Wiggins v Pittwater Council

Ai v Newcastle City Council (2003) 126 LGERA 194; CASES CITED: Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139; Wiggins v Pittwater Council [2006] NSWLEC 286; Zhang v Canterbury City Council (2001) 51 NSWLR 589

APPLICANT: S N Griffiths (solicitor) SOLICITORS: Pike Pike & Fenwick LEGAL REPRESENTATIVES: RESPONDENT: D T Miller (barrister) SOLICITORS: Mallesons Stephen Jaques

JUDGMENT:

• 9 - IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

JUDGMENT Introduction 1 HIS HONOUR: The applicant, Mr James Joseph Kenneth Wiggins, applied to the respondent council for re-subdivision of two existing allotments into three. The application was recommended for refusal by the council's development unit. The council subsequently invited the applicant to submit amended plans to address the recommended reasons for refusal. The offer was not taken up and the matter proceeded to an appeal in this Court. 2 The appeal was heard by Commissioner Bly who, in an extempore judgment on 11 April 2006, upheld the appeal and granted development consent to the application subject to conditions: Wiggins v Pittwater Council [2006] NSWLEC 286. 3 The council, being dissatisfied with the commissioner's decision, now appeals to the Court against that decision, such appeal being limited to a question of law: s 56A of the Land and Environment Court Act 1979.

4 The subject land comprises at present two allotments known as lots 91 and 93, Powder Works Road, North Narrabeen. Lot 91 has a frontage to Powder Works Road. Lot 93 is a battle-axe or hatchet-shaped allotment which sits behind lot 91 and is accessed by a driveway from Powder Works Road which runs along the northern boundary of lot 91. 5 The development application seeks a subdivision of the two lots into three. This is to be achieved by reducing the size of lot 93 and then creating two lots out of the residue (that is, out of the existing lot 91 and the part of lot 93 excised therefrom), so as to create new lots, 91, 91A and 93. Access to lots 91A and 93 is to be by the existing access to lot 93, which is to be widened from 3 metres to 3.5 metres. It is also proposed to demolish an existing house on that lot to facilitate the wider sections of the driveway; and it is proposed to provide for car parking spaces on lots 91A and 93. No changes are proposed for access to lot 91.

6 The commissioner noted that the only issue which required the determination of the Court was the gradient of the access driveway. As the commissioner noted at par [6]: At the hearing the Court was advised that the only issue of concern to the council involved the access driveway which will, if a house is erected as anticipated on the additional lot be utilised by two dwellings rather than one.

7 Two traffic engineering experts gave evidence, Mr P Brisby for the council and Mr L Marshall for the applicant. Mr Brisby believed that a gradient of 25 per cent was the appropriate maximum gradient. Mr Marshall believed that the proposed maximum gradient of between 31.5 and 31.8 per cent was acceptable. 8 The commissioner noted that Pittwater 21 Development Control Plan ("the DCP") applies. There was an issue between the expert witnesses as to whether cl B6.1 or cl B6.2 of the DCP applies to the proposed development. The commissioner considered this issue in pars [9] and [10] of his decision as follows: [9] Mr Marshall drew the Court's attention to s B6.1 of the DCP, which deals with access driveways for residential development up to two dwellings (single dwelling and dual occupancy). This section specifies that access driveways shall have gradients less than 20% although this can be increased up to 25% for distances up to 25 m, subject to a merit assessment. In essence, the section also provides for variations where council may permit driveway grades up to 25% for a new driveway and up to 33% for existing driveways based on certification by a qualified traffic consultant that access is safe. It was his opinion that the existing driveway with the proposed upgrading will be safe. [10] Conversely it was submitted on behalf of the council that s B6.1 does not apply and instead s B6.2 which applies to access driveways for all development other than two dwellings, this section requires that access driveways should meet Australian Standard 2890.1 and should have maximum grades of 20%. There are no variations indicated for gradient.

9 The council says that the commissioner erred in law by applying the wrong clause of the DCP. It says that the commissioner misconstrued cl B6.2 as being not applicable and thereby failed to take into consideration and apply that clause. The council also says that the commissioner erroneously applied cl B6.1 rather than cl B 6.2. It further submitted that the commissioner thus took into account irrelevant considerations, namely the provisions of cl B6.1 of the DCP, in coming to the decision that he did.

The provisions of the DCP 10 Clause B6.1 of the DCP is relevantly as follows: B6.1 Access Driveways - Residential Development up to 2 dwellings (single dwelling and dual occupancy) … Development to which this control applies · Specified Residential Development Dwelling house (new) Detached dual occupancy Dwelling house (alterations & additions) Multi-unit housing Attached dual occupancy Shop-top housing (residential portion only)

· Unspecified Residential Development Includes all other residential development not individually specified above. · Business Development · Light Industrial Development · Land Subdivision · Other Development Includes development not included in residential development, business development, light industrial development, or land subdivision.

Controls · Access driveways shall have gradients less than 20% and the driveway grade should not change by more than 11% for every 1.4m of driveway increased in grades up to 25% for distances up to 25m may be considered on merit.

Variations … · Council may permit driveway grades up to 25% (for straight sections up to 25m long) for new driveways based on a merit assessment and up to 33% for existing, structurally sound driveways based on certification by a qualified traffic consultant that access is safe. 11 By contrast, cl B6.2 of the DCP is relevantly as follows:

B6.2 Access Driveways - all development other than up to 2 dwellings … Development to which this control applies · Specified Residential Development Dwelling house (new) Detached dual occupancy Dwelling house (alterations & additions) Multi-unit housing Attached dual occupancy Shop-top housing (residential portion only)

· Unspecified Residential Development Includes all other residential development not individually specified above. · Business Development · Light Industrial Development · Land Subdivision · Other Development · Includes development not included in residential development, business development, light industrial development, or land subdivision. Controls ……. · Access driveways within the development site shall have a maximum grade of 1:5. ……

The relevant principles 12 Section 79C of the Environmental Planning and Assessment Act 1979 ('the EP&A Act") sets out the matters which must be taken into account by a consent authority. These considerations include the provisions of any development control plan: sub-s (1)(a)(iii).

13 In Zhang v Canterbury City Council (2001) 51 NSWLR 589 Spigelman CJ (Meagher and Beazley JJA concurring) held (at 602) that the obligation to take into consideration the relevant matters in s 79C made them fundamental elements or focal points in the determination. Hence the DCP had to be considered as a "fundamental element in", or a "focal point of", the decision-making process. 14 The council submits that the appropriate control in the DCP was cl B6.2, that the commissioner in applying cl B6.1 took into account an irrelevant consideration, that cl B6.2 (unlike cl B6.1) did not allow any variation from maximum gradient specified by the clause, that any merit assessment that followed must inevitably have been infected or conditioned by his error, and that misconstruction of a relevant statutory provision is a question of law.

15 The first question is whether it is cl B6.1 or cl B6.2 which is the relevant clause of the DCP applying to the proposed development. 16 It seems that the commissioner was misled by the headings to each clause. The heading to cl B6.1 is "Access Driveways - Residential Development up to 2 dwellings (single dwelling and dual occupancy)". The heading to cl B6.2 is "Access Driveways - all development other than up to two dwellings". The headings to these provisions are not, however, taken to be part of the instrument: s 35(2) of the Interpretation Act 1987. The development to which each control applies is set out in the body of each clause. Clause B6.1 applies to new dwellings and additions, to an attached dual occupancy, and to a detached dual occupancy. It does not apply to land subdivision. Clause B6.2 applies expressly to land subdivision (inter alia). Each clause fixed a different maximum gradient for access driveways and, as noted above, only cl B6.1 allows a variation to the maximum gradient. 17 It follows that by ignoring the heading to each clause and looking at the development expressly listed under each clause, it is cl B6.2 which is the relevant control in the present case. It is that clause which becomes the fundamental element in or the focal point of the decision making process. The commissioner, however, held at par [11] of his decision: In the circumstances I have decided that B6.1 is relevantly applicable and that subject to a merit assessment, a gradient up to 33 % can be acceptable. 18 The obligation to take into consideration the DCP as a fundamental element in or a focal point of the decision-making process includes an obligation to take into consideration the applicable control in the DCP. 19 In failing to take as the basis for his determination the relevant control and by adopting instead as the basis for his determination a different (and more lenient) control the commissioner erred in law. That is, there cannot have been "a proper, genuine or realistic consideration of the provisions of the DCP" if, as here, the commissioner relied upon a different and more lenient control than that which was directly applicable. 20 It might be said that the commissioner made a finding of fact which is not open to review. However, as Glass JA said in Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 156: A finding of fact in the Commission may nevertheless reveal an error of law where it appears that the trial judge has misdirected himself ie has defined otherwise than in accordance with law the question of fact which he has to answer. 21 In the present case the commissioner misdirected himself by defining cl B6.1 as the relevant control and assessing the development against that control rather than the applicable control. 22 Of course, a development control plan is not an environmental planning instrument and the determining authority may depart from its provisions, but only after giving proper, genuine and realistic consideration to its relevant provisions: Zhang at 602 [74]. Then, having done so, the determining authority may decide whether other factors under s 79C of the Environmental Planning and Assessment Act 1979 justify a variation from the standard in the DCP: Ai v Newcastle City Council (2003) 126 LGERA 194 at 210 [62]. But here, the commissioner used as the basis for his consideration the wrong control in the DCP and in doing so he misdirected himself. 23 I thus accept the submission of Mr D T Miller for the council that there cannot have been real consideration of the relevant provision if, as here, the commissioner substituted for the specified provision a different approach founded on the application of an inappropriate and more lenient control. That is, the commissioner substituted for the statutory requirement a different approach. As Spigelman CJ said in Zhang at 602-603 [76], this approach could only be supported if the discretion was entirely at large, that is, that there were no "standards" of any character which the decision maker had to take into account. 24 The misconstruction of a relevant provision will always be an error of law: Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 156-157. The commissioner's holding that cl B6.1 was relevantly applicable clause and not cl B6.2 amounts to an error of law. The appeal must be upheld.

Orders 25 The formal orders of the Court are: (1) The appeal is upheld. (2) The determination of Commissioner Bly is set aside. (3) The proceedings are remitted to the commissioner for re-hearing and determination in accordance with this judgment. (4) The applicant must pay the council's costs of this appeal. I hereby certify that the preceding 25 paragraphs are a true copy of the reasons for judgment herein of the Honourable Mr Justice D H Lloyd.

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