Vaughan v Byron Shire Council

IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES 10683 of 2001 Lloyd J 27 September 2002 JOHN VAUGHAN Applicant BYRON SHIRE COUNCIL Respondent REASONS FOR JUDGMENT [No. 2]

1. This is an appeal under s 56A of the Land and Environment Court Act 1979 against a decision of Commissioner Hoffman, such an appeal being limited to a question of law. The applicant appealed against the respondent council's refusal of a development application for fifteen townhouse-style units and one detached house at West Byron. The Commissioner dismissed the appeal.
2. The applicant relies upon eleven grounds of appeal against the Commissioner's decision. Some of those grounds overlap and the submissions in relation to the overlapping grounds are essentially the same. It is thus convenient to consider the submissions under two broad headings: (a) whether the Commissioner erred in law in his determination that the requirements of cl 45 of Byron Local Environmental Plan 1988 meant that the Court was bound to refuse the proposal; and (b) whether the Commissioner had denied procedural fairness to the applicant in relation to a number of other issues. Clause 45 of the Byron Local Environmental Plan 1988
3. Grounds 1 to 6 may be grouped under this head. Clause 45(1) of the Byron Local Environmental Plan 1988 relevantly provides: The Council shall not consent to the carrying out of development on any land to which this plan applies unless it is satisfied that prior adequate arrangements have been made for the provision of sewerage, drainage and water services to the land.
4. Mr J J Webster, appearing for the applicant, submits that the Commissioner erred in law by not asking the right question. In Mr Webster's submission, cl 45 requires that two questions be answered affirmatively: (i) whether there was a prior arrangement for the provision of services, including willingness on the part of the Byron Shire Council ("the council") to co-operate in a consensual way; and (ii) whether the Court was satisfied that such arrangements were adequate.
5. Mr Webster relies upon two authorities in support of this submission. In Codlea Pty Ltd v Byron Shire Council (1999) 105 LGERA 370, the Court of Appeal considered the operation of cl 45. In that case the Court of Appeal held that there are two elements to cl 45. One is the making of the "prior adequate arrangements" by the council and the second is the "satisfaction" with them prior to granting consent. The former is exclusively the province of the council and the Court does not acquire that function on an appeal. It is not for the Court to make the arrangements on behalf of the council. The Court on appeal does, however, acquire the function of the council as to "satisfaction" with such "prior adequate arrangements" required to be made under the clause. The Court can substitute its satisfaction under cl 45 for that of the council.
6. In Ian McKay Pty Ltd v Byron Shire Council [2000] NSWLEC 29, Pearlman J also considered the operation of cl 45. Her Honour held that the clause required the commissioner to decide on the facts whether prior arrangements in the sense of the willingness of any relevant authority to co-operate in a consensual way had been made; and whether the Court was satisfied that such arrangements on the facts were adequate. This required the commissioner on appeal to pose the question of fact for himself as to whether it had been shown to the Court that there existed a willingness to co-operate in a consensual way between the council and the developer. The commissioner then had to pose the further question of fact for himself as to whether, if "prior arrangements" had been made, they were "adequate". In the latter respect, evidence about the capacity of the sewerage treatment plant would be relevant.
7. I accept Mr Webster's submission as to the correct approach to consider the application of cl 45 as explained in the above-mentioned authorities. I also accept the proposition that it is an error of law for a commissioner to misdirect himself as to the question he was required to answer; that is, to define otherwise than in accordance with law the questions of fact which he has to answer (Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 156).
8. I now turn to the Commissioner's decision. The Commissioner records the fact that the decision was delivered extempore. I was informed from the bar table however, that this was not so. The evidence and submissions concluded on the fourth day of the hearing, but the decision was in fact reserved and was delivered, albeit orally, on the afternoon of the fifth day.
9. A document entitled "Final Statement of Issues" had been tendered (and which became Exhibit 5 before the Commissioner). It lists twenty four separate issues. However, the Commissioner's decision contains the following observations: [31] There was agreement between the parties that the two principle issues were:- (a) Whether or not there was capacity at the West Byron Treatment Plant for the sewage and waste water from this proposal under cl 45 of the Byron LEP 1988, and the requirement for Council to agree to supply such services; (b) Whether adequate consideration had been given to the protection of the littoral rainforest vegetation on the site. [32] Some of the other issues had been resolved by discussion between the experts of each party. [33] The respondent said due to the lack of technical information some matters could only be dealt with by deferred commencement conditions, and others were unsuitable to be dealt with by such conditions.
10. It is clear from par [31] of the decision that the Commissioner was aware of the two issues raised by cl 45, namely "the requirement for the Council to agree to supply" the services; and whether "there was capacity at the West Byron Treatment Plant for the sewage and waste water from this proposal" (although stated by him in reverse order). It is also clear that the commissioner was aware of the two authorities of Codlea Pty Ltd and Ian McKay Pty Ltd, since he expressly refers to them later in the decision.
11. Apart from identifying and stating the issues in the form in which he did (at par [31]), the Commissioner does not thereafter set out the two questions in express terms which cl 45 requires to be answered. It seems to me, however, that the Commissioner considered and answered the questions in substance. It must be remembered that the decision in question is written by a lay expert and not by a lawyer. It is well settled that it is undesirable in an appeal from a lay tribunal where the appeal court is confined to a question of law, to examine too narrowly the words used in the decision, at least unless those words are central to the decision (Brimbella Pty Ltd v Mosman Municipal Council (1985) 79 LGERA 367 at 368, per Priestley JA, Kirby P and McHugh JA agreeing). Moreover, it would be wrong for the court on appeal to examine the decision as if it was written by a lawyer (per Priestley JA at 368 supra; Fast Buck$ v Byron Shire Council (1999) 103 LGERA 94 at 98, per Handley JA).
12. Contrary to Mr Webster's submission, the Commissioner set out (in par [31] of his decision) the two questions which arise under cl 45. As noted above, the Commissioner expressly referred to the authorities which describe the two-fold approach to that clause. His discussion of the evidence and conclusions relating to cl 45 is set out in the following paragraphs of the decision: [74] The final matter in the question of this appeal was the availability of sewerage capacity at the West Byron Treatment Plant. [75] Mr Warner's evidence must be given superior weight to that of Mr Sargent. The plant has a single primary tank, originally designed for 960 kilolitres per day throughput. The upgrade in 1999 allowed this to be boosted to 2000 kilolitres a day average, with 2500 kilolitres a day peak during tourist periods. The plant was also capable in major storms of handling around 10,000 kilolitres a day, but the requirement for that capacity was extremely rare and short-lived and could not be sustained. [76] The tourist peak in January 2002 had averaged over 3000 kilolitres per day, and Mr Warner was of the opinion that, generally, the volumes going through the plant were rising on a continual basis. [77] If the biomass of the treatment plant was to be killed off for any reason, be it malfunction of the plant, storm event, or unacceptable chemicals in the sewerage, then there is no second tank to divert flows into. The whole plant would have to be shut down. [78] The single exceedance of the phosphorus output of the plant in January 2002 was no doubt due to exceptional circumstances, but the ammonia levels were up near the limits also. Mr Warner said, and the output analysis of the plant prior to the 1999 upgrade showed, that phosphorus and ammonia levels are the indicators of over-stressing the plant. [79] The proposal does not have a large requirement, requiring only about 11 ET (Equivalent Tenancies). Mr Warner calculated that the current spare capacity at the plant is 3.64 ET. [80] The applicant had understood that Council had included its development in an allocation of spare capacity of 92 ETs, which existed in 2001. Indeed, it seemed from much of the evidence this was so. The applicant had tried over a number of months to confirm this with the Council, and his efforts had culminated in a confirmation by Council Minute in December 2001. This Minute was the subject of a recision motion in January 2002. No alternative motion was put to Council, and the applicant concluded that the matter reverted to the Council's report, attachments and decision on 28 August 2001 about the allocation of spare capacity ETs. As a result the applicant said the Court was free to determine this appeal on the basis that prior adequate arrangements had been made for the provision of sewerage to the proposal under clause 45 of the Byron Local Environmental Plan 1988 . [81] The respondent put that the Council did not allocate the spare ETs on a fixed basis in that decision, but used the table of "committed ETs" due to existing development, and "allocated ETs" due to development applications under consideration, to demonstrate all available ETs at the West Byron Plant would be used up. [82] As it happened, the spare capacity ETs had been allocated progressively by Council as applications were approved until only 3.64 ET remained. So, there is not sufficient for this development. The resolution of Council on 12 August 1997, to not enter into any further agreements to service new developments, applies, according to the respondent, until the next upgrade of the West Byron Plant, which is likely to be built, on current information, by about the end of 2003. [83] As a result, the respondent said the decisions of the Court of Appeal in Codlea v Byron NSW CA 399, Handley JA, Sheller JA, Stein JA , and the Land and Environment Court Appeal No. 10721/98, Ian McKay Pty Limited v Byron, Pearlman CJ , ought to apply. And, the supply of sewerage is not a matter which could be dealt with by way of deferred commencement consent due to the findings in the Land and Environment Court Appeal No. 10444/97 by Sheahan J. [84] The Court accepts the respondent's evidence on these facts, and on this single issue alone it would seem the Court is bound to refuse the proposal
13. Mr Webster refers somewhat extensively in his submissions to the detailed evidence on both (a) the question of whether there was any prior arrangement between the applicant and the council, including whether there was a willingness on the part of the council to co-operate with the applicant in a consensual way; and (b) the question of whether the Court could be satisfied that those arrangements were adequate, that is, whether there was a capacity at the sewerage treatment plant for the sewage and waste water from the applicant's proposed development. He sought to demonstrate from this evidence that the Commissioner should have answered both these questions in the affirmative.
14. It seems to me, however, that the evidence upon which Mr Webster relies may, at its highest, demonstrate wrong findings on the facts. In another way, it is an illegitimate attempt by Mr Webster to convert adverse findings of facts into errors of law. There is no error of law in simply making a wrong finding of fact (Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at 654, per Gummow J; Corporation of the City of Enfield v Development Assessment Commission & Anor (2000) 199 CLR 135 at 154, per Gleeson CJ, Gummow, Kirby and Hayne JJ, and at 158, per Gaudron J).
15. Mr D P F Officer QC, appearing for the council, responded by referring to evidence which in his submission supports the contrary conclusion that there was no arrangement between the council and the applicant as required by cl 45 and to evidence that there was no spare capacity at the sewerage treatment plant.
16. I do not have to resolve the competing inferences nor draw conclusions from the evidence. That was solely a matter for determination by the tribunal of fact, the Commissioner. The only question I have to decide is whether the Commissioner erred in law and not whether he erred in drawing the inferences and conclusions which he did from the facts.
17. It is apparent, as pointed out by Mr Officer, that when reading paras [74] to [84] of the Commissioner's decision, that the Commissioner considered and decided both questions which arise under cl 45. The Commissioner discusses in a summary way the competing cases in relation to whether there were prior adequate arrangements for the provision of sewerage (pars [80] to [82]). The Commissioner cites the two authorities to which I have earlier referred (par [83]). He discusses, also in a summary way, the evidence as to the capacity of the sewerage treatment plant (pars [75] to [79]), referring to facts which support his conclusion that the evidence of Mr A P Warner (the council's expert witness, managing engineer and acting director for Water and Waste Services) must be given superior weight to that of Mr R Sargent (the applicant's expert witness). The Commissioner notes that the spare capacity of the sewerage treatment plant had been progressively allocated by the council as applications were approved and makes a finding of fact that "only 3.64 ET remained" (par [82]). (Again I must emphasise that this is a finding of fact which cannot be disturbed on appeal.) It seems reasonably clear that the Commissioner found both that there was no prior arrangement as well as no spare capacity at the sewerage treatment plant to take sewage and waste water from the applicant's proposed development (par [82]). The Commissioner concludes that the Court is thus bound to refuse the proposal (par [84]). He was bound to refuse the development application because (a) there was no prior arrangement; and (b) he was not satisfied that there was sufficient capacity at the sewerage treatment plant.
18. It follows that the Commissioner considered the two-fold issue arising under cl 45 and, although not repeating the two questions in terms, he has considered them and determined them. There is no error of law in what the Commissioner did.
19. Mr Webster further submits that the Commissioner "does not give any indication in his reasons of any basis for his ultimate conclusion" and "a mere acceptance of the evidence of Mr Warner cannot be sufficient in the overall context of this case".
20. It is well settled that a failure to give reasons is an error of law (Pettitt v Dunkley [1971] 1 NSWLR 376, Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 385, Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247).
21. Moreover, it is not a sufficient reason to say that the evidence of a particular witness is "preferred" over the evidence of another. Reasons must be given for preferring one witness' evidence over that of another (Hadid v Redpath [2001] NSWCA 416 at [53], Todorovic v Moussa (2001) 53 NSWLR 463 at 470).
22. The requirement to give reasons does not require a tedious examination of the detailed evidence or a minute explanation of every step in the reasoning process that leads to the conclusion (Soulemezis at 259). The reasons need not be lengthy or elaborate (Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430 at 443). As noted (in par [11] above), it is also settled that a "fine-tooth comb" approach should not be employed when examining the decisions of technical commissioners for errors of law (Coles v Woollahra Municipal Council (1986) 59 LGRA 133 at 138, Randwick Municipal Council v Crawley (1986) 60 LGRA 277 at 283, Brimbella Pty Ltd v Mosman Municipal Council at 368).
23. In applying the above-mentioned principles it is clear that the Commissioner has furnished the reasons both for his ultimate conclusion and for his acceptance of the evidence of Mr Warner. After stating (in par [75] of his decision) that Mr Warner's evidence must be given superior weight to that of Mr Sargent, the Commissioner goes on in the balance of that paragraph and in the following paragraphs to give reasons for that conclusion. The reasons include those which lead to his ultimate conclusion. The submissions of the applicant appear to be a somewhat pernickety approach, which is contrary to the principles described in par [22] above.
24. Finally on this aspect of the matter, the applicant contends that the Commissioner erred in law in holding that the proposed development could not be subject to a condition of deferred commencement if the present supply of sewerage was inadequate but in circumstances where the plant was to be upgraded by the respondent within the near future. Mr Webster sensibly did not expand upon this ground. A consent subject to a deferred commencement condition nevertheless remains a consent and would be contrary to cl 45 - "the council shall not consent to the carrying out of development on any land to which this plan applies unless…". Such a consent would also seem to run foul of the principle that a consent must finally determine the development application and cannot validly leave for later decision an important aspect of the development (Mison v Randwick Municipal Council (1991) 73 LGERA 349). In these circumstances it was open to the Commissioner to conclude as he did, and there is no error of law in so doing. Denial of procedural fairness
25. Grounds 7 to 11 relied upon by the applicant are as follows: 7. The Commissioner erred in law in determining that the absence of a conceptual landscape plan could not be the subject of a condition of deferred commencement in circumstances where this issue was not subject to argument between the parties and was not raised as an issue by the Respondent and the parties were not invited by the Court to address this issue. 8. The Commissioner erred in law in finding "questions of finished ground levels, the feasibility of retaining some trees and groups of trees, where new vegetation might be planted and in particular the location of utility services which were largely unknown and largely uninvestigated it seemed" in the absence of any evidence to support such a finding and which was contrary to evidence before the Court which was not challenged and in relation to which the Court did not invite the parties to make submissions. 9. The Commissioner erred in law in determining there was insufficient evidence of the capacity of the absorption ponds in circumstances where this was not the subject of evidence or argument and was not raised as an issue by the Respondent and the parties were not invited by the Court to address this issue. 10. The Commissioner erred in law in finding in relation to the absorption ponds there was a "need for a containment wall" in circumstances where there was no evidence to support such a finding and where the parties were not invited by the Court to address this issue. 11. The Commissioner erred in law in finding House number 1 should be deleted because "it was reasonable to expect… that there would be a yard area and its associated vegetation and facilities and in that event it would lead to the loss of many more trees" in circumstances where there was no evidence to support this finding and the parties were not invited by the Court to address this issue.
26. Mr J M Atkin, who argued these grounds for the applicant, relies upon an absence of procedural fairness. Particular reliance is placed upon the explanation of the principle in Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 305 (per Gaudron J): There is a want of procedural fairness if there is no opportunity to be heard on matters in issue. And there is no opportunity to be heard if the person concerned neither knows nor is in a position to anticipate what the issues are. That is also the case if it is assumed that a particular matter is not in issue and the assumption is reasonable in the circumstances.
27. In Mr Atkin's submission, each of the matters described in grounds 7 to 11 of the grounds of appeal, noted above (par [25]), involved speculation on the part of the Commissioner and were not the subject of evidence or either party's submissions.
28. Mr Atkin further submits that the questions of landscaping (ground 7) and stormwater (ground 9) were the subject of deferred commencement conditions proffered by the council. I observe, however, that these conditions were proffered on a "without prejudice" basis in the event that the Court was to grant consent to the application. The "without prejudice" conditions were proffered without prejudice to the council's primary position that there should be no consent at all. In my opinion, it could not be said that in that circumstances there was a concession that these questions could be resolved by deferred commencement condition of consent.
29. Mr Officer QC accepts the principle of procedural fairness as applying to hearings before the commissioners of the Court. In the present case, however, he says that each of the matters described in grounds 7 to 11 of the grounds of appeal were the subject of evidence and submissions, so that there was no denial of procedural fairness on the part of the Commissioner.
30. As to the ground 7, Mr Officer again relies upon the fact that the deferred commencement condition was proffered without prejudice to the council's primary position that there should be no consent at all. There was no concession that the absence of an adequate landscaping plan meant that the application could be approved. The council's position was accepted by the Commissioner at par [64] of his decision. There was expert evidence on this issue by Mr P I Montgomery (the council's tree preservation officer), who was both examined and cross-examined. As to the proposed deferred commencement condition, Mr Montgomery gave the following evidence (in cross-examination by the applicant's senior counsel): Q. Now the landscaping plan or there isn't a landscape concept plan that came in with the latest set of plans, the need for on this particular site, an appropriate landscaping plan in accordance with the DCP, what do you say? A. Definitely. Q. Have you been provided with the details required under the DCP in relation to landscaping plans? A. No. I have not. … Q. I think I said you were critical of there being lack of detail of services for this site? A. Yeah, because I understand now the engineers have signed off on 3 metres around - allowance for services around all buildings and car parking areas, which especially with relation as to houses 3, 4, 5 and 6, for the maintenance of services or for the provision of landscaping and together with a pathway there, I can't see anything other than a shrub that could be used to mingle, for want of another word, blend the dwellings into the surrounding area. … Q. And in relation to this proposal, the draft conditions I take it in relation to landscaping, you've been involved in the preparation of those conditions? A. Yes. Q. And if in accordance with those conditions, a landscape plan is prepared to Council's satisfaction, that will be adequate won't it and satisfactory? A. Well we had to hand up draft conditions, I wasn't happy with it, but we had to hand up draft conditions, so that's part of it, yes.
31. It seems reasonably clear from this evidence that the council's expert witness, Mr Montgomery, was not satisfied that the landscaping issue was resolved and neither was he satisfied that the proposed deferred commencement condition would be adequate or satisfactory. It was thus clear, in Mr Officer's submission, that this was a "live" issue. It was also the subject of submissions at the hearing by the council's solicitor. As noted above by the Commissioner (in par [33] of his decision, which I have set out in par [9] above), the council contended that some matters were unsuitable to be dealt with by way of deferred commencement conditions.
32. As to the ground 8 of the grounds of appeal, the retention of trees and landscaping were, in Mr Officer's submission, clearly matters in issue. They were the subject of expert evidence (being that of Mr Montgomery). They were also the subject of submissions by the council's solicitor.
33. The applicant thus had ample opportunity to respond to the evidence and the submissions on both questions arising under grounds 7 and 8 of the grounds of appeal.
34. Grounds 9 and 10 of the grounds of appeal are related and may be taken together. Mr Officer submits that the statement of issues (Exhibit 5) clearly raises the question of lack of information in relation to drainage, finished surface levels and the impact of the development on the existing stormwater regime. It is the fact that these questions were the subject of expert evidence on behalf of the council (namely Mr J Begovic, a development engineer, whose report was in evidence, but who was not required for cross-examination). The proposed without prejudice conditions for a deferred commencement consent did not mean that the council had abandoned its primary position that the development application should be refused. The lack of information on these matters was also the subject of submissions at the hearing by council's solicitor. This included, for example, the need for a containment wall.
35. As to ground 11 of the grounds of appeal, there was evidence that there were two areas of littoral rainforest on the land, one of which was where it was proposed to locate house number 1. In Mr Officer's submission the importance and location of the littoral rainforest and its preservation was a critical issue in the case. (I note that the Commissioner describes it as one of the principal issues.) It was the subject of expert evidence on behalf of the council by Mr M A Fitzgerald, who referred to the impact upon the littoral rainforest of the footprint of the house and its curtilage, and who was cross-examined on this issue by the applicant's senior counsel. Moreover, the applicant's senior counsel made a submission to the Commissioner as follows: And for more abundant caution, if the Court is still of the view that that area contains stems of sufficient value to warrant retention of the whole of that area, my instructions are to simply delete house 1 from the application. As noted by Mr Officer, that is precisely what the Commissioner did. The applicant cannot now be heard to complain that it was denied natural justice for this reason.
36. Mr Atkin accepts the fact that the matters described in grounds 7 to 11 were issues before the Commissioner. In his submission, however, all the issues raised were said to be resolved, apart from cl 45 of the Byron Local Environmental Plan 1988 and the sewerage question. The applicant's senior counsel expressly said that this was his understanding when he commenced his submissions. It was thus reasonable, in Mr Atkin's submission, for an assumption that the remaining matters were not in issue and that they could be resolved by conditions of consent.
37. I note from the transcript of the submissions at the hearing before the Commissioner, however, that the submissions of the council's solicitor, which followed those of senior counsel for the applicant, canvassed the issues raised by grounds 7 to 11. Those issues could have been the subject of further submissions on behalf of the applicant in reply. The matters referred to by Mr Officer are compelling. Moreover, I note that the Commissioner identified the two issues of (a) cl 45 and the capacity of the West Byron Sewerage Treatment Plant and (b) protection of the littoral rainforest vegetation, as the two principal issues. This suggests that they were not the only issues. The remaining issues to which grounds 7 to 11 relate were clearly canvassed both in the expert evidence and in submissions. It does not appear to me that there was any lack of procedural fairness in these circumstances.
38. If I am wrong in so concluding then development consent still could not have been granted in view of the prohibition against the granting of development consent in the absence of requirements of cl 45. Conclusion and orders
39. The applicant has failed to demonstrate any error of law in the Commissioner's decision. I therefore make the following orders: 1. The appeal is dismissed.
40. The applicant must pay the respondent's costs. I hereby certify that the preceding 39 paragraphs are a true copy of the reasons for judgment herein of the Honourable Mr Justice Lloyd.

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