Wechsler v City of Sydney Council [2014] NSWLEC 201 | Case summary

Wechsler v City of Sydney Council [2014] NSWLEC 201 | Case summary | Zoe

EX TEMPORE Judgment

By an Amended Summons filed on 4 November 2014, Robert Wechsler seeks leave to appeal under s 56A of the Land and Environment Court Act 1979 (NSW) (the Court Act) from a decision delivered by Morris C on 3 July 2013 (Wechsler v Sydney City Council [2013] NSWLEC 1116). By that decision, the Commissioner upheld, in part, an appeal brought to the Court under s 97AA of the Environmental Planning and Assessment Act 1979 (NSW) (the EPA Act). The elapsed period of nearly 15 months between the date of the decision on 3 July 2013 and 30 September 2014, when Mr Wechsler first filed his summons seeking to institute the present appeal, necessitates the present application for leave, effectively seeking an exercise of the Court's discretion to extend time to bring the appeal.
In adjudicating upon this application it is unnecessary to determine whether the period within which the appeal under s 56A may be commenced, as of right, is a period of 28 days from the date of the decision (Uniform Civil Procedure Rules 2005 (NSW) (UCPR) Pt 50, r 50.3(1)(a)) or 60 days from the date of the decision (Land and Environment Court Rules 2007 (NSW) (LECR), r 7.1(1)(a)). Clearly, commencement of the present appeal proceedings was well outside the time stipulated in either of those rules.
Mr Wechsler is the owner of a six level residential flat building at 5 Tusculum Street, Potts Point. Development consent was originally granted for the erection of that building in 1962. That consent has since been modified on a number of occasions.
On 13 December 2012, Mr Wechsler made application to the Council of the City of Sydney (the Council) pursuant to s 96 of the EPA Act further to modify the development consent in a number of respects. On 11 January 2013, the consent of the Council was given to some of the modifications sought but the remainder were refused. Being dissatisfied with that decision, Mr Wechsler appealed to the Court pursuant to s 97AA of the EPA Act.
On the hearing of the appeal before the Commissioner, the Council did not press its opposition to two of the modifications that were sought. One of the modifications sought, and not ultimately opposed, was the deletion of condition 12. Allowing the development consent to be modified by deleting that condition founded the Commissioner's order that Mr Wechsler's appeal be upheld in part.
The four contentious modifications that were debated before the Commissioner were: 1. the removal of required planter boxes on the periphery of the balconies on Level 6 and the reduction of balcony balustrade height at that level to 1m; 2. the addition of pergolas with tinted glazing on Level 6 to the north and south elevations of the building; 3. glazing of the approved pergolas on Level 5; and 4. reduction in the length of the western and eastern pergolas on Level 6 by 1.1m and installation of tinted glazing at that level. As summarised by the Commissioner in her judgment at [3], the critical issues for determination were: "whether planter boxes should be deleted and balustrading reduced in height around upper floor terraces; whether tinted glazing should be added to approved pergolas and whether additional pergolas should be added at the sixth floor to the north and south elevations."
In addressing the reduction in balustrade height and removal of planter boxes on Level 6, the Commissioner rejected those modifications, effectively on the basis that the retention of those items, as approved, appropriately addressed the impact upon the amenity of adjoining landowners whose private open space would be overlooked by persons on the Level 6 balcony (at [24]). The additional pergolas on Level 6, together with the tinted glazing proposed at that level, were rejected on the basis that the building would be "excessive in terms of bulk and scale and have detrimental impacts on the streetscape of the area", particularly in the context of a building that is "already significantly larger and taller than its immediate surrounds" (at [22]).
Following the decision of the Commissioner, Mr Wechsler sought legal advice and took a number of further steps in an endeavour to have the development consent for the building further modified. It will be necessary to refer later to some of these steps. However, for present purposes it is sufficient to record that in August 2014 Mr Wechsler lodged with the Council a further application to modify the development consent. The modifications then sought included modifications of the kind that had been considered but refused by the Commissioner, as well as some additional works. A further appeal to the Court pursuant to s 97AA of the EPA Act was filed on 1 October 2014, founded upon the deemed refusal of the August modification application.
The balustrade on Level 6 was constructed by Mr Wechsler at a height of 1m rather than the height of 1.4m that was required by the development consent. As a consequence, in August 2014, he also lodged with the Council an application for a building certificate for the balustrade as constructed. The Council did not determine that application, with the consequence that in October 2014 a further appeal was filed with the Court pursuant to s 149F(1) of the EPA Act. That appeal, together with the s 97AA appeal filed on 1 October 2014 have together been fixed for hearing on 11 February 2015.
The parties agree on the principles to be applied when an extension of time is sought in which to bring an appeal. If the time limit is that imposed by r 50.3(1)(a) of the UCPR, the power of the Court to extend time is found in r 50.3(1)(c). If the time limit be governed by r 7.1 of the LECR, the power to extend time is found in r 7.3(1). The relevant principles are summarised in the recent judgment of McColl JA in Jingalong Pty Ltd v Todd [2014] NSWCA 330 where her Honour said at [39]-[40]: "39. The discretion to extend time for the filing of a notice of appeal is given for the sole purpose of enabling the court to do justice between the parties. Accordingly the discretion can only be exercised upon proof that strict compliance with the rules will work an injustice to [the applicant]. In order to determine whether the rules will have that effect, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time: Gallo v Dawson [1990] HCA 30; (1990) 64 ALJR 458 (at 459) per McHugh J. 40. The four factors of general relevance to an application to extend time within which to appeal are the length and reason for the delay, whether the applicant has a fairly arguable case and the extent of any prejudice suffered by the respondent to the application: Tomko v Palasty (No 2) [2007] NSWCA 369; (2007) 71 NSWLR 61 (at [55]) per Basten JA (Hodgson and Ipp JJA agreeing)."
The Applicant's Amended Summons identifies three grounds of appeal and twelve grounds or bases to support the application for the grant of leave out of time. In addition to the matters stated in the Amended Summons, affidavit evidence affirmed by Mr Wechsler was read on the hearing of the application before me without objection by the Council. The Council did not seek to cross examine Mr Wechsler in respect of that evidence.
I also record that until the hearing before me for leave to appeal out of time, Mr Wechsler has been self-represented. He appeared, in person, before the Commissioner and his summons seeking leave to appeal was also prepared without the benefit of legal representation. He was represented before me by counsel.
Mr Wechsler's explanation for his delay in instituting the present appeal is found in his evidence. Upon receipt of the Commissioner's decision, he sought counsel's advice as to whether he should pursue an appeal under s 56A of the Court Act. At the time of seeking that advice, he did not have a transcript of the proceedings. He says that the substance of the advice received was to the following effect: 1. there did not appear to be grounds for a successful appeal; 2. any appeal could take from one to two years to resolve, with the prospect that the Council would engage senior and junior counsel to appear and, if the appeal is unsuccessful, there would be costs implications; 3. it is more appropriate to make a fresh s 96 Application to the Council, incorporating changes that are acceptable to Mr Wechsler enabling him to return to Court, if need be, within 40 days instead of a delay of one or two years. Upon questioning his then counsel as to whether the decision of Morris C could be used "against" him in a subsequent application, he states that further advice given to him was to the effect that each application was a merit application with the result that the Council could not rely upon the decision of the Commissioner provided the further application he made was not identical with the application that the Commissioner had determined.
Mr Wechsler accepted that advice and proceeded to take further steps in an endeavour to achieve his objective.
In October 2013, he lodged a further application under s 96 of the EPA Act with the Council which was refused in December 2013. Following that refusal he communicated with a City councillor who suggested the lodgement of a development application rather than an application for modification of the present consent. As a consequence, a fresh development application was lodged with the Council which was not determined by it and resulted in an appeal being filed with the Court in May 2014 pursuant to s 97 of the EPA Act. Some interlocutory steps were taken in those proceedings but on advice from a different legal practitioner, Mr Wechsler discontinued that appeal in August 2014. It was then that he lodged with the Council the further s 96 application and building certificate application to which I have earlier referred.
At about that time Mr Wechsler came to understand that in hearing the appeals listed for February next, the Council would rely upon the decision of Commissioner Morris as indicating the manner in which the presiding Commissioner should determine those applications. The position of the Council in that regard is encapsulated in an email sent to Mr Wechsler by the Council's solicitor on 8 December 2014 which relevantly states: "The decision of Commissioner Morris is not legally binding on the Commissioner, whoever that is, who hears the upcoming appeal in February … Do not be surprised if the Council brings the Commissioner's attention to the decision of Commissioner Morris and makes submissions, that on the merits, the current proposal ought be refused, for similar types of reasons. However, the Council cannot and will not submit that the decision of Commissioner Morris is legally binding and must be followed as a matter of law." Reference is made in that email to the decision of the Court of Appeal in Segal v Waverley Council [2005] NSWCA 310; 64 NSWLR 177, with particular reference to the observations made by Tobias JA at [56].
Founded upon this evidence, it is submitted that although the delay in commencing the present appeal proceedings is considerable, adequate explanation for that delay lies in the circumstance that legal advice was promptly sought, accepted and acted upon. It was only much later when Mr Wechsler appreciated, notwithstanding the advice he had received, that the Council would seek to rely upon the decision of Morris C in the pending appeal proceedings.
In the course of argument before me, the Council has indicated its acceptance of the proposition that the modifications sought in the proceedings listed for determination in February next do differ from the application determined by Morris C, with the consequence that no submission will be made for dismissal founded either upon estoppel or abuse of process. Nonetheless, it does propose to rely upon the Commissioner's determination of the two critical issues that I have identified and to submit that, as a matter of comity, the decision of Morris C should be followed when determining the forthcoming proceedings.
The Council correctly accepts that the Commissioner determining the forthcoming proceedings would not be obliged, in law, to refer to the decision of Morris C (Segal v Waverley Council at [56]). However, the observance of comity, supporting the desirability of reference to another Commissioner's decision made in circumstances having direct relevance to a determination to be made in pending proceedings, gives to the former decision a status that it would not have if found to be infected by legal error. Thus, the delay in bringing the present summons and the explanation for that delay is very much a consideration interrelated with the grounds of appeal and their prospects of success in order to determine whether the extension of time to bring the appeal should be granted.
The appeal grounds identified in the summons filed by Mr Wechsler are expressed as follows: "1. Breaches of the Land and Environment Court Act (including s 31) and denial of natural justice 2. Denial of natural justice 3. Determination based on incorrect statutory controls." Extensive particulars are provided in respect of each of those three grounds.
In the course of argument, Mr Wechsler's counsel indicated that Ground 3 would not be pursued. As a consequence, I do not consider that ground any further.
While Ground 1 refers to a breach of s 31 of the Court Act, a breach of that section was not, in terms, argued on the hearing before me. That section, properly construed, seems to me to be directed to irregularities in the commencement of proceedings in a Class of the Court's jurisdiction that is seen to be inappropriate to the nature or substance of the matter sought to be agitated in those proceedings. In such circumstances, the section allows the Court either to dismiss the proceedings or, in effect, to deal with the proceedings as if they had been commenced in the appropriate Class of the Court's jurisdiction. The only Class of proceedings in which Mr Wechsler's s 97AA appeal could be entertained is Class 1 of the Court's jurisdiction (s 17(d) of the Court Act), with the consequence that no breach of s 31 arises for consideration. That is the Class in which the proceedings were brought.
That leaves for consideration the essence of appeal Grounds 1 and 2 which is denial of "natural justice" or procedural fairness in the conduct of the proceedings before the Commissioner. I add that, despite reference to a breach of s 31 in appeal Ground 1, all of the particulars given in respect of that ground, are directed to matters of procedural fairness.
For the purpose of the present application it is therefore necessary to consider whether there is a "fairly arguable" case on this ground (Jingalong at [40]). A determination that the ground is fairly arguable does not equate to a determination that the ground is established, such that an appeal will be allowed. That is for that final hearing of the appeal, if an extension of time is granted.
The foundation for an appeal under s 56A of the Court Act is that it be against an order or decision of a Commissioner "on a question of law". A failure on the part of a Commissioner to accord procedural fairness in making a decision disposing of proceedings in Class 1 of the Court's jurisdiction or in the process of arriving at that decision involves an error in a decision on a question of law and thereby founds an appeal under the section (Botany Bay City Council v Pet Carriers International Pty Ltd [2013] NSWLEC 147; 201 LGERA 116 at [100]).
The particulars given in the Amended Summons to appeal grounds 1 and 2 identify a number of matters directed to the claimed denial of procedural fairness. For present purposes, it is unnecessary to refer to all of the instances of which particulars are given by Mr Wechsler.
For the purpose of understanding this ground of appeal, Mr Wechsler has tendered, without objection from the Council, a transcript of the evidence taken before the Commissioner on 18 June 2013. That transcript is apparently a transcription privately made from a compact disc recording of the hearing. The transcript does not contain line references but page numbers are included.
It appears that an inspection of the building in question and its environs took place on the morning of the hearing. As the transcript records, the Commissioner identified that inspection as having taken place "in the company of the parties, residents and the Council's expert" and included observation of adjoining properties said to be impacted by the development proposed. When the hearing commenced in Court, Mr Wechsler indicated that he wished to give "expert and factual evidence" himself. He recited his academic qualifications and experience as an engineer and licensed builder. The immediate response of the Commissioner was to say: "You can't do that unfortunately, you can make submissions."
Some debate then ensued with the Council's legal representative who opposed Mr Wechsler giving evidence. In the course of that debate the Commissioner said to Mr Wechsler (Tcpt 6): "I am not prepared to allow you to enter the witness box and give evidence on any of these matters. What I am prepared for you to do is give submissions in relation to all of the council's contentions. That will allow any cross examination of Mr Nash [the council's consultant planner] in relation to the expert report that will become, I'm imagining, a tender of the council very shortly." After further questioning by Mr Wechsler, the Commissioner continued (at Tcpt 7): "If you were to give evidence I would struggle in separating your expertise from your advocacy and that's what the purpose of submissions are. So because you are the advocate, you are the owner of the property, you are the person who is ultimately to benefit from any decision of this Court in the event that you win the appeal you would need to make submissions based on the evidence or contradict the evidence of Mr Nash through that process."
Mr Wechsler then asked: "If I understand it, that I am not able to give an opinion evidence but I am able to present a fact. Is that correct, verifiable objective fact? It doesn't need expertise if it's objective. Have I got that right …" The Commissioner responded: "Yes, to [sic], as long as it's in the form of a submission." The hearing then proceeded on the basis that Mr Wechsler was able to make submissions but not enter the witness box, even for the purpose of giving what was potentially factual evidence.
Furthermore, Mr Wechsler had prepared, filed and served in advance of the hearing, a document that was entitled Applicant's Evidence in Reply. When Mr Wechsler sought to tender that document, not as expert evidence, but as factual evidence (Tcpt 32), the Commissioner declined to accept the document as evidence stating: "Well I'm happy to hear what you say the facts are in your submissions."
The document was then received by the Commissioner as an aid memoire. She stated that it would not be received as evidence in the proceedings.
Why Mr Wechsler was not permitted to give factual evidence in proceedings where, by operation of s 39 of the Court Act, the Court is not bound by the rules of evidence, does not appear from the transcript, at least from those parts to which I was referred. The apparent failure to allow Mr Wechsler to give evidence would, at least by reference to those parts of the transcript to which I was referred, indicate a fairly arguable case to contend that he was denied a fair hearing. That observation is made particularly pertinent when one has regard to the conclusion expressed in [22] of the Judgment in the following terms: "22. On the basis of the site view, consideration of the planning controls and the evidence before me, I accept the evidence of the residents and Mr Nash that the proposed works would be excessive in terms of bulk and scale and have detrimental impacts on the streetscape of the area." If the statements from the residents as to their perception of impact was to be received as "evidence", one must ask rhetorically, why evidence, rather than submissions directed to the same matters, would not have been relevant and appropriate to be received from Mr Wechsler?
In the course of the hearing, Mr Wechsler sought to advance what he described as a compromise offer directed to modifications sought on Level 6 of the building. According to the transcript, that compromise proposal had been prepared by Mr Wechsler as a result of something that had transpired in the course of a conference held before a different Commissioner under s 34 of the Court Act. Advancing the compromise offer was opposed by the Council. In the course of considering whether Mr Wechsler's compromise proposal should be allowed by way of amendment to his application, the transcript records the Commissioner as saying to Mr Wechsler (Tcpt 38): "The whole history of the whole application, its all up for grabs. I might decide I didn't like the 6th floor and take it off, you know, I can do that if I want. So I don't have to grant the leave."
In his affidavit filed in support of the application for leave to extend time, Mr Wechsler has stated that upon hearing the Commissioner's statement as to her power to "take off" the 6th floor, he was concerned that he may lose the benefit of the development consent that he held, so far as it related to the 6th floor. Accordingly, it affected the manner in which he approached the presentation of his case.
The transcript does not record any statement by the Commissioner identifying the source of power that she had to "take off" the 6th floor. Given that the application with which she was dealing was an application for modification of the development consent that had sanctioned the construction of the 6th floor, I am unable to identify any source of power that would have enabled the Commissioner to take the course that she stated was available to her. When I enquired of the Council's legal representative of any source of power or procedural context that may have founded the making of such a statement, no explanation or justification was offered.
If such a statement had been made to a legal practitioner in the course of the hearing, it may have been perceived as one lacking any apparent legal foundation. However, in the absence of further consideration of its context, that statement, so it seems to me, is one that would reasonably have the impact that Mr Wechsler identified. Thus, it provides a further basis upon which to identify the procedural fairness ground of appeal as being fairly arguable.
Independently of the concern raised in respect of the statement of the Commissioner just identified, is a concern as to the manner in which the Commissioner appears to have dealt with the compromise offer advanced by Mr Wechsler. He was refused leave to amend his application or, as I have earlier said, to give evidence in support of it. Nonetheless, he was expressly permitted to cross examine the Council's consultant planner in relation to that compromise which included the application of translucent strips to a glazed lowered balustrade on Level 6 so as to impede or filter views into adjoining property. The judgment delivered by the Commissioner at [19] and [27] addressed that aspect of the compromise proposal and rejected it as being appropriate. That, so it seems to me, identifies a further basis upon which the procedural fairness ground is fairly arguable. In effect, the compromise issue appears to have been determined without affording the Applicant an opportunity to give evidence in respect of it.
As I have said, for the purpose of the present application, I need not consider the additional particulars of this ground of appeal. Accepting that the matter has not been fully argued and, in particular, that the whole of the transcript has not been examined, those particulars that I have examined sufficiently demonstrate that the procedural fairness ground of appeal identified by Mr Wechsler is fairly arguable.
The Council opposes the grant of leave, essentially by reason of the long delay in commencing the appeal, the absence of any real prejudice to Mr Wechsler and the prejudice occasioned to the Council and to those residents who had opposed the modifications that were sought. I have already addressed the delay and the explanation offered by Mr Wechsler.
Affording procedural fairness to a party to proceedings is fundamental to the administration of justice. Thus, where there is an arguable case that proceedings have not been conducted according to law because procedural fairness has been denied, a court should, in my view, be slow to deny an aggrieved party a right fully to ventilate an appeal founded on that ground unless there are other factors that militate against the requisite leave being granted.
The prejudice that is claimed by the Council is twofold. First, it submits that it ought not be put to the expense of defending an appeal when Mr Wechsler has current Class 1 proceedings fixed for hearing and in respect of which the Council has incurred expense. Second, it submits that the residents who had objected to the modification on the basis that the amenity of their respective properties would be affected are entitled to expect, after such a long period, that the issue had been resolved by the Commissioner's decision.
There would be substance in these submissions if nothing further had occurred in respect of Mr Wechsler's building since July 2013. However, the further applications that he has made to the Council and the pending appeals demonstrate that the Level 6 balustrade and pergolas have remained live issues and necessarily will require consideration in the proceedings presently fixed for hearing in February next. Neither the Council nor resident objectors (assuming they have been informed by the Council of the pending proceedings) could reasonably have believed that the issues had been resolved by the Commissioner's decision.
The Council further contends that the denial of an extension of time to Mr Wechsler will not result in any injustice to him. It points to the pending proceedings as a demonstration of the alternate remedies available. As the Commissioner's decision would not present a legal impediment to a different decision being reached by a Commissioner determining the pending appeals, it is submitted that no prejudice or injustice is occasioned to Mr Wechsler.
In my opinion there is potential injustice to Mr Wechsler. If the decision of Morris C is one made without having afforded Mr Wechsler procedural fairness then it is a decision that could not lawfully be considered as having any persuasive affect upon the Commissioner determining the pending proceedings. No occasion for application of the principle of comity would arise. However, as I have indicated, if the decision stands then, while not binding, it is relevant to be considered when determining those proceedings.
For these reasons I have concluded that leave to appeal on Appeal Grounds 1 and 2 should be granted with time extended to commence the appeal until 30 September 2014, that being the date upon which the Summons first seeking leave to appeal was filed by Mr Wechsler.
The orders that I make are therefore as follows:
Extend time to appeal under s 56A of the Land and Environment Court Act 1979 from the decision of Commissioner Morris given on 3 July 2013 to 30 September 2014.
Grant leave to appeal in respect of grounds 1 and 2 of the Grounds of Appeal nominated in the Applicant's Amended Summons seeking leave to appeal and filed on 4 November 2014.
Costs of the application for leave to appeal be costs in the proceedings.
Exhibits on the Motion may be returned.
Stand over the proceedings to 2.00pm today before me for directions.

Wechsler v City of Sydney Council

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Judgment (4 paragraphs)

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