Walton v Blacktown City Council

Judgment 1This is an appeal against part of the decision of a Commissioner of the Court pursuant to s 56A of the Land and Environment Court Act 1979 (LEC Act). Such an appeal is limited to questions of law. I emphasise this because the applicant, Mr Lance Walton, who appeared on this appeal in person (although he was legally represented before the Commissioner), often criticised the merits of the Commissioner's decision and findings in his oral submissions. On a s 56A appeal the Court cannot go into the merits. There are also brief written submissions for the applicant, which were prepared by the lawyer who appeared for him before the Commissioner. 2The Commissioner upheld in part an appeal by Mr Walton against conditions imposed by Blacktown City Council when granting a deferred commencement consent for a five bedroom group home at 8 Kirkman Road, Blacktown: Walton v Blacktown City Council [2011] NSWLEC 1261. The applicant's summons commencing the s 56A appeal states that the appeal is from that part of the Commissioner's decision imposing conditions for a caretaker, a plan of management, limiting the number of people allowed to reside at the group home, requiring a smoke alarm in the dining room, requiring emergency lighting opposite a bedroom, requiring a fire extinguisher, requiring signage for a curfew, and requiring two sets of garbage bins. 3The development is subject to State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP). 4The applicant's first contention is that the conditions were imposed only for the reason that the development is for the purpose of a group home, and therefore under cl 46(1)(b) of the SEPP there was no power to impose them. Clause 46(1)(b) provides: 46 Determination of development applications (1) A consent authority must not: ... (b) impose a condition on any consent granted for a group home only for the reason that the development is for the purpose of a group home. The contention is based on the word "only" in this provision. The contention underpins appeal grounds 2, 3 and 4 (there is no appeal ground 1). 5The Commissioner had regard to the fact that up to ten unrelated persons could be accommodated on a transitional basis in the proposed group home and considered its likely impact on the residential district in which it was to be located. He said that this was a relevant matter for consideration under s 79C(1)(b) of the Environmental Planning and Assessment Act 1979 (EPA Act). He concluded that a caretaker and a plan of management would minimise likely impacts of the proposal on the surrounding residential area: at [20] - [21] and [25] - [26] of the Commissioner's judgment. Mr Glenn Apps, a town planner who gave evidence for the council, indicated in his evidence that there were a wide range of developments, including group homes, where a plan of management is an appropriate mechanism to ensure the proper operational management of the activity. 6In earlier proceedings between the same parties relating to development consent for other premises to be used as a group home, Walton v Blacktown City Council [2011] NSWLEC 1008, Tuor C held at [32], and I agree, that a condition requiring a plan of management and a caretaker could be imposed not because the proposal is a "group home" as defined, but rather because of the number of unrelated people that can be accommodated within the facility, which raised the potential for conflict and unacceptable internal and external social impacts. To mitigate this impact, it was held that there needed to be clear guidelines as to the rights and responsibilities of the occupants and the operator in the form of a plan of management and an on-site manager or caretaker. 7In the present case, I can see nothing in the Commissioner's judgment or the material before me which establishes that any of the conditions were imposed "only" for the reason that the development was for the purpose of a group home. Accordingly, in my opinion, cl 46(1)(b) of the SEPP was not breached and the related grounds of appeal fail. 8The applicant's next contention is that the Commissioner erred in law because he should not have admitted and had regard to the expert evidence of Mr Apps and Mr Adam Matlawski. This contention underpins appeal grounds 6 and 7 and, it seems, 5 (no other contention or submission relates to ground 5 which alleges error in not requiring properly admissible, as opposed to speculative, evidence of detrimental impact, etc). Both men were council employees. Mr Apps is a town planner and his evidence related to impact of the development. Mr Matlawski's evidence related to fire safety, building classification and Building Code of Australia (BCA) issues. He expressed the opinion that the use of the subject premises for the purposes of a group home made it a Class 1(b) building and not a Class 1(a) building under the BCA. The applicant's Statement of Facts and Contentions before the Commissioner acknowledged that if the building was Class 1(b), clauses of the BCA requiring fire safety measures applied. 9In my opinion, there is no basis for the applicant's contention. In Class 1 proceedings such as these, relevance is the primary test of admissibility because the Court is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate and as the proper consideration of the matter before the Court permits: s 38(2) LEC Act: King v Great Lakes Shire Council (1986) 58 LGRA 366 at 371 per Cripps CJ. However, expert evidence stands in a special category because of the application of Part 31 Division 2 of the Uniform Civil Procedure Rules 2005 (UCPR) relating to expert evidence, which (among other things) requires that an expert witness comply with the Expert Witness Code of Conduct set out in Schedule 7: UCPR r 31.23. Expert evidence may be rejected because of lack of impartiality, but the mere fact that an expert witness is or was an employee of the party retaining the expert is insufficient, of itself, to lead to rejection: Pittwater Council v A1 Professional Tree Recycling Pty Ltd (No 2) [2008] NSWLEC 325, 165 LGERA 1 at [11] per Biscoe J. 10On the material before the Commissioner, Mr Apps and Mr Matlawski had sufficient expertise to express the opinions that they did and there was a sufficient basis of fact for their opinions. I do not accept the applicant's submissions to the contrary. Nor do I see any basis for his submissions that: (a) in accepting their evidence, the Commissioner failed in his duty to adjudicate the related issues; and (b) those experts did not act impartially and acted as advocates for the council. They acknowledged their obligations and duties as experts as required by the Expert Witness Code of Conduct. Accordingly, these grounds of appeal fail. 11Next, grounds of appeal 8 and 9 are that the Commissioner erred in law in not revoking the conditions on the ground that they were not imposed for a relevant planning purpose and did not fairly and reasonably relate to the development for which permission was given. The applicant's submission is that the only relevant planning purposes were under the SEPP, the Commissioner did not confine himself to those purposes, and if he had he would have revoked the conditions as they were not such as would be imposed under the SEPP. I reject the submission. The Commissioner had regard to mandatory matters under s 79C of the EPA Act, as he was obliged to do. Having done so, he decided to impose the conditions. It was open to him to do so. No error of law is disclosed. Accordingly, these grounds of appeal fail. 12Next, the applicant contends that the condition requiring an on-site caretaker was not one which a council properly advised might require because it is not required under the SEPP and because there was no admissible evidence that a number of unrelated adults cannot live together without the supervision of a live-in caretaker. This submission appears to relate to appeal ground 10 alleging, in effect, manifest unreasonableness but expressed to apply to all the conditions ("on the ground that they were not reasonable in the sense that they were conditions which a reasonable local authority properly advised might impose"). It is true that the SEPP does not say that an on-site caretaker is required. However, the condition was imposed having regard to the Commissioner's assessment of the impact of the development, to which he was required to have regard under s 79C(1)(b) of the EPA Act. I have referred above at [6] to earlier authority on this point. The Commissioner agreed with Mr Apps that there was a likelihood of impacts from the development because of the use of a single dwelling to house up to ten unrelated persons on a potentially short term or temporary basis. The Commissioner considered that the character of the area, which was predominantly, if not exclusively, residential dwellings, was such that there was an obligation under s 79C(1)(b) to ensure that this residential character was protected and any impacts from other land use was minimised. He was satisfied that any likely impacts could be minimised through the existence of a resident caretaker: at [20] of the Commissioner's judgment. In my opinion, the alleged error of law is not established. Accordingly, this ground of appeal fails. 13Finally, appeal ground 11 is that there was no power to impose a condition for fire extinguishers or smoke alarms because the Commissioner erred in classifying the development as a Class 1(b) building under the BCA and ought to have found that it was a Class 1(a) building where fire extinguishers and smoke alarms are not required under the BCA. I have referred to the expert evidence relating to this matter above at [8]. It was open to the Commissioner to conclude that this was a Class 1(b) building. The applicant's Statement of Facts and Contentions before the Commissioner acknowledged that if that was so, then clauses of the BCA requiring fire extinguishers and smoke alarms applied. Before me the applicant, contrary to his position before the Commissioner, submitted that even if it were a Class 1(b) building, those clauses of the BCA did not apply. The submission was not developed so as to demonstrate its accuracy. In any case, the applicant is bound by the way his case was conducted before the Commissioner. The alleged error of law has not been established and this ground of appeal fails. 14On 10 May 2012, the day after the hearing of the s 56A LEC Act appeal, there was received in the Court Registry a letter of that date from the applicant addressed to me enclosing a bundle of documents. Many of the documents have the applicant's handwritten comments on them. The letter and the comments appear to be in the nature of further submissions. The letter commences: "You finalised the hearing yesterday & quickly left the courtroom. I didn't expect this as I had some documents to give to you." The letter and enclosures came to my attention just after lunch on 10 May after I had written the above judgment, and after my tipstaff had notified the parties that judgment would be delivered the next day. I do not know whether the letter and enclosures were received in the Registry before or after that notification. There is no indication that the letter and enclosures have been served on the respondent. I have marked them "MFI 1" and they will remain with the papers. I have looked at them for the purpose of considering whether I should reconvene the hearing in order to give the applicant the opportunity to apply for leave to re-open with the object of tendering the documents and putting forward the letter and comments as further submissions. I have concluded that this is unnecessary and will unreasonably delay finalisation of the matter (see s 56 of the Civil Procedure Act 2005) because even if leave were to be granted and I were to have consequential formal regard to the letter and enclosures, they do not alter my conclusions and reasons expressed earlier. I would only add that, to say the least, it is difficult to see how those enclosed documents could be entertained in this appeal. 15In summary, the applicant has failed to establish any of the alleged errors of law by the Commissioner and all grounds of appeal fail. Accordingly, the orders of the Court are as follows: (1)The appeal is dismissed. (2)The applicant is to pay the respondent's costs of the appeal. (3)The exhibit may be returned to the respondent. 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: 11 May 2012