Walsh v Parramatta City Council and Alam

KEY ISSUES: Judicial Review :- development consent - alleged breach of development standards for height and floorspace ratio - alleged failure to consider overshadowing - alleged failure to consider disabled access

LEGISLATION CITED: Disability Discrimination Act 1992 (Cth) s 79C(1)(a)

Abebe v Commonwealth of Australia (1999) 197 CLR 510; Akpan v Minister for Immigration Ethnic Affairs (1982) 58 FLR 47; Bruce v Cole (1998) 45 NSWLR 163; Brunetto v Collector of Customs (1984) 4 fcr 92; Buresti v Beveridge (1990) 158 ALR 445; Elliott v Southwark London Borough Council [1976] 1 WLR 499; Gidaro v Secretary Department of Social Security (1988) 154 ALR 550; Foster v Minister for Customs (2000) 200 CLR 442; CASES CITED: Kindimindi Investments Pty Ltd v Lane Cove Council (2006) 143 LGERA 277; Makhoul v Parramatta City Council [2006] NSWLEC 386 (21 June 2006); Minister for Immigration and Multi-Cultural Affairs v Yusuf (2001) 206 CLR 323; Minister for Immigration and Ethnic Affairs v Wu Shang Liang (1996) 185 CLR 259; Noble v Cowra Shire Council (2001) 114 LGERA 440; R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott (1933) 50 CLR 228; Randwick Municipal Council v Manousaki (1988) 66 LGRA 330; Re Queensland Electricity Commission; Ex parte Electrical Trades Union of Australia (1987) 72 ALR 1; Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363; Zhang v Canterbury City Council (2001) 51 NSWLR 589

DATES OF HEARING: 03/10/2006, 04/10/2006, 05/10/2006, 06/10/2006; MENTIONS: 07/02/2007, 19/02/2007, 05/03/2007, 30/04/2007

APPLICANT Mr J Johnson (barrister) SOLICITORS James Soulos

LEGAL REPRESENTATIVES: FIRST RESPONDENT Submitting appearance

SECOND RESPONDENT Mr T O Bland (barrister) SOLICITORS R M Legal

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

1 HIS HONOUR: Mr Walsh lives in a single storey house at 126 Bettington Road, Oatland. Dr Alam is his neighbour to the north, at 128 Bettington Road, Oatland. Dr Alam wishes to redevelop his property by erecting a double storey dwelling. Mr Walsh is opposed to the new dwelling. He says it will impact significantly on the use and enjoyment of his property. Dr Alam sought and eventually was granted by Parramatta City Council development consent to erect the new dwelling. Mr Walsh has brought proceedings to challenge the validity of the development consent. The development application and its determination 2 On 14 November 2004, Dr Alam lodged a development application with the Council, being the relevant consent authority, seeking development consent to erect a double storey residential dwelling. 3 Mr Walsh objected to the new dwelling on a number of occasions, including by written submissions made by his planning consultant, Mr Danny Jones, dated 3 February, 15 September and 17 October 2005. The new dwelling was, in Mr Walsh's opinion, of excessive height, bulk and scale. It would cause unacceptable overshadowing and privacy impact. It did not comply with the statutory controls for regulating height and floorspace ratio in Parramatta Local Environmental Plan 2001 ("PLEP") and could not be approved. The driveway for the dwelling would result in substantial excavation of the public road reserve of Bettington Road impeding pedestrian access, including for disabled people. 4 Dr Alam amended the plans for his property development a few times to address concerns raised both by Mr Walsh and by the Council. The amendments addressed driveway and basement configuration and the appearance, bulk and scale of the development. Dr Alam lodged shadow diagrams showing the shadowing caused by the proposed dwelling on Mr Walsh's property. 5 Notwithstanding these amendments, Mr Walsh maintained his objection to the development. The final objection made before the Council determined Dr Alam's development application was by Mr Walsh's planning consultant Mr Danny Jones, dated 17 October 2005. This objection addressed the final amended plans of September 2005. Mr Walsh submitted, amongst other things:

(a) The development was not permissible because it was not compliant with the height and FSR development standards of PLEP and no objection under State Environmental Planning Policy No 1 - Development Standards had been lodged objecting to compliance with such standards;

(b) The development would result in "significant" overshadowing on Mr Walsh's property which lies to the south. The shadow diagrams prepared for Mr Walsh and submitted to the Council with Mr Walsh's submission of 15 September 2005 "established that the proposed development will manifest in unreasonable shadow impacts on No 126 Bettington Road. The extent of shadow affectation is such that not only will the amenity of No 126 be significantly adversely affected, but also it will be impossible to design a dwelling for No 126 that receives 3 hours sunlight to internal living areas and principal outdoor recreation areas. Any north facing window within the existing dwelling and any north facing window in the proposed new dwelling will clearly be within total shadow between the hours of 9.00am and 3.00pm mid winter". Further, "the extent of over shadowing creates a major constraint on designing for solar access in respect of No 126 Bettington Road. The shadow impact is such that the neighbouring southern property cannot achieve anywhere near the 3 hrs sunlight access to recreation areas and north and east facing windows required under the DCP 2001". Mr Walsh submitted that the design of the proposed development made "absolutely no endeavour to minimise shadow impacts". One of the design responses to improve solar access recommended by Mr Walsh was to set the building further back from the southern boundary.

(c) The works proposed for the road reserve for the access driveway were inappropriate and raised concerns in respect of public safety and disabled access. 6 A council officer, Mr Craig Thomas, assessed the development application. He wrote a report on 21 November 2005. He noted the submissions that had been received from Mr Walsh objecting to the proposal. Mr Thomas found:

(a) The proposed development is consistent with the objectives of the 2(a) residential zone (as required by cl 16(3) of PLEP);

(b) The proposed development complies with the two storey height standard for single dwelling development (cl 39(1)(a) of PLEP);

(c) The proposed development has a total floor space area of approximately 442.75m2 on a site of 882.2m2 and results in a floor space ratio of 0.50:1 which complies with the FSR standard for single dwelling development (cl 40(1) of PLEP);

(d) The proposed development does have an overshadowing impact on Mr Walsh's property. Mr Walsh's dwelling will not receive three hours of solar access along its northern elevation in mid winter. However, greater than 50% of the private open space will receive adequate solar access between 9.00am and 3.00pm on 21 June. Dr Alam has endeavoured to minimise the level of overshadowing by providing significant side setbacks to the southern side boundary ranging from 3m to 4m. The orientation of the subdivision pattern means that overshadowing in some form is inevitable. It is likely any two storey dwelling will have an impact on the adjoining property to the south due to the orientation of the allotment;

(e) The side setback proposed is 3.3m minimum on the southern side boundary which is greater than the 900mm permitted under Parramatta Development Control Plan;

(g) The vehicular and pedestrian access is satisfactory;

(h) The proposed development will not have a detrimental impact on adjoining properties and on the locality;

(i) The proposed development complies with the requirements of the Parramatta Development Control Plan ("DCP"). 7 Mr Thomas recommended the development application be approved subject to conditions. 8 Mr Thomas reported further to the Council meeting on 12 December 2005. Mr Thomas addressed specifically the objections raised by Mr Walsh, the latest of which was in the letter by Mr Danny Jones dated 17 October 2005, in relation to, amongst other issues, height, FSR, solar access and location of the driveway.

(a) Height: Mr Thomas notes that Mr Walsh had submitted that the dwelling exceeds the maximum two storey height allowed in cl 39 of PLEP due to the fact that the basement projects more than 1.2 metres above natural ground level in the section where the lobby is located and near the driveway. Mr Thomas set out the definition of storey from PLEP. Mr Thomas concluded: "The proposed dwelling is 2 storey in height with a basement parking area located beneath the ground floor. The plans submitted with the application indicate that the top of the basement roof slab is RL61.8. The survey plans submitted with the application shows that natural ground level where the lobby is to be located is between RL61.93 and RL61.48. Based on these levels, the basement projects a maximum of 400mm above natural ground level and therefore does not constitute a third storey as defined in Parramatta LEP 2001".

(b) FSR: Mr Thomas notes that Mr Walsh had submitted that the dwelling exceeds the maximum FSR control of 0.5:1 in clause 40 of PLEP. Mr Thomas concluded: "The floor area of the dwelling has been calculated in accordance with the definition contained in the LEP. The dwelling has the floor area of 442.75m2, which when compared to the site area of the allotment (882.2m2) results in an FSR of 0.5:1 being provided which complies with the numeric standard of cl 40 of PLEP 2001".

(c) Overshadowing: Mr Thomas notes that Mr Walsh had raised concern that the development will significantly overshadow his property which is on the southern boundary. Mr Thomas stated: "21. The performance criteria relating to solar access and PDCP2001 is to provide good solar access in winter and to maximise summer shade. To ensure that this is achieved, dwellings within a development site and adjoining properties must receive a minimum of 3 hours sunlight in habitable rooms and at least 50% of private open space between 9.00am and 3.00pm on 21 June. 22. The proposed dwelling will reduce the amount of solar access that the property at 126 Bettington Road will receive in mid winter due to the orientation of the existing allotment. The adjoining dwelling will not receive 3 hours of solar access along its northern elevation in winter, however more than 50% of the private open space area of the adjoining property will receive good solar access between 9.00am and 3.00pm in mid winter. 23. The applicant has attempted to minimise the extent of overshadowing to the adjoining property located at 126 Bettington Road by providing significant side setbacks to the southern boundary ranging from 3m to 4m. Shadow diagrams submitted for the equinox (22 September and 22 December) demonstrate that the private open space area and habitable rooms of the proposed dwelling at 126 Bettington Road will receive in excess of 3 hours of sunlight for both periods. 24. It is noted that Council is currently assessing an application for the redevelopment of 126 Bettington Road (the 2 storey dwelling house). The primary habitable rooms of the proposed dwelling, being the lounge, dining and sitting rooms will be located along the southern side of the dwelling to take advantage of views over the adjoining golf course. Rooms located on the northern boundary, which face 128 Bettington Road and which will be impacted by overshadowing include the kitchen, laundry, study, bathrooms, ensuites, and bedrooms. The bedrooms, kitchen and study rooms have alternate windows on other elevations. 25. The proposed dwelling is therefore not likely to result in any unreasonable solar access impact. Shadow diagrams that show the likely impacts of the development on the adjoining properties are attached to the report."

(d) Location of driveway: Mr Thomas noted that Mr Walsh had submitted that the location of the driveway is inappropriate and will reduce traffic and pedestrian safety. Mr Thomas concluded: "The driveway is located towards the southern boundary of the subject property approximately 12 metres from the Bettington Road and York Street intersection. The location of the driveway is satisfactory and will not unreasonably impact on traffic and pedestrian safety". 9 Mr Thomas recommended that Council grant development consent to the development application subject to conditions. At its meeting on 12 December 2005, the Council adopted the recommendations without discussion. 10 On 16 December 2005, the Council sent the Notice of Determination of Approval of the Development Application. 11 On 18 January 2006, the Council gave public notification of its determination under s 101 of the Act. 12 On 6 April 2006, Mr Walsh commenced these proceedings to judicially review the validity of the Council's determination and the development consent. Mr Walsh's grounds of challenge 13 Mr Walsh challenged the Council determination and the consent on many grounds in his points of claim dated 1 June 2006. However, at the hearing, the grounds of challenge were reduced to dealing with four topics: height, FSR, overshadowing and disabled access. Height 14 Mr Walsh claims that the Council had no power to grant consent to the proposed dwelling because the height exceeded the two storey maximum in cl 39 of PLEP and no objection to compliance with the development standard was lodged under SEPP No 1. This argument was put in two ways. First, by reference to the definition of storey in the dictionary to PLEP, a part of the building comprised three storeys, being the part of the basement designated on the plans as "equipements (sic) & plant room" which use does not answer any of the descriptions of spaces in the exceptions in paragraph (a) or (b). 15 Secondly, and in the alternative, the word "storeys" in clause 39 does not bear its defined meaning in the dictionary to the PLEP but rather bears its ordinary meaning. Application of the ordinary meaning results in the whole of the basement being a storey, being the space between the basement floor level and the floor level above. Hence, that part of the building above the basement where there are a further two storeys constitutes three storeys. Such a three storey building would be in breach of cl 39(1)(a) if it is visible at the lowest finished ground level. 16 The factual question of whether the height of the building exceeds two storeys is a jurisdictional fact. If the building does exceed two storeys, the Council's opinion that it did not would be irrelevant. The Court must substitute its own finding and hold that there was no power to grant consent. FSR 17 Mr Walsh claims that the Council had no power to grant consent to the proposed dwelling because its FSR exceeded the maximum FSR of 0.5:1 for a dwelling house specified in cl 40(1) of the PLEP and no objection to compliance was lodged under SEPP 1. The reason for the exceedence was that certain areas of the building had not been, but should have been, counted as floor space of the building. Those areas were identified to be:

(a) on the ground floor: two outdoor areas, being the front terrace and the deck adjoining the swimming pool;

(b) on the first floor: two voids in the centre of the building and a balcony on the eastern side; and

(c) in the basement: all of the basement except for a notional area that would be occupied by a single car space with the dimensions of 3m in width and 5.5m in length. 18 These areas did not fall within the exclusion of floor space area in the definition of "floor space area of a building" in the dictionary to PLEP. Overshadowing 19 Mr Walsh submitted the Council failed to consider the relevant matter of overshadowing by the proposed dwelling of Mr Walsh's property in two respects:

(a) The Council did not have before it, and hence could not have considered, facts concerning the location of habitable rooms and their windows on the northern and eastern elevation of Mr Walsh's existing house and therefore could not have properly understood the consequences of the finding of Mr Thomas in his reports that Mr Walsh's dwelling would not receive three hours of sunlight in habitable rooms, contrary to the development control in s 5.3 of PDCP; and

(b) The Council was mislead by Mr Thomas stating that the side setback control was 900mm when in fact the control in s 5.3 of PDCP further stated "side setbacks to the front portion of the site is to be not less than 900mm. Where the house extends further towards the rear of the block than neighbouring dwellings the set back is to be increased to maintain solar access". Accordingly, the Council should have considered whether the side setbacks should be increased beyond 900mm where the proposed dwelling extended further towards the rear of the block than Mr Walsh's existing dwelling. Disabled access 20 Mr Walsh claimed that the Council failed to consider the relevant matter of the impact of excavation of the public road reserve for construction of the driveway on disabled access. Such a matter was required to be considered by the Council because of the Disability Discrimination Act 1992 (Cth) and s 4.3 of PDCP. 21 I will deal with each of these challenges. Height 22 As I have noted, Mr Walsh put his challenge on the ground of height in alternative ways depending on whether the definition of storey in the dictionary to the PLEP applies to cl 39(1) of PLEP. It is therefore necessary to deal first with the meaning of the word "storey" cl 39(1) of PLEP. 23 In my opinion, the word "storeys" in Clause 39(1)(a) bears its defined meaning in the dictionary to the PLEP. Clause 10(1) of PLEP provides that: "A term defined in the dictionary at the end of this plan has the same meaning when used in this plan". 24 Clause 10(1) does not include a phrase such as "unless the contrary intention" applies, although such a phrase is often implied: Buresti v Beveridge (1990) 158 ALR 445 at 447. A court construing a word or phrase which is expressly defined should commence its enquiry by assuming that the drafter intended the word or phrase to have its defined meaning. Only rarely will the court be justified in departing from that meaning: Gidaro v Secretary, Department of Social Security (1988) 154 ALR 550 at 561. 25 The definition of storey in the dictionary to the PLEP is: " Storey means the space within a building between one floor level and the floor level next above or, if there is no floor level next above, the ceiling or roof above but does not include: (a) space used for car parking, laundries or store rooms, if the ceiling space does not protrude more than 1.2 metres as measured vertically above the natural ground level immediately below, or (b) attic space that is part of the dwelling unit immediately below and is incapable of being used as a separate dwelling unit." 26 There is nothing in the context of cl 39(1)(a) which indicates a contrary intention of the drafter that storey should not bear its defined meaning. 27 The words "above ground level" in cl 39(1)(a) immediately after the word "storeys" does not provide a contrary intention. These words have work to do independently of the word "storeys". They focus attention on whether, if a building has more than two storeys, the extra storey or storeys is or are, above ground level. It is not necessary for me to decide whether the words "above ground level" refer to natural ground level or finished ground level. (Although I note that Jagot J in Makhoul v Parramatta City Council [2006] NSWLEC 386 (21 June 2006) at [41] held that ground level in Clause 39 means the finished or post development ground level.) 28 For example, a single dwelling may have three storeys because one of the storeys is a basement which is not excluded from the definition of storey by paragraph (a) of the exceptions. An example might be because a basement space is used for a purpose other than carparking, laundries or store rooms, these being the only purposes which a basement space can be used to fall within the exception in paragraph (a) of the definition of storey. If the basement, although a storey, is not above ground level, the building would nevertheless comply with the development standard in cl 39(1)(a) of PLEP. However, if any part of the basement storey is above ground level, the building would not comply with the development standard. The words "above ground level" immediately after the word "storeys" therefore have work to do. They do not demand that the preceding word "storeys" has a meaning which is different to its defined meaning in the dictionary to PLEP. 29 I also note that Jagot J held in Makhoul v Parramatta City Council [2006] NSWLEC 386 (21 June 2006) at [29] that the definition of "storey" in the dictionary is "the criterion of reference for the development standard in cl 39" and see also at [41]. 30 On this basis, the applicant's alternative argument, based on the word "storeys" in cl 39(1)(a) of PLEP not having its defined meaning, must be rejected. 31 On the applicant's first argument, therefore, only part of the basement has above it two storeys. This includes the space designated in the basement for carparking and the space designated as "equipements (sic) & plant room". The evidence establishes that no part of the basement protrudes more than 1.2 m as measured vertically above the natural ground level immediately below. Accordingly, the space in the basement used for carparking falls within the exception of paragraph (a) to the definition of storey and is excluded from being counted as a storey. 32 This leaves the space in the basement designated as "equipements (sic) & plant room". That room is not a space used for carparking or laundry, being two of the uses specified in paragraph (a) of the exceptions. The question is whether that space could be described as being used for "store rooms" being the third of the specified uses in the exception of paragraph (a). 33 The word "store rooms" is not defined in PLEP. It bears its ordinary meaning. The Macquarie Dictionary defines store room as: "1. A room in which stores are kept. 2. Room or space for storage." 34 The description of the space as "equipements (sic) & plant room" fixes the use as a room for plant and equipment. "Plant" refers to equipment that can not only be fixtures but can also be machinery and tools necessary to carry on a particular operation: see Macquarie Dictionary definition. Equipment itself includes "a collection of necessary implements (such as tools)": Macquarie Dictionary. 35 Plant and equipment are capable of being stored in a room. Accordingly, the "equipments (sic) & plant room" can fall within the description of a store room. The space used for equipment and plant room is therefore within the exception in paragraph (a) to the definition of storey and is excluded from constituting a storey. 36 The result is that the proposed building is only two storeys in height and does not exceed the development standard in cl 39(1)(a) of PLEP. Mr Walsh's challenge on this ground therefore fails. FSR 37 The phrase "floor space ratio" in cl 40(1) is defined in the dictionary to PLEP. Mr Walsh accepts that in this case the defined meaning in the dictionary is the meaning that the phrase "floor space ratio" in cl 40(1) bears. The defined meaning is: " Floor space ratio, in relation to a building, means the ratio of the floor space area of the building to the area of the allotment on which the building is or is proposed to be erected." 38 The "floor space area of a building" is in turn defined in the dictionary to be: " Floor space area of a building means the sum of the gross horizontal areas of each floor of the building contained within the inner faces of the outer walls measured at a height of 1.5 metres above the floor, including the space occupied by internal walls, staircase, lobbies, corridors and toilets, but not including: (a) the horizontal cross section of lift shafts and vertical service ducts measured between the wall faces internal to the lift shaft or duct, or (b) any space permanently set aside within the building for basement parking, other than spaces used for public car parking, and for the unloading or loading of vehicles, including ramps or other means of access to it, or (c) any space for the accommodation of mechanical or electrical plant or equipment servicing the building, or (d) any terraces and balconies with walls less than 1.5 metres high, or (e) attic rooms, or (f) in the case of single dwellings, one single car space with the dimension of 1.30metres in width and 5.5 metres in length, or (g) any space permanently set aside within basement carparking areas for storage, garbage rooms and the like." 39 Finally, the word "floor" is defined in the dictionary to mean: " Floor means a space within a building which is situated between one floor level and the floor level above or, if there is no floor above, the ceiling or roof above." 40 The last two definitions of "floor" and "floor space area of a building" are fatal to Mr Walsh's argument that each of the areas that he nominated were wrongly excluded from the calculation of the floor space ratio. 41 First, the majority of the areas do not have any floor, ceiling or roof above. On the ground floor, the deck around the swimming pool has only a small area covered by either the first floor or the roof (7.88m2). The front terrace has a slightly larger, but still relatively small, area that is covered by the first floor or the roof (17.42m2). However, the majority of both the pool area and the front terrace are without a floor, ceiling or roof. 42 On the first floor, the two voids within the building do have a ceiling above, but the floor area underneath this ceiling has already been taken into account in the calculation of the floor space ratio. The applicant sought to take the area into account again by projecting a hypothetical floor through the void at the first floor level. The definition of floor does not permit this approach. Finally, the balcony on the eastern side is open to the sky except for the small overhang of the roof on two sides (4.31m2). 43 The parts of the areas nominated by Mr Walsh which do not have a floor, ceiling or roof above cannot be considered to be a floor having regard to the definition of floor. 44 Secondly, even those parts of the nominated areas that do have a floor, roof or ceiling above still cannot be considered to be "within a building" or "contained within the inner faces of the outer walls" of a building. 45 The deck and planter bed around the pool are outside the building. The outer wall of the building is to the north of the deck, pool and planter bed. The fence around the outside of the pool, installed for safety and privacy reasons, regardless of its height, is not the outer wall of the building. Equally, the front terrace, although located on top of the basement, is not within the building. The outer walls of the building are to the north and east of the front terrace. The wall at the southern edge of the terrace, installed for safety and privacy reasons, regardless of its height, is not the outer wall of the building. The first floor and roof that project for a small distance over the northern side of the terrace do not connect with the wall on the southern edge of the terrace. That wall is a free standing feature. 46 Accordingly, these areas cannot be considered to be within the building and therefore cannot be counted as either a floor or part of the floor space area of the building. 47 Finally, for that part of the balcony on the first floor that is covered by the overhanging roof, it would be excluded by the exception in paragraph (d) of the definition of "floor space area of a building". The balcony has a balustrade but it is not a wall that is equal to or greater than 1.5 metres high. This area is therefore excluded from the floor space area of the building. 48 For these reasons, each of the areas nominated by Mr Walsh were properly excluded from the calculation of floor space ratio. 49 Mr Walsh's other area was in the basement. Mr Walsh said that, on a proper construction of the exceptions in paragraphs (b) and (f) of the definition of "floor space area of a building", paragraph (b) does not apply to single dwellings and instead paragraph (g) covers the field and is the exclusive entitlement to exclude space for carparking for single dwellings. I reject this construction of the definition of "floor space area of a building". There is no warrant to read paragraph (b) down. It applies to all basement parking regardless of the use of the building above the basement, whether a single dwelling, a residential flat building, high density housing or any other use. 50 The evident purpose of differentiating in paragraphs (b) and (g) between parking in basements and otherwise is to discourage using the building above ground level for parking for more than one vehicle. Carparking in a basement of a building does not add to the bulk and scale of the building, an objective of floor space controls. Carparking above ground level does add to the bulk and scale. An owner who wishes to have more than one carparking space will therefore be encouraged to place the multiple carparking in a basement because that will be excluded from the floor space area. If multiple carparking spaces were to be provided in the building above ground level, only one carparking space would be excluded from the carparking space area and the rest would have to be counted as part of the floor space area and hence reduce the floor space area available for other residential purposes. 51 The result is that Mr Walsh's challenge on the ground of non-compliance with the FSR development standard in cl 40 fails. Overshadowing 52 The Council undoubtedly did consider the impact of overshadowing caused by the proposed dwelling on the adjoining property of Mr Walsh. The issue was addressed in the shadow diagrams provided to the Council by both Dr Alam and by Mr Walsh, the statement of environmental effects by Dr Alam, the objections by Mr Walsh's planning consultant, Mr Danny Jones, and the council officers reports of 17 October and 12 December 2005. 53 Nevertheless, Mr Walsh's claim is that such consideration miscarried, first because the Council did not know the location of habitable rooms and their windows on the northern and eastern elevations of Mr Walsh's existing dwelling, including a sunroom extension on the eastern side, and secondly, because the Council did not consider the interrelationship of the side setback controls in PDCP and the overshadowing. 54 I reject this claim. It is important to remember the nature and scope of the review that is permissible of a decision on the ground of failure to consider a relevant matter. 55 Although the applicant asserted that it was not impermissibly reviewing the merits of the Council's decision and its fact finding on the issue of overshadowing, the respects upon which the applicant claims the Council's decision miscarried does precisely that. 56 An applicant dissatisfied with the merit assessment and outcome of an exercise of discretionary power by a consent authority make seek to disguise a challenge on those merits in terms of recognised grounds of judicial review, such as the relevant considerations grounds. A court should see through the disguise. The court must avoid the temptation to express the conclusion in terms of a recognised ground of review while in truth making a decision on the merits: Bruce v Cole (1998) 45 NSWLR 163 at 184. 57 The formulation of "proper genuine and realistic consideration", invoked by Mr Walsh to describe the consideration required from the Council in his submission, has been criticised by the courts. Too ready an employment of the test causes the category of judicial review of failure to consider relevant matters to elide into a review on the merits or an appeal on the facts: Bruce v Cole (1998) 45 NSWLR 163 at 186; Zhang v Canterbury City Council (2001) 51 NSWLR 589 at 601 [62]; Kindimindi Investments Pty Ltd v Lane Cove Council (2006) 143 LGERA 277 at 297 [73], [75], 298 [79]. 58 It is not for a party affected by a decision, or a reviewing court to make an exhaustive list of the matters which a decision maker might conceivably regard as relevant then attack the decision on the ground that a particular one of them was not specifically taken into account: Elliott v Southwark London Borough Council [1976] 1 WLR 499 at 507; Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363 at 375; Akpan v Minister for Immigration Ethnic Affairs (1982) 58 FLR 47 at 51, 52 and Noble v Cowra Shire Council (2001) 114 LGERA 440, 445 [16]. 59 The considerations that are relevant are to be identified "primarily, perhaps even entirely", by reference to the statute imposing the power on the decision maker rather than the particular facts of the case that the decision maker is called on to consider: Minister for Immigration and Multi-Cultural Affairs v Yusuf (2001) 206 CLR 323 at 347-348 [73] and see also Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 579 [195]. 60 The level of particularity with which a matter is identified in the statute may be significant where the failure complained of is not a failure to consider a certain subject matter, but a failure to make some enquiry about facts said to be relevant to that subject matter. For the applicant to succeed, the statute must expressly or impliedly oblige the decision maker to enquire and consider the subject matter at the level of particularity involved in the applicant's submission: Foster v Minister for Customs (2000) 200 CLR 442 at 452 [23]. 61 The relevant considerations ground is concerned essentially with whether the decision maker has properly applied the law. It is not a ground that is essentially concerned with the process of making the particular findings of facts upon which the decision maker acts: Minister for Immigration and Multi-Cultural Affairs v Yusuf (2001) 206 CLR 323 at 348 [74]. 62 An applicant who undertakes to establish that an administrative decision maker improperly exercised power should not be permitted under colour of doing so to enter upon an examination of the correctness of the decision, or of the sufficiency of the evidence supporting it, or of the weight of the evidence against it, or the regularity or irregularity of the manner in which the decision maker has proceeded. The correctness or incorrectness of the conclusion reached by the decision maker is entirely beside the question: R v War Pensions Entitlement Appeal Tribunal; Exparte Bott (1933) 50 CLR 228 at 242; Re Queensland Electricity Commission; Exparte Electrical Trades Union of Australia (1987) 72 ALR 1 at 4-5. 63 Proper consideration of a relevant matter does not demand factual correctness. It is wrong to equate relevancy with factual correctness: Akpan v Minister for Immigration and Ethnic Affairs (1982) 58 FLR 47 at 50. A wrong assessment of the consideration the decision maker takes into account is not a reviewable error of law: Brunetto v Collector of Customs (1984) 4 FCR 92 at 97-98. 64 In this case, the evidence does not support the Court drawing a finding that the Council failed to consider the facts concerning location of the habitable rooms or their windows or the impact overshadowing on those habitable rooms of Mr Walsh's dwelling. Although the precise location of the habitable rooms and their windows of Mr Walsh's existing dwelling was not expressly specified in the Council officer's report of 21 November 2005 and 12 December 2005, nevertheless having regard to:

(a) the shadow diagrams before the Council which showed a comparison between the minimal overshadowing of the northern and eastern elevations of Mr Walsh's existing dwelling caused by Dr Alam's existing house and the significant overshadowing of Mr Walsh's existing house that would be caused by Dr Alam's proposed house for more than three hours of the northern and eastern elevations;

(b) the submissions made by Mr Walsh's planning consultant which addressed the extent and significance of the overshadowing of Mr Walsh's existing house; and

(c) in the Council officer's reports, the assessment of the overshadowing impacts, the reference to the controls in PDCP requiring that dwellings within a development site and adjoining properties must receive a minimum of three hours sunlight in habitable rooms and the conclusions expressed by the Council officer in the reports that "the adjoining dwelling will not receive three hours of solar access along its northern elevation in mid winter" and that "despite the non-compliance in regard to overshadowing…" and the evaluation of why the non-compliance was acceptable in all the circumstances of the case.

The inference should be drawn that the Council must have considered the overshadowing on the habitable rooms and their windows of Mr Walsh's property. 65 Furthermore, the Council considered expressly the habitable rooms in Mr Walsh's proposed two storey dwelling house that was the subject of a development application being considered by the Council at the same time. The location of the habitable rooms and their windows was described and the overshadowing impacts analysed in the Council officer's reports of 21 November 2005 and 12 December 2005. The shadow diagram submitted also showed the overshadowing on Mr Walsh's proposed development. 66 Secondly, in relation to side setbacks, the evidence does not support the Court drawing an inference that the Council failed to understand the interrelationship of the side setback controls and overshadowing. Both reports of the Council officer noted that "the applicant has endeavoured to minimise the level of overshadowing by providing significant side setbacks to the southern side boundary ranging from 3m to 4m". The plans show setbacks with dimensions on the southern boundary. The statement of the Council officer in the tables of compliance in the reports that the side setback requirement is "900mm" must be understood in this context. The express reference to the increase in side setbacks to be between 3 and 4 m (ie beyond 900mm) to minimise the extent of overshadowing addresses the second sentence in the control in s 5.3 of PDCP that "where the house extends further towards the rear of the block than neighbouring dwellings the setback is to be increased to maintain solar access". 67 The Court should not read the Council's assessment and the reasons of the decision maker with an eye finely tuned for error: Minister for Immigration and Ethnic Affairs v Wu Shang Liang (1996) 185 CLR 259 at 291. 68 Accordingly, I reject Mr Walsh's claim that the Council failed to consider the relevant matter of the overshadowing by the proposed development of Mr Walsh's dwelling. Disabled access 69 Mr Walsh's final claim is that the Council was bound to consider the relevant matter of disabled access under cl 4.3 of PDCP. The particular matter Mr Walsh says ought to have been considered is the performance criterion that states: "Ground surfaces must be safe through the use of appropriate material and tactile indicators and useable by all". 70 Mr Walsh claims that the excavation of the road reserve to construct the access driveway will make the road reserve unable to be used for pedestrian access by all persons, including those with a disability. 71 Mr Walsh refers to evidence that after construction of the driveway crossing, the distance from the driveway crossing to the intersection of York and Bettington Streets and the rise of the land would mean that any footpath that might be constructed in the future could only achieve a gradient of 1 in 12. The applicant submitted that the relevant Australian Standard would recommend a grade of 1 in 14 for disabled access. Hence, the applicant submits, the construction of the driveway crossing would prevent in the future the Council being able to construct a public footpath at a gradient that would be useable by all. 72 Whilst is it true that s 79C(1)(a) of the Act states that a consent authority must consider an applicable development control plan, this means such provisions of a development control plan as are relevant to the development the subject of the development application. The section does not mandate consideration of the document in abstract. It is in the context of the particular development the subject of the development application: Randwick Municipal Council v Manousaki (1988) 66 LGRA 330 at 335. 73 The principles earlier stated in the context of the claim of failing to consider overshadowing are also apt in relation to this claim of failing to consider the matter of disabled access. 74 Upon the facts of the development the subject of the development application disclosed in the development application and found by the Council officer in his reports, the Council was not bound to consider at the level of particularity involved in the applicant's submission the issue of whether the excavation of the road reserve for the construction of the driveway access would impede or prevent the provision in the future by the Council of disabled access along the road reserve. 75 Further, even if the particular matter claimed were required to be considered, the applicant has not discharged the onus of proof that rests on it as challenger that the Council failed to consider this matter. The evidence establishes that:

(a) The original plans submitted by Dr Alam with the development application dated 28 November 2004 showed steps either side of the driveway cross in the road reserve.

(b) The statement of environmental effects submitted by Dr Alam that accompanied the development application stated that access into the site will be via a new concrete crossing Bettington Street. The crossing is very close to the level of the street and will serve in making the access to the property simpler. Furthermore, it will reduce the bottleneck effect which occurs on the junction of Bettington and York Street during the rush hour.

(c) Mr Walsh's first objection, lodged on his behalf by Mr Danny Jones on 3 February 2005, expressed concern as to the driveway crossing under the heading "streetscape impacts". It referred to the steps on the plans within the road reserve descending four rises to the driveway and up again on the other side. Such works within the road reserve were submitted to be "inappropriate and raised concerns with public safety and disabled access".

(d) Dr Alam's amended plans dated 24 June 2005 changed the design of the driveway crossing to remove the steps either side of the road reserve. The changed design was surrounded by a cloud to focus attention on the change.

(e) The Council, through its office of Mr Thomas, wrote to Dr Alam on 8 September 2005 requesting Dr Alam provide "details of the driveway grades, including a full length longitudinal cross section" and noting that the "driveway grades are to comply with AS 2890.1:2004".

(f) Dr Alam's further amended plans of 17 September 2005 provided details of the driveway and crossing, and continued to show no steps either side in the road reserve. The detailed design was again surrounded by a cloud focusing attention on the change.

(g) Mr Walsh's further submission, by Mr Jones dated 15 September 2005, continued to express concern in relation to the driveway under the heading this time of "Pedestrian and Vehicular Safety". He noted that the steps within the road reserve had been removed and that "the application now proposes to cut the footpath area although limited levels have been provided". He submitted that "such works within the road reserve are inappropriate and raise concerns in respect of public safety and disabled access".

(h) Mr Walsh's final submission, by Mr Jones dated 17 October 2005, repeated the concerns about the driveway crossing, again under the heading "Pedestrian and Vehicular Safety" and again in the same terms that had been stated in the 15 September 2005 submissions.

(i) The Council officer, Mr Thomas, in his development application assessment report of 21 November 2005, addressed "vehicular access, parking and circulation". He noted the basement had been reconfigured so as to allow vehicles to enter and exit the basement in a forward direction. This promoted traffic and pedestrian safety. He concluded "overall it is considered the vehicular access, parking and circulation for the proposed development is satisfactory and will not have a detrimental impact on local traffic or on surrounding property". More generally, Mr Thomas concluded "the development is not expected to result in any adverse environmental, social or economic impacts from the locality" and "overall the proposed development complies with the requirement of the PDCP and as such the subject site is considered suitable to accommodate the proposed development".

(j) The Council officer, Mr Thomas, in his report to the Council meeting on 12 December 2005, expressly dealt with each of the concerns raised by Mr Walsh, including in relation to traffic and pedestrian safety and the location of the driveway. Mr Thomas again noted that the ability to enter and exit the site in a forward direction will improve traffic and safety. He noted Mr Walsh's concern that "the location of the driveway is inappropriate and will reduce traffic and pedestrian safety". Mr Thomas concluded, however, "the driveway is located towards the southern boundary of the subject property approximately 12 m from the Bettington Road and York Street intersection. The location of the driveway is satisfactory and will not unreasonably impact on traffic and pedestrian safety".

(k) After making its decision, the Council wrote to Mr Walsh on 20 December 2005 advising of its decision and stating that its decision was made after considering the relevant planning controls for the locality and the matters raised in submissions, including Mr Walsh's submissions. 76 In these circumstances, the Court is not able to draw the inference that the Council has failed to consider the issue of the impact of construction of the driveway crossing on disabled pedestrian access along the reserve or the particular provisions of PDCP dealing with this matter. Conclusion 77 Mr Walsh has failed to establish each of the grounds of challenge pressed at the hearing to the validity of the Council's decision ad the development consent. Accordingly, the Court orders:

(2) The applicant pay the second respondent's costs of the proceedings, as agreed or assessed. **********

09/05/2007 - typographical errors - Paragraph(s) 15, 27, 40, 54, 56, 57, 58, 59, 61,63, 69, 72

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