioner had to consider the impact on the townscape of increasing the height and the consequential impacts on views caused by the increased height. The Council submitted that the Commissioner dealt with the first step of interpreting the control in paras 26 and 27 of his reasons and with the second step of evaluating the appropriateness of the building in para 28 (posing the question), paras 29 and 30 (assessing the view impacts) and paras 31 and 32 (assessing the impacts on townscape). 40I do not consider, however, that the Council has correctly summarised the Commissioner's approach in interpreting and applying the height control provisions. On my reading of the Commissioner's reasons, what the Council submits is the second thing the Commissioner was required to do, of evaluating the appropriateness of the building (the asking and answering of the question the Commissioner posed in para 28, in paras 29-32), is not posterior to but rather is an integral part of the Commissioner's construction and application of para (ii) of cl 1. 41In para 26, the Commissioner construed the chapeau of cl 1 and para (i), and applied his construction to the facts of the case, so as to fix the maximum wall heights for the building at 10 m and 12 m for the front and rear of the site respectively. In para 27, however, the Commissioner says that this is not "the end to the question of the appropriate height for the site" because para (ii) "still applies and provides the opportunity for a greater or reduced height if the change in height 'provides a better relationship to adjoining development in fulfilling the council's townscape objectives.'" (para 27). What the Commissioner then does is to evaluate whether Tricon's building should be afforded that opportunity under para (ii). The Commissioner's subsequent discussion, including asking and answering the question posed in para 28, involves that evaluation of whether there should be the opportunity for a greater height for Tricon's building under para (ii) than the heights fixed by para (i) by reference to the height control map (in paras 29-32).

The Commissioner's construction is in error 42I consider the Commissioner has erred in construing the height control provisions in the section 1.2 "Building Heights" and the section "Maximum Building Height" in the Business Zone DCP. However, the proper construction is not that contended for by either Tricon or the Council. Regrettably, I am of the view that the proper construction of the height control provisions in the Business Zone DCP differs from the constructions of each of the parties and the Commissioner. I will first explain what in my view is the proper construction of the height control provisions, together with my reasons. I will then identify where the Commissioner's construction differs from this proper construction and is in error. 43Clause 1 of the section 1.2 "Building Heights" imposes a prohibition on the maximum wall height of a proposed building exceeding 15 m. The prohibition applies "except where" any of the circumstances in paras (i) to (iii) exists. If one of the circumstances in paras (i) to (iii) exists, the prohibition on the maximum wall height of a building exceeding 15 m does not apply. In this circumstance, the maximum wall height of the building could exceed 15 m and then there would be no breach of cl 1 if the maximum wall height of the building did exceed 15 m. Importantly, the circumstances in paras (i) to (iii) are not sources of alternative maximum wall heights to the 15 m height specified in cl 1, where those circumstances exist. 44My reasons for preferring this construction of cl 1 are fivefold. 45First, this construction of cl 1 accords with the chapeau of cl 1: "The maximum wall height of a building shall not exceed 15 metres except where". The prohibition is on exceeding; the subject matter of the prohibition is the maximum wall height of the proposed building; and the reference point for determining exceedence is 15 m in height. The prohibition is subject to exceptions: "except where". Where the exceptions apply, exceedence is no longer prohibited: the maximum wall height of the building can exceed 15 m. 46Secondly, the circumstances in para (i) to (iii) all concern building height and not the wall height of a building (although the wall height is a component of building height). Paragraph (i) refers to the height specified on the height control map. This is the map in the section "Maximum Building Height" and the heights indicated are maximum building heights, not wall heights. Paragraph (ii) is ambivalent when construed alone, but becomes clearer when construed with cl 3 of section 1.2 "Building Heights", which explains the Council's intent for para (ii) of cl 1. Clause 3 refers to the "height of new buildings" and the "overall height" as well as the "height of particular architectural details", but not wall height. Both cl 1(ii) and cl 3 refer to the Council's townscape objectives. The townscape requirements refer to building height. Hence, cl 1(ii) is referring to the building heights of the proposed building and the adjoining development. Wall heights may be a component but cl 1(ii) and cl 3 are not restricted to wall heights. Paragraph (iii) refers to structures of a building that add to building height but not necessarily to wall height. This construction is corroborated by cl 2 of section 1.2 "Building Heights", which expressly refers to those structures detailed in cl 1(iii) as increasing "building height". 47The fact that the circumstances in paras (i) to (iii) refer to building height and not to wall height, means that the height that might result from the existence of any of the circumstances in paras (i) to (iii) cannot be substituted as a new maximum wall height for the 15 m specified in cl 1. Building heights resulting from application of one of the circumstances in paras (i) to (iii) are not interchangeable with the 15 m in cl 1, which is a wall height. 48Thirdly, the construction does not mean that building height becomes unregulated if any of the circumstances in para (i) to (iii) exist. To the contrary, the existence of one of the circumstances in para (i) to (iii) means that building height will have been regulated by that circumstance. For para (i), building height is regulated by the control and the height control map in the section "Maximum Building Height". For para (ii), building height is regulated by the relationship to the overall height and the height of particular architectural details of adjoining development to fulfil the Council's townscape objectives. For para (iii), building height is regulated by the need for Council's agreement to the addition of structures which increase building height. Indeed, it is the fact that building height will be regulated in these circumstances that provides the justification and rationale for the prohibition in cl 1 not being applicable. Regulation of building height in these circumstances necessarily regulates the wall height of buildings as the latter is a component of the former. 49Fourthly, this construction of cl 1 makes sense of the references in paras (i) and (ii) of not only a "greater height" but also a "lesser height". In para (i), the reference is to a lesser height specified on the height control map. For example, if the lesser height of 10 m is specified for a parcel of land on the height control map as the maximum building height, the maximum wall height could not exceed 10 m (and is likely to be less in most instances). In this circumstance, it would make no sense for the prohibition in cl 1 ("the maximum wall height of a building shall not exceed 15 m") to apply as the maximum wall height of the building (which would be required to comply with the maximum building height of 10 m) could not exceed 15 m. Conversely, however, the construction that specification of the lesser height of 10 m as a maximum building height on the height control map has the consequence of making the prohibition in cl 1 not applicable, does make sense. The wall height of the building, being a component of the building height, would be regulated by the control on the building height in the section "Maximum Building Height" and there would therefore be no need for the prohibition in cl 1 to apply. 50Similarly, this construction of cl 1 makes sense of the reference to a "lesser height" in para (ii). If para (ii) is engaged and a lesser height than 15 m provides a better relationship to adjoining development in terms of fulfilling the Council's townscape objectives, it makes no sense for the prohibition in cl 1 to apply as the proposed building with that lesser height could not exceed 15 m. Conversely, the construction that the prohibition in cl 1 is not applicable where the lesser height provides a better relationship to adjoining development does make sense. The wall height of the building, which is a component of the overall building height, will be regulated by the control of the relationship with the building heights of adjoining development. 51Fifthly, it is to be noted that cl 1 of section 1.2 "Building Heights" does not contain any words which provide that, in the event that one of paras (i) to (iii) apply, the maximum wall height of the building shall be the height resulting from one of those paragraphs applying. Clause 1 stands in contrast in this respect to the provisions regulating floor space ratio in the Business Zone DCP (in Section 1.1 "Floor Space Ratio"). Clause 1 of Section 1.1 provides "[e]xcept as provided in 3 below, the ratio of gross floor area of a building to the area of the site shall not exceed ....", then specifies particular floor space ratios for particular locations. The exception in cl 3 refers to particular properties and specifies different floor space ratios to those provided in cl 1. Indeed, cl 3 has its own internal exception: "The floor space ratio for the properties 25-33 South Steyne shall be 3:1 subject to the provision of an arcade leading from the Council's Wentworth Street properties to South Steyne. In the event that an arcade is not provided, the maximum floor space ratio shall be 2:1." 52The draftsperson of the Business Zone DCP was, therefore, aware of the drafting technique of providing alternative controls in the event that some exception applied. This drafting technique was used for the floor space ratio controls in section 1.1 but was not used for the height controls in section 1.2. This corroborates the construction that application of the exceptions in paras (i) to (iii) of cl 1 of section 1.2 "Building Heights" was not intended to result in a substituted maximum wall height for the height of 15 m specified in cl 1. 53With this construction of the height control provisions in the Business Zone DCP in mind, I turn to the Commissioner's construction. I will identify the errors by reference to my summary of the steps in the Commissioner's reasoning. 54Step (a) involves error in that the Commissioner considered that the heights of 10 m and 12 m specified in the height control map for the site (which are maximum building heights) became the maximum wall heights of the building instead of the 15 m specified in cl 1. Rather, application of para (i) had the effect of causing the prohibition on the maximum wall height of the building exceeding 15 m to not apply. 55Step (b) involved error flowing from step (a). Paragraph (ii) is not to be evaluated by reference to a height resulting from application of para (i). There is not a staged approach of, first, substituting for the maximum wall height of 15 m specified in cl 1, the height specified in the height control map and then, secondly, evaluating whether an opportunity should be afforded to the proposed building to increase or reduce that height so as to provide a better relationship to adjoining development in terms of fulfilling the Council's townscape objectives. 56Step (c) continues the error in steps (a) and (b) and adds a new error of considering extraneous matters. The application of para (ii) of cl 1 is to be determined by reference to, first, its terms, secondly, cl 3 which expressly relates to para (ii) of cl 1, and thirdly, the townscape objectives elsewhere stated in the Business Zone DCP which are referred to in cl 1(ii) and cl 3. Other planning considerations, including the impacts of the proposed building on views, not referred to in these provisions, are not relevant to the task under para (ii) of cl 1 of determining the height that provides a better relationship to adjoining development. The determination of that height under para (ii) is a necessary preliminary step to determining whether and how the height control in cl 1 applies. 57The terms of cl 1(ii) and cl 3 of section 1.2 "Building Heights" for the Manly Town Centre locality stand in contrast to the building height control provisions for other localities, which in terms require consideration of other planning considerations, include loss of views, in determining whether to permit a variation of the maximum height: see cl 1(i) of section 2.2 Building Heights for Balgowlah Shopping Centre (in Part 2) and para (ii) of section 4.2 Building Heights for Neighbourhood Centres (in Part 4). 58The question posed by the Commissioner in para 28 of his reasons was based on the Commissioner's misconstruction of the height control provisions and involved the Commissioner asking himself the wrong question. 59Step (d), which involved the application of the Commissioner's construction to the facts, involved error because of its foundation in steps (a)-(c) which themselves involved errors on questions of law. The Commissioner's acceptance of the evidence of Mr Layman which was founded on an erroneous construction of clause 1 also involved error. 60What I have found so far is sufficient to explain my reasons for concluding that the Commissioner's construction and application of the height control provisions in the Business Zone DCP involved errors on questions of law. It is not necessary to deal with the other part of Tricon's ground 4 concerning Mr Winnacott's evidence or ground 5 which only arose if the Commissioner's construction were to be correct. 61In light of the parties' expert planning evidence at the hearing before the Commissioner and their submissions at that hearing and on this appeal as to the construction of the height control provisions in the Business Zone DCP, I should add that I find both Tricon's and the Council's constructions of the height control provisions also to involve errors. 62First, application of any of paras (i) to (iii) does not result in a substituted maximum wall height for the 15 metre height specified in cl 1. In relation to the Council's construction, the fact that a lesser or greater height is specified on the height control map does not result in that height being substituted for the 15 m height as the maximum wall height for the purpose of cl 1. In relation to Tricon's construction, the fact that under para (ii), a lesser or greater height might provide a better relationship to adjoining development in terms of fulfilling the Council's townscape objectives does not cause that the height to displace the 15 metre height as the maximum wall height for the purpose of cl 1. 63Secondly, if para (ii) is engaged, the height resulting from application of para (ii) does not displace the height specified on the height control map in the section "Maximum Building Height", which is applied by para (i). The maximum building height control in the section "Maximum Building Height" continues to apply. Engagement of para (ii) simply causes the prohibition on the maximum wall height exceeding 15 m to not apply. 64This point is important and goes to the core of Tricon's construction of the height control provisions. It is to be noted that the maximum wall height of Tricon's proposed building does not exceed 15 m. Hence, even without application of any of the exceptions in paras (i) to (iii) of cl 1, so that the prohibition in cl 1 applies, Tricon's building would not be in breach of that prohibition. However, with application of any of the exceptions in paras (i) to (iii), the situation does not change on the construction of cl 1 I have found to be proper. Application of any of the exceptions would cause the prohibition on the maximum wall height exceeding 15 m to no longer apply. Tricon's building would still not be in breach of cl 1. Hence, cl 1 of section 1.2 "Building Heights" is not the problem for Tricon's proposed building. 65The problem for Tricon's building lies with the maximum building height control in the section "Maximum Building Height", which limits the maximum building height to that indicated on the height control map. If that maximum building height control applies, Tricon's proposed building would be in breach, exceeding both the 10 m limit at the front and the 12 m limit at the rear of the site. 66It is to avoid the operation of the maximum building height control in the section "Maximum Building Height" that Tricon advanced its construction that application of para (ii) of cl 1 of section 1.2 "Building Heights" displaces both para (i) of cl 1 and the maximum building height control in the section "Maximum Building Height". However, for the reasons I have given, para (ii) of cl 1, if it is engaged, does not have this effect. 67Thirdly, Tricon's submission that the effect of cl 1(ii) and cl 3 of the section 1.2 "Building Heights" is to impose an obligation to match the wall height of the proposed building to adjoining development involves error. Clause 3 explains the intent of cl 1(ii). It is not a stand alone control. Paragraph (ii) of cl 1 is an exception to the prohibition in cl 1. It too is not a stand alone control. The only control in section 1.2 "Building Heights" is the prohibition in cl 1 that the maximum wall height of a building shall not exceed 15 m. 68Hence, although I have found the Commissioner's construction and application of the height control provisions in the Business Zone DCP to be erroneous in law, it is not by reference to Tricon's or the Council's construction of these provisions but rather by reference to the construction I have found to be proper.

Consideration of the Residential Zone DCP 69Apart from Tricon's submission that the Commissioner erred in considering view loss when determining cl 1 of the section 1.2 "Building Heights" in Part 1 of the Business Zone DCP, Tricon also submitted that the Commissioner's particular consideration of cl 4.3 of the Residential Zone DCP involved an error of law because that clause was an irrelevant consideration. 70The Residential Zone DCP does not directly apply to land in the Business Zone, including the Tricon Site. However, cl 4 in section C of the Preliminary section of the Business Zone DCP incorporates by reference certain provisions of the Residential Zone DCP. Clause 4 provides: "4. Council and applicants must have regard to the objectives and relevant controls of Council's DCP for the Residential Zone for residential development within the Business Zone." 71Tricon's proposed building includes residential development. 72Tricon submits that, notwithstanding the Business Zone DCP's incorporation of both "the objectives" and "relevant controls" of the Residential Zone DCP, the terms of the Residential Zone DCP only apply the objectives and not any of the controls to residential development in other zones, including the Business Zone. Tricon relies upon the statement in cl 1.1 of Part 1 of the Residential Zone DCP that: "It applies to all forms of residential development in the zone with the objectives of this Plan also applying to residential development in other zones and non-residential development in the Residential Zone." 73Tricon submits that the effect of this statement is to make applicable only the objectives and none of the controls in the Residential Zone DCP (including cl 4.3) to residential development in the Business Zone. 74The Council disputes this construction and submits that the plain words of cl 4 in Section C of the Preliminary Section of the Business Zone DCP incorporate not only objectives but also relevant controls. 75I agree with the Council's construction. Clause 4 of Section C of the Preliminary Section in the Business Zone clearly states that the provisions of the Residential Zone DCP that are incorporated are "the objectives and the relevant controls" of the Residential Zone DCP. The statement in section 1.1 of Part 1 of the Residential Zone DCP cannot override the statement in Clause 4 that not only the objectives but also relevant controls of the Residential Zone DCP are incorporated into the Business Zone DCP and apply to residential development in the Business Zone. Of course, there needs to be a determination, in the case of each residential development in the Business Zone, of what are the relevant controls. But it is incorrect to state that no controls can ever be relevant. 76In this case, the controls of cl 4.3 would appear to be relevant to Tricon's development. 77Accordingly, I reject Tricon's ground 6 that the Commissioner erred by taking into consideration cl 4.3 of the Residential Zone DCP.

The Commissioner's decision should be set aside 78The errors in the decision of the Commissioner on questions of law are fundamental to the Commissioner's reasoning and ultimate conclusion. They vitiate the decision and the conclusion. 79Accordingly, the Commissioner's orders and decisions should be set aside and the matter remitted to be determined according to the reasons in this judgment. Tricon submitted that the matter should be remitted to a commissioner other than the Commissioner who previously determined the matter. The principles governing an exclusionary remitter are discussed in Baulkham Hills Shire Council v Basemount Pty Ltd [2003] NSWCA 189; (2003) 126 LGERA 339; Castle Constructions Pty Ltd v North Sydney Council [2007] NSWCA 164; (2007) 155 LGERA 52; Hurstville City Council v Goreski [2011] NSWLEC 188; Svedas v Council of the City of Sydney [2011] NSWLEC 215. 80In my view, Tricon has not established, according to these principles, a case in the present circumstances for an exclusionary remitter. It is not enough that the Commissioner has erred in his decision on a question of law, being the construction and application of the height controls in the Business Zone DCP; the Commissioner needs to have acted in such a way as to give rise to a reasonable apprehension of bias or a reasonable apprehension of prejudgment of the merit issues which would be required to be determined afresh on the remitter: Baulkham Hills Shire Council v Basemount Pty Ltd at [23]; Castle Constructions Pty Ltd v North Sydney Council at [83]-[85]. I do not find on the facts and circumstances of this case, including the nature of the errors, that the commissioner has acted in such a way, including by his findings and conclusions in his reasons for judgment, as would give rise to a reasonable apprehension of bias or prejudgment. Accordingly, the usual remitter to the Commissioner should be made. 81Having regard to the nature of the proceedings as a s 56A appeal, and the circumstances of the case, it is fair and reasonable for the costs of the appeal to follow the event. The parties did not submit otherwise. The Council, however, sought a certificate under the Suitors' Fund Act 1951. 82Accordingly, the Court orders:

The appeal is upheld.
The decision and orders of the Commissioner dated 30 August 2011 are set aside.
The matter is remitted to the Commissioner for determination by the Commissioner in accordance with the decision of the Court.
The respondent is to pay the applicant's costs of the appeal.
The respondent is to have a certificate under the Suitors' Fund Act 1951 with respect to the costs of the appeal referred to in Order 4, if otherwise qualified.
The matter is listed for directions before the Registrar on Wednesday 21 December 2011. 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: 23 December 2011

(2003) 126 LGERA 339

(2009) 172 LGERA 338

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