Solicitors:
Self-represented (Applicant)
N/A
File Number(s): 10816 of 2014
[2]
EX TEMPORE Judgment
Robert Wechsler is the owner of a residential flat building at 5 Tusculum Street, Potts Point. That building was erected pursuant to a development consent granted in 1962. The consent and the building have been modified on a number of occasions since.
On 13 December 2012, Mr Wechsler made application to the Council of the City of Sydney (the Council) pursuant to s 96 of the Environmental Planning and Assessment Act 1979 (NSW) (the EPA Act) to further modify the development consent in a number of respects. On 11 January 2013, the consent of the Council was given to some of those 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.
That appeal was heard by Morris C on 18 June 2013. In a reserved decision delivered on 3 July 2013 the appeal was upheld in part (Wechsler v Sydney City Council [2013] NSWLEC 1116). The part upheld allowed modification of the development consent by deletion of Condition 12. The other modifications then sought by Mr Wechsler included modification of elements of the built form that were not upheld by the Commissioner.
Mr Wechsler now appeals pursuant to s 56A(1) of the Land and Environment Court Act 1979 (NSW) (the Court Act) from so much of the decision of the Commissioner as did not sustain the modifications that he had sought. His appeal is confined by the section to a question of law.
The grounds of appeal 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.
Before turning to consider those grounds of appeal, it is necessary to refer both to the background to the appeal and the conduct of the appeal before me.
Following a contested hearing before me in December last, on 19 December I extended the time by which the present appeal could be commenced. (Wechsler v Sydney City Council [2014] NSWLEC 201 ('Wechsler 2014'). In the course of that decision I determined that there was a fairly arguable case to sustain the first two grounds upon which Mr Wechsler sought to sustain the appeal. My reasons for decision directed to those grounds, as expressed in that judgment, will alleviate the need to repeat, in detail, those same reasons in this judgment.
Mr Wechsler was self-represented before Morris C, as he was before me on the hearing of this appeal. Further, on 19 February 2015 the Council filed a submitting appearance in the appeal, with the consequence that the only appearance before me on the hearing of the appeal today has been by Mr Wechsler. I add that the Council's submitting appearance excluded submitting to any order for costs.
I have earlier identified three grounds of appeal, despite the fact that in 'Wechsler 2014' I had limited the appeal to grounds 1 and 2 in the summons. The Council subsequently consented to a variation of that order by allowing all three grounds to be argued. However, in his submissions before me, Mr Wechsler stated that ground 3 was not pressed and no submissions have been directed to it. Further, while ground 1 refers to s 31 of the Court Act, no reliance was placed upon a breach of that section (cf 'Wechsler 2014' at [22]). Rather, the argument on both grounds 1 and 2 was founded upon a denial of procedural fairness in the conduct of the hearing before the Commissioner. Mr Wechsler has today confirmed that, in substance, the procedural fairness ground is the sole ground he wishes to press.
In order to place the ground of appeal in context, it is necessary briefly to state the four contentious modifications that were left for determination by the Commissioner. Those contentions were:
1. the removal of required planter boxes on the periphery of the balconies on level 6 of the building 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 western and eastern pergolas on level 6 by 1.1m and installation of tinted glazing at that level.
As the Commissioner herself summarised the issues in her judgment at [3], the critical issues that she had to determine were quoted as being:
"… 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 on the amenity of adjoining land owners 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 on 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]).
As I have earlier said, the foundation for an appeal under s 56A(1) 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 afford 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 therefore is capable of founding an appeal under the section (cf Botany Bay City Council v Pet Carriers International Pty Ltd [2013] NSWLEC 147; 201 LGERA 116 at [100]).
Detailed particulars are given by Mr Wechsler in the summons, identifying the manner in which procedural fairness is claimed to have been denied to him.
In order to address this claim it is necessary to refer not only to the Commissioner's reasons, but also to the transcript of the proceedings before her. That transcript is one prepared by a private transcription service from a disk containing the electronic sound recording of the proceedings. That disk was supplied to Mr Wechsler by the Court. The transcript upon which he relies was also relied upon in the hearing of the leave application before me in December last, with no objection being taken to its use by the Council. As a consequence, I am prepared to rely upon it for the purpose of determining this appeal.
As 'Wechsler 2014' makes clear, a fundamental basis upon which a denial of procedural fairness is claimed is that Mr Wechsler sought to give evidence of factual matters directed to the issues in the proceedings. He was not permitted to do so. The Commissioner required that his participation be confined to the making of submissions. Matters relevant to this ground are discussed in more detail at [28]-[32] in 'Wechsler 2014'. I do not repeat that detail. The circumstances in which that denial was made do not provide any sound basis for the course that was taken.
An issue relevant to the determination was the extent to which adjoining owners could be overlooked from the sixth floor balcony of the subject building. The separation distance between properties was therefore relevant in that regard. The distance that separated buildings in proximity to Mr Wechsler's building was a question of fact. Mr Wechsler in his document entitled "Evidence in Reply", which the Commissioner refused to receive as evidence, did seek to give evidence on that question. It purported to state distances measured and the manner in which those distances had been measured. The Commissioner expressly received the document only as an aide memoire to Mr Wechsler's submissions (Tcpt 32:12-24; 33: 24-27).
As I said at [33] of 'Wechsler 2014', why Mr Wechsler was not permitted to give that factual evidence in proceedings in which, by operation of s 39 of the Court Act, the Court is not bound by rules of evidence, is not made apparent. The failure to permit Mr Wechsler to give that evidence indicates, to my mind, support for his contention that he was denied a fair hearing.
That failure is made particularly pertinent when one has regard to the conclusion expressed at [22] of the judgment where the Commissioner said:
"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 residents as to their perception of impact was to be received as "evidence", one searches in vain to find an explanation as to why evidence, rather than submissions directed to the same matters, would not have been relevant and appropriate to be received from Mr Wechsler.
The refusal to allow Mr Wechsler to give evidence, but only to make submissions, seems to me to deny him, as a party, the right to a fair hearing. Clearly, by restricting Mr Wechsler as she did, the Commissioner drew a distinction between submissions and evidence. The inevitable consequence of that distinction is that any matter of fact stated from the well of the Court would not be considered by her in the same way as any matter stated from the witness box. Apart from submissions of law, submissions should obviously be founded only upon evidence, either oral or documentary, that has first been received as such in the course of the hearing. Mr Wechsler was denied the opportunity to provide evidence upon which to found his intended submissions.
The second matter relied upon to support the contention that there was a denial of procedural fairness is, or arises from, a statement made in the course of the proceedings, by the Commissioner. As the transcript reveals, Mr Wechsler had sought to advance what he described as a compromise offer directed to modifications sought on level 6 of the building. It would appear that the compromise offer had been signalled to the Council in advance of the hearing. Mr Wechsler's entitlement to advance that compromise in the course of the hearing was opposed by the Council. In the course of Mr Wechsler's endeavour to persuade the Commissioner that the compromise proposal should be received, at least by way of amendment to his application, the transcript records the Commissioner as saying to Mr Wechsler (Tcpt 38:23-26):
"The whole history of the whole application, it's 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 evidence that I received on the leave application and recorded in 'Wechsler 2014' at [35], Mr Wechsler stated that upon hearing the statement by the Commissioner he was concerned that he may lose the benefit of the development consent that he held so far as it related to the sixth floor. Accordingly, it affected the manner in which he approached the presentation of his case. My observations directed to that exchange are referred to in [36] of 'Wechsler 2014'. I do not repeat the observations there made.
I accept that as a litigant in person Mr Wechsler may properly have perceived the statement, whatever its intention may have been, to indicate that he was potentially exposed to the loss of a component of his current development if he sought to pursue the course that he was undertaking. Objectively considered, that prospect was a matter that was likely to have weighed upon his conduct of the case.
It was, as I have indicated at [36] of 'Wechsler 2014', a statement made by the Commissioner, without apparent legal foundation. It would have the effect upon a litigant that I have identified. As a consequence, it seemed to me that it did bespeak a denial of a fair hearing by seeking to dissuade a litigant from pursuing a course in the presentation of his case on a basis that lacked any legal foundation.
The third of the claims directed to the denial of procedural fairness, identified in [38]-[39] and [41] of 'Wechsler 2014' arose from the endeavour by Mr Wechsler to amend his application in the form of the compromise that he had propounded. While he was refused leave to amend the application, he was permitted to cross-examine the Council's consultant planner in relation to that compromise. His compromise proposal included the fixing of translucent strips to a glazed lowered balustrade on level 6 so as to impede or filter views into adjoining properties. That was a compromise directed to meet the claim that there was an unreasonable impairment upon the enjoyment of outdoor space on those adjoining properties.
In her judgment at [19] and [27], the Commissioner addressed that aspect of the compromise proposal and rejected it as being appropriate. That, as I have already considered in 'Wechsler 2014', identified a further basis upon which procedural fairness was denied. In effect, the compromise advanced by Mr Wechsler was determined without affording him the opportunity to give evidence in respect of it.
There are numerous further particulars given by Mr Wechsler in support of his claim that procedural fairness was denied. Given my acceptance that the three matters to which I have directed attention make good his ground of appeal, it becomes unnecessary to consider any of the other matters to which Mr Wechsler's submissions direct attention. A number of those are related to the manner in which particular issues arising in the proceedings were determined. It is not appropriate that I should embark upon a consideration of them, lest I be seen to trespass upon matters that may arise when the modification application is determined on its merits.
In summary, those aspects of the hearing before the Commissioner to which I have already directed attention are sufficient individually, and certainly collectively, to sustain the ground of appeal that there has been a denial of procedural fairness in the conduct of the hearing at first instance. As a consequence, the decision of the Commissioner cannot stand.
Mr Wechsler has foreshadowed that he would seek "costs" in the determination of this appeal. He readily accepted that insofar as he has acted for himself, those costs can only include those disbursements that he has incurred in maintaining these proceedings. As I have also indicated, in filing its submitting appearance, the Council did not submit to an order for costs.
In the circumstances the question of costs should be reserved as the Council was not represented when the application for costs was made. It is hoped that by sensible discussion between Mr Wechsler and the Council the question can be resolved without the necessity for the Court to make any further determination or hold any further hearing upon that aspect of the appeal.
For the reasons that I have stated the orders that I make are as follows:
1. Appeal upheld.
2. Set aside the decision of Morris C delivered on 3 July 2013, insofar as that decision refused the modification sought in the proceedings before her.
3. Remit the matter for rehearing and determination by a Commissioner of the Court appointed by the Chief Judge pursuant to s 31(1) of the Land and Environment Court Act 1979 (NSW).
4. Costs of the appeal are reserved.
[3]
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Decision last updated: 11 March 2015