Wollongong City Council v McDonald's Australia Limited [2022] NSWLEC 121 | Case summary | Zoe

NSWNSWLEC

Wollongong City Council v McDonald's Australia Limited

[2022] NSWLEC 121

Land and Environment Court (NSW)|2022-06-09|Before: Moore J

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Source facts

Court

Land and Environment Court (NSW)

Decision date

2022-06-09

Before

Moore J

Source

Original judgment source is linked above.

Judgment (60 paragraphs)

[1]

ngong City Council (Appellant) McDonald's Australia Limited (Respondent) Representation: Counsel: Mr T To, barrister (Applicant) Mr A Galasso SC (Respondent)

[2]

Solicitors: Wollongong City Council (Applicant) Allens (Respondent) File Number(s): 11815 of 2022 Publication restriction: No

[3]

TABLE OF CONTENTS Introduction The Council's appeal The Acting Commissioner's first decision Introduction The Acting Commissioner's proposed potential ameliorative measures The Acting Commissioner's second decision The Acting Commissioner's third decision The expert evidence before the Acting Commissioner The statutory basis for the appeal The appeal pleadings The orders sought by the Council The grounds of appeal Introduction Ground 1 Ground 2 Ground 3 Ground 4 Representation The hearing General legal principles The evidence on appeal The relevant planning controls The Acting Commissioner's decision Definitional differences The structure for addressing Grounds 1 and 2 The written submissions on Grounds 1 and 2 The Council's written submissions on Ground 1 The Council's written submissions on Ground 2 The Company's written submissions on Ground 1 and 2 The Council's written reply submissions on Grounds 1 and 2 The oral submissions on Grounds 1 and 2 Mr To's oral submissions on Grounds 1 and 2 Mr Galasso's oral submissions on Grounds 1 and 2 Mr To's oral reply submissions concerning Grounds 1 and 2 Consideration of, and conclusion on, Ground 1 Consideration of, and conclusion on, Ground 2 Introduction Ground 2.1 Ground 2.2 Introduction The adequacy and utility of the proposed retail tenancies Consideration of, and conclusion on, Ground 2.2 Ground 2.3 Introduction Mr To's oral submissions The oral objector evidence heard by the Acting Commissioner The relevant public submissions The Acting Commissioner's consideration of relevant public submissions Consideration Conclusion on Ground 2 Ground 3 Introduction The Council's written submissions on Ground 3 The Company's written submissions on Ground 3 The Council's written reply submissions on Ground 3 Mr To's oral submissions on Ground 3 Mr Galasso's oral submissions on Ground 3 Mr To's reply submissions on Ground 3 Consideration Introduction Access to and egress from the site The changes to pedestrian access Conclusion on Ground 3 Conclusion Costs Orders

[6]

Introduction

On 20 October 2021, the Acting Commissioner delivered the first of his three written decisions (McDonald's Australia Limited v Wollongong City Council [2021] NSWLEC 1621 - the first decision). The location and details of the site where the development was proposed to be located are set out in [2] of the first decision in the following terms: 2 Within the village [of Wongawilli] and surrounded by open space to the west and north, some residential development to the east and West Dapto Road to its south is a large vacant block of land of some 8,752 sqm being lots 336 (lot 336) and 337 (lot 337) in Deposited Plan 1241313 known as 1 and 9 Raven Street, Wongawilli (site).
At [3], the Acting Commissioner set out the details of the development initially proposed by the Company. This proposed development was for: • A food and drink premises (McDonald's) with a drive‑through facility operating 5am to midnight 7 days a week; • A centre-based child care facility with outdoor play area and capacity for 100 children; • 4 commercial/retail premises with trading hours 7am - 10pm seven days; • Construction of 2 ingress/egress driveways, one of each on West Dapto Road and Raven Street; • 83 car parking spaces including 3 disabled spaces; • Business identification signage including 2 pylon signs; • Communal plaza adjacent to the commercial/retail premises and a smaller communal area on the western boundary of the site; • Landscaping and other minor site works; and • Subdivision of the existing 2 lots into 3 lots.
The Acting Commissioner indicated in this decision that the proposed childcare centre would not warrant approval.
The Acting Commissioner's first decision is one of 326 paragraphs (60 printed pages). In order to understand and consider the three grounds of appeal remaining pressed by the Council, it will be necessary to quote extensively from this decision.
In addition, to understand the matters raised by the Council in Ground 3, it will also be necessary to quote from the Acting Commissioner's second decision, a decision in which he addresses the changes made by the Company to its proposed development. These changes were responsive to the Acting Commissioner's findings in his first decision, and included responses to several specific matters advanced by the Acting Commissioner in [297] of his first decision (set out below) flagging possible responses to some of the matters which he had raised.

[7]

The Acting Commissioner's proposed potential ameliorative measures

At [297] of the Acting Commissioner's first decision, he set out four measures which he proposed might be considered for adoption and, if adopted, would, in his view, potentially resolve a number of concerns he had with respect to the proposed design of the McDonald's restaurant and the four retail tenancies proposed to be located along the eastern boundary of the site. The relevant paragraph from the Acting Commissioner's decision was in the following terms: 297 There are some simple steps which could be taken to render pedestrian movement acceptable: (1) There should be a raised walkway across the driveway from the newly created access point from the riparian zone at the southern end. This enables first, safer access from West Dapto Road in that only one road/driveway crossing is required. Second, anyone parking along the western boundary can utilise the western footpath within the site then link to that crossing rather than walk across the car park. (2) There should be removeable bollards at the entrance to the delivery bay and a marked crossing from the east-west spine to the plaza as expanded, so that access is defined, clear and safe. There is then a direct link between the riparian zone and both of the communal areas. (3) There should be a raised walkway between the north east corner of McDonald's and the plaza. This not only enables safe and clear access between McDonald's and the plaza, some of the patrons in the central component of the car park will find it safe and more convenient to access McDonald's through the plaza if that is their destination. (4) The additional access point from the riparian zone enables a simpler access to McDonald's and to the retail/commercial space and the plaza. For the pedestrian or cyclist coming from the south the access will be simple and direct without having to access the curtilage of McDonald's if that is not their destination. It also operates as an encouragement to access the other facilities available at the neighbourhood centre.
Changes responsive to the first and third of the four proposals advanced by the Acting Commissioner as warranting consideration form part of the complaint made by the Council in Ground 3 in these appeal proceedings. To enable an understanding of the submissions advanced by the Council on this point, it is first appropriate to reproduce an element of the site plan which was the subject of the application to the Council and, subsequently, of the Acting Commissioner's observations in his first decision:
I next reproduce a subsequent revision plan (but marked up by me), being the one that was, relevantly, incorporated in the plans to which the Acting Commissioner granted development consent.
On this second plan, it can be seen that, relevantly, changes were made by the incorporation of raised pedestrian crossings in response to the Acting Commissioner's comments at [297(1)] and [297(3)]. These are marked by me in green. In addition, I have marked, in red, the additional access on the western boundary of the site, which has been incorporated to provide access from the riparian zone to the new raised pedestrian crossing responsive to [297(1)] of the Acting Commissioner's first decision.
The change made as proposed by the Acting Commissioner, in [297(2)], is also marked in brown.
Both the above images have been extracted from the Council's opening written submissions for this appeal.

[21]

General legal principles

During the course of his submissions on behalf of the Company, Mr Galasso took me to the judgment of Bell P (as the Chief Justice then was) in New South Wales Land and Housing Corporation v Orr (2019) 100 NSWLR 578; [2019] NSWCA 231 (Orr), at [70] to [77], where his Honour set out principles concerning how decisions by tribunals were to be considered when being reviewed on appeal as to whether errors of law were disclosed in the reasoning process of the primary decision‑maker. The (then) President said: 70 As to the latter parameter identified by Basten JA in Resource Pacific, namely the quality of reasons, it is generally accepted that the sheer volume of work undertaken by tribunals is such that a perhaps more relaxed standard of review of reasons with corresponding compensation for linguistic infelicities is appropriate than may be the case when an appellate court is hearing an appeal from another court. 71 That having been said, even in the less formal setting of a tribunal which has significant powers the exercise of which is capable of affecting the lives of citizens in profound ways, there are certain minimum characteristics that a Tribunal's reasons must possess. These are really supplied, in relation to the Tribunal, by s 62(3) of the CAT Act which, as noted at [52] above, requires there to be set out in reasons (when requested by a party): (a) the findings on material questions of fact, referring to the evidence or other material on which those findings were based, (b) the Tribunal's understanding of the applicable law, and (c) the reasoning processes that lead the Tribunal to the conclusions it made. 72 Whilst s 62(3) provides a useful starting point, it still leaves for consideration the question as to the quality and detail of the reasoning process that must be exposed. 73 In this context, in Cypressvale Pty Ltd v Retail Shop Leases Tribunal [1996] 2 Qd R 462 at 477; [1995] QCA 187, Fitzgerald P said of the Queensland Retail Shop Leases Tribunal, adapting the language of Samuels JA in the unreported decision of this Court in Strbak vb Newton (Court of Appeal (NSW), Samuels JA, 18 July 1989, unrep) (Strbak), cited in Xuereb v Viola (1988) 18 NSWLR 453 at 469, that, while such a tribunal: "might not be required to 'submit the material before [it] to the most meticulous analysis and carry into [the reasons for its decisions] a detailed exposition of every aspect of the evidence and the arguments ...' or '... incorporate an extended intellectual dissertation upon the chain of reasoning ...', at least 'a basic explanation of the fundamental reasons which led the [Tribunal] to [its] conclusion ...' is necessary". It should be noted that Samuels JA in Strbak had been describing the duty of a District Court judge to give reasons as opposed to that of a tribunal member. 74 In Tatmar at 386, Mahoney JA (as he then was) observed in the context of the obligation to give reasons for a discretionary judgment that it was not necessary for a judge: "who is exercising a discretionary judgment to detail each factor which he has found to be relevant or irrelevant, or to itemi[s]e, for example, in the assessment of damages for tort, each of the factual matters to which he has had regard: see O'Hara v Evans (Court of Appeal, 23rd September, 1976, unreported; Colacicco v Colacicco (Court of Appeal, 15th March, 1977, unreported). ... Nor is a judge required to make an explicit finding on each disputed piece of evidence. It will be sufficient, if the inference as to what is found is appropriately clear: see Selvanayagam v University of the West Indies [1983] 1 WLR 585, at 587, 588; [1983] 1 All ER 824 at 826. But, subject to matters such as these, the basis of the decision of a trial judge or of an intermediate court of appeal should be made apparent. This does not mean that the reasons given need to elaborate: an elaborate argument may not require an elaborate answer. Reasons need be given only so far as is necessary to indicate to the parties why the decision was made and to allow them to exercise such rights as may be available to them in respect of it." 75 To like effect, in Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Secretary of the Treasury [2014] NSWCA 112 at [46], Basten JA said: "Generally, the concept of 'reasons' requires an explanation connecting any findings of fact with the ultimate decision. Where the legal test to be applied involves an evaluative judgment, it may well not be practicable to provide a detailed articulation as to how specified (and conflicting) factors have been weighed in the balance; the scope of the obligation must recognise that constraint. (A different question arises if mandatory considerations have not been identified.)" (emphasis added) 76 What constitutes adequate reasoning on the part of a tribunal is also informed, in my opinion, by statements from well-known administrative law decisions relating to the limits of judicial review and the need for practical as well as principled restraint in that context: Pozzolanic at 287. 77 These principles include the following: (i) "Decision-makers commonly express their reasons sequentially; but that does not mean that they decide each factual issue in isolation from the others. Ordinarily they review the whole of the evidence, and consider all issues of fact, before they write anything. Expression of conclusions in a certain sequence does not indicate a failure to consider the evidence as a whole": Re Minister for Immigration and Multicultural Affairs, Re; Ex parte Applicant S20/2002; Appellant S106/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 30; 77 ALJR 1165 per Gleeson CJ at [14] (Ex parte Applicant); (ii) the court should not read passages from the reasons for decision in isolation from others to which they may be related: Re Maria Politis v Commissioner of Taxation [1988] FCA 739 at [14]; 20 ATR 108 at 111; (iii) the reasons must be read fairly and as a whole: Ex parte Applicant at [147] per Kirby J; Wu Shan Liang at 291; Bisley at 251; (iv) the reasons recorded ought not to be inspected with a fine tooth-comb attuned to identifying error: Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287; [1993] FCA 456 (Pozzolanic) at 287; Wu Shan Liang at 272, 291; (v) there should be a degree of tolerance for looseness in the language of the tribunal, unhappy phrasing of the tribunal's thoughts or verbal slips: Pozzolanic at 287, Wu Shu Liang at 272 and 291.
Mr Galasso also took me to the judgment of Pepper J in Tanious v Georges River Council [2016] NSWLEC 142 (Tanious), where her Honour set out, at [10], the following propositions concerning s 56A appeals (citations omitted): 10 Prior to examining the Commissioner's decision, it is worth recalling the principles according to which this appeal falls to be determined: first, the appeal is only concerned with errors or questions of law and not questions of fact; second, an overly critical examination of the Commissioner's decision for relevant error should not be employed. The Commissioner's reasons for the decision must therefore be read as a whole and considered reasonably. A "verbal slip or infelicity of expression does not necessarily warrant drawing and inference of an error of law"; third, the Commissioner must give adequate reasons for her decision. This means that she must refer to evidence that is important or critical to the determination of the principal or central issues in the case. This does not mean, however, that every argument advanced by a party in support of these issues must be considered by the Commissioner or reasons given for accepting or rejecting it; fourth, and as corollary to the principle above, if the decision of the Commissioner reveals an error on a question of law, the decision is only vitiated if the error is material to the decision made (; and fifth, an error will not be material to the decision if the matter complained of on appeal was a matter that was not the subject of submissions made to the Commissioner below in a way that called for a reasoned consideration of that matter. A party is bound by the way it conducted its case at the hearing.
I also set out below three other relevant legal principles concerning appeals made pursuant to s 56A of the Court Act against decisions of commissioners. These are: 1. A commissioner's reasons for decision must not be read with a "fine tooth comb" - Brimbella Pty Ltd v Mosman Municipal Council (1985) 79 LGERA 367 at 368; 2. Any error of law asserted (and established) will not have the effect of reversing the decision of a commissioner unless the error of law had a material effect on the decision. The error must be one upon which the decision depends - that is, any error must be one which is both material and vitiates the decision - Cacalot Pty Ltd v Sydney City Council (1996) 90 LGRA 424 at 430); 3. A perverse or unreasonable finding of fact will not constitute an error of law - Randwick City Council v Manousaki (1988) 66 LGRA 330 at 333).
It is also appropriate to note that, whilst the Acting Commissioner did not expressly reference Zhang v Canterbury City Council (2001) 115 LGERA 373; [2001] NSWCA 167 (Zhang) as a basis for the approach he should take to the development control plan (Wollongong Development Control Plan 2009 - the DCP), the Acting Commissioner said, at [243] and [244]: 243 WDCP 2009 is a focal point of the assessment of the DA. Its role is to serve WLEP 2009 and not to derogate from it. 244 The task is to identify what are the relevant controls and objectives of WDCP 2009 and determine whether the proposal meets them, or if not whether the departure is such that consent should be refused.
In shorthand terms, these paragraphs encapsulated the broad role of a development control plan as described in Zhang, at [75], and the obligations of a decision‑maker (here the Acting Commissioner) consistent with that role. Indeed, in the course of his oral submissions, Mr To acknowledged that the Acting Commissioner had correctly identified the role of the DCP and how he was to consider it in his decision‑making process (Transcript 30 May 2022, lines 19 to 24).

[22]

The evidence on appeal

The evidence for the appeal was entirely documentary, comprising three lever‑arch files of material (totalling 1828 folios), together with a chronology. The three folders of documents became Exhibits A, B and C, with the chronology becoming Exhibit D.
Amongst this material, it is to be noted, were relevant plans. The first was a set of plans, in Exhibit B at folios 623 to 679. These were the plans which had provided the foundation for the development application which had been lodged with the Council.
Exhibit C, at folio 1826, was the amended site plan (180109 SK01 Rev D) to which the Acting Commissioner gave development consent as the outcome of his third decision. This is the plan earlier reproduced at [12]. This plan had been amended in a fashion responsive to the matters raised by the Acting Commissioner in [297] of his decision. This paragraph of the Acting Commissioner's decision, and the plan amendments proposed by the Company as being responsive to the matters suggested by the Acting Commissioner, has been earlier set out.
In addition to the plans noted above, it is also appropriate to note that the documentary evidence included:

the three decisions given by the Acting Commissioner in these proceedings (part of Exhibit A);
the complete transcript of the hearing before the Acting Commissioner (contained in Exhibit A);
the Wollongong Local Environmental Plan 2009 (the LEP) (contained in Exhibit B); and
Relevant elements of the DCP (contained in Exhibit B).

It is to be noted that the amended site plan referred to above at [35] not only contained amendments responsive to the matters proposed by the Acting Commissioner, in [297] of his first merit decision, but also deleted the entirety of the preschool centre element advanced by the Company in its original development application. The originally proposed development was to take place across both the B1‑ and R2‑zoned elements of the site.
However, the removal of the childcare centre (proposed to be located on the northern portion of the site and straddling the two different zones - it being permissible in each of those zones with development consent) meant that the McDonald's restaurant and associated parking and drive‑through service facilities, together with the four proposed 150‑square‑metre retail tenancies in the elbow of the West Dapto Road and Raven Street intersection, were to be located entirely within the B1 zone. It is to be noted that the consequence of this meant that, for these appeal proceedings, only the zone objectives of the B1 zone are potentially engaged.

[24]

Definitional differences

A matter which will later require consideration, in the context of submissions advanced on behalf of the Company, is the difference between relevant definitions of the same term contained in the Dictionary to the LEP and in Appendix 4 - Definitions of the DCP.
Although the definitions of these terms differed between the LEP and DCP, it was the Council's position that there was no inconsistency between them and that the differences played no relevant role in these proceedings.
The first of these pairings of definitions is that of "retail premises". The LEP definition of this term is: retail premises means a building or place used for the purpose of selling items by retail, or hiring or displaying items for the purpose of selling them or hiring them out, whether the items are goods or materials (or whether also sold by wholesale), and includes any of the following; (a) (Repealed) (b) cellar door premises, (c) food and drink premises, (d) garden centres, (e) hardware and building supplies, (f) kiosks, (g) landscaping material supplies, (h) markets, (i) plant nurseries, (j) roadside stalls, (k) rural supplies, (l) shops, (la) specialised retail premises, (m) timber yards, (n) vehicle sales or hire premises, but does not include highway service centres, service stations, industrial retail outlets or restricted premises.
The DCP definition of this term is: Retail Premises: Means a building or place used for the purpose of selling items by retail, or for hiring or displaying items for the purpose of selling them by retail or hiring them out, whether the items are goods or materials (or whether also sold by wholesale).
As can be seen, the two definitions are not in identical terms.
The next pairing of definitions is those of "food and drink premises". The definition in the LEP is in the following terms: food and drink premises means premises that are used for the preparation and retail sale of food or drink (or both) for immediate consumption on or off the premises, and includes any of the following - (a) a restaurant or cafe, (b) take away food and drink premises, (c) a pub, (d) a small bar.
The definition in the DCP is in the following terms: Food and Drink Premises: Means retail premises used for the preparation and retail sale of food or drink for immediate consumption on or off the premises, and includes restaurants, cafes, take away food and drink premises, milk bars and pubs.
As can also be seen, these two definitions are also not in identical terms.

[26]

The Council's written submissions on Ground 1

The Council's submissions on Ground 1 were (footnotes omitted): 17. Chapter B4 of the WDCP relates to Development in Business Zones. 18. Clause 3.7.4 in Chapter B4 of the WDCP states: Any new retail development within any of the village centre shall be limited to retailing activities and services which provide for the daily convenience needs of the surrounding residential community, especially healthy food and grocery retailing. This may include small supermarkets / retail grocery stores, butcher shops, fruit and vegetable retailers, bakeries, newsagents, hairdressing salons, dry cleaning shops etc. 19. An issue in the proceeding was whether the proposed development in the village centre would comply with clause 3.7.4 in that it would not be limited to activities and services providing for the 'daily convenience needs of the surrounding residential community, especially healthy food and grocery retailing'. This was particularly because of a dominance of the McDonald's component of the proposed development, against the unspecified but limited (in floor area, number and thus variety) space available for other retailing. That the food offering by McDonald's was not healthy food retailing and does not meet the needs of the surrounding residential community was a substantial point made through objector submissions - including those made by the NSW Department of Health and a number of local medical practitioners. 20. Acting Commissioner Clay disposed of this argument by finding that "[t]he food and drink premises (McDonald's) is not a new retail development…" and therefore concluded that clause 3.7.4 did not apply to the McDonald's food and drink premises which he considered to be "other than retail development". This was a clear error in the construction of the class term, 'retail development', for the reasons stated below. The Acting Commissioner repeated the error that a food and drink premises is not retail stating "There is no question that a proponent can seek a non-retail use such as food and drink premises… and also provide other uses to meet the needs of the local living and working population…" (underlining added). 21. The finding that the proposed McDonald's is not 'retail' is plainly contrary to defined terms in the Dictionary of the WLEP and in the Definitions of the WDCP. 22. In the Dictionary to the WLEP: (a) 'retail premises' includes a 'food and drink premises'; and (b) 'food and drink premises' includes a 'take away food and drink premises'.3 23. In Appendix 4: Definitions to the WDCP: (a) "Retail Premises: Means a building or place used for the purpose of selling items by retail, or for hiring or displaying items for the purpose of selling them by retail or hiring them out, whether the items are goods or materials (or whether also sold by wholesale)." (b) "Food and Drink Premises: Means retail premises used for the preparation and retail sale of food or drink for immediate consumption on or off the premises, and includes restaurants, cafes, take away food and drink premises, milk bars and pubs." 24. It is clear that the proposed McDonald's is a 'food and drink premises' and therefore, under the terms of the WLEP and the WDCP, is a 'retail premises'. As a 'retail premises', the proposed McDonald's food and drink premises is clearly a 'retail development'. The proposed McDonald's food and drink premises is also self-evidently 'new', not having yet been constructed. 25. While it is clear, from the matters set out in paragraph 20 above, that the Acting Commissioner concluded that clause 3.7.4 did not apply to the proposed McDonald's food and drink premises because it was not 'retail', there might be a suggestion by McDonald's that the Acting Commissioner also considered that clause 3.7.4 applies only to existing villages and not to Wongawilli Village as a planned village. 26. The Acting Commissioner explored this proposition during the hearing and it was a proposition that, though not initially advanced by McDonald's, was embraced by McDonald's.3 In the judgment on 20 October 2021, the Acting Commissioner states that clause 3.7.4: on its face deals with the existing Village Centres, including how further development within a centre should be carried out in the future. The Council says that this clause is an important indicator of how development of the Wongawilli Village Centre should be carried out, albeit there is no existing village centre." 27. More than this, Council submitted that clause 3.7.4 is a prescriptive control that applies to the Wongawilli Village and must be complied with. 28. Council's submission, that clause 3.7.4 is a prescriptive control that applies to both existing and proposed villages takes a purposive approach to construction of the WDCP as an environmental planning instrument. As stated by McColl JA in Cranbrook School v Woollahra Council (2006) 66 NSWLR 379 at [36]: Environmental planning instruments are a species of delegated legislation, a statutory instrument… and should be interpreted in accordance with the general principles of statutory interpretation… A construction should be preferred that is consistent with the language and purpose of all the provisions of such instruments… 29. Council's proposed construction of clause 3.7 (as applying to both existing and new villages) takes account of the 'mischief' that the WDCP seeks to address in ensuring appropriate planning for village centres. It would be a nonsense to seek to construe clause 3.7 narrowly so as to apply only to existing villages, and not to apply those same controls to land clearly identified in land use planning instruments and guidelines as being for the purpose of creating a village. It would have the effect of fixing the application of Chapter B4 to a point in time, to apply only to existing but not future village development. Such an interpretation would lead to absurdity. This would undermine the policy intent of the WDCP which includes, as stated in paragraph 3.2.6 of Chapter B4 of the WDCP, "Small Villages (Local Convenience Centres)" that "Primarily provide for the daily convenience needs of the surrounding residential population for each suburb". 30. Acting Commissioner Clay erred in finding that clause 3.7.4 of the WDCP does not apply to the proposed McDonald's food and drink premises. The ground should be upheld. This error led to the error in round 2, next set out below.

[27]

The Council's written submissions on Ground 2

The written submissions for the Council on Ground 2 were (footnotes omitted): Ground 2 - failure to make WDCP a focal point of consideration 31. In determining the development application, the Acting Commissioner was required, under section 4.15(1)(a)(iii) of the EPA Act, to take into consideration the provisions of the WDCP, including clause 3.7.4 of Chapter B4 of the WDCP. 32. Further, in accordance with the principles enunciated by the Court of Appeal in Zhang v Canterbury City Council [2001] NSWCA 167, the Acting Commissioner was required to treat the WDCP as a "fundamental element in, or a focal point of, the decision making process". The Acting Commissioner notes the "WDCP is a focal point of the assessment of the DA". 33. As a consequence of the misconstruction of clause 3.7.4 of Chapter B4 of the WDCP, the Acting Commissioner did not consider at all whether the proposed McDonald's food and drink premises, as new retail, satisfied the requirements of clause 3.7.4. The operation of clause 3.7.4 with respect to the proposed McDonald's food and drink premises was not the subject of any consideration, and was not a 'fundamental element' or 'focal point' of the Acting Commissioner's decision making process. 34. The Acting Commissioner found that "proper consideration of WDCP 2009 is to give greater weight to the site specific and locality controls or objectives". Such a statement is unexceptional. However, the Acting Commissioner gave no consideration to clause 3.7.4, properly construed, for the reasons set out earlier. Instead, in substance the Acting Commissioner applied a test other than as set out in clause 3.7.4 in considering the McDonald's food and drink premises. In this way, the Acting Commissioner failed to make clause 3.7.4, properly construed, a focal point for consideration. 35. In finding (erroneously) that the proposed McDonald's food and drink premises was not a new retail development, the Acting Commissioner's reasoning wrongly separated the consideration of satisfaction of the daily convenience needs by excluding the proposed McDonald's from that question, and did not consider whether the McDonald's food and drink premises would in fact meet the daily convenience needs of the surrounding residential community as required under clause 3.7.4. Rather, the Acting Commissioner considered that satisfying daily convenience needs, as required under clause 3.7.4, was a matter for only the other parts of the proposed development: The food and drink premises (McDonald's) is not a new retail development, rather the retail/commercial space is intended to fulfill that role of providing convenience needs.47 36. As set out in paragraph 2.3 of the Summons, as a consequence of the misconstruction of clause 3.7.4 of Chapter B4 of the WDCP, the Acting Commissioner failed to consider, in the context of clause 3.7.4, the evidence from objectors that the McDonald's food and drink premises did not meet the needs of the surrounding residential community and did not represent healthy food retailing. This is despite the Acting Commissioner accepting the evidence of concerns by objectors that the proposed McDonald's food and drink premises did not meet the need of surrounding residents and did not represent healthy food retailing, noting that this evidence did not represent expert evidence. There was no contrary evidence. 37. The Acting Commissioner did not make any finding that this evidence was to be accorded no weight, (and, it is contended, it would not have been open to him to do so, given the absence of any expressed reasoning to such a conclusion, or contrary evidence). The only relevant evidence was the objectors' evidence that the development did not offer "healthy food… retailing" and that it did not meet the community's "daily convenience needs." Thus, on the proper construction and application of clause 3.7.4 of the WDCP, it was likely that a finding on the evidence would have been made that the proposed development was inconsistent with the clause. It cannot be said that such a finding could not have been material to the outcome of the merit appeal, potentially resulting in a refusal of the appeal as tentatively indicated in Judgment No 1, rather than the course taken in exploring excision of and changes to components using powers under s4.16(4) and 4.17(1)(g) of the EPA Act. 38. The Court should conclude Ground 2 is made out.

[28]

The Company's written submissions on Ground 1 and 2

The Company's written submissions on Ground 1 and 2 were in the following terms: Grounds 1 and 2 3.1 In Grounds 1 and 2 of the Summons, Council asserts that the Acting Commissioner erred by misconstruing and/or misapplying clause 3.7.4 of Chapter B4 of Wollongong Development Control Plan 2009 (WDCP) and that as a consequence the Acting Commissioner failed to make the WDCP a focal point of consideration. 3.2 Clause 3.7.4 in Chapter B4 of the WDCP is in the following terms: 3.7 Village Centres … 4. Any new retail development within any of the village centre [sic] shall be limited to retailing activities and services which provide for the daily convenience needs of the surrounding residential community, especially healthy food and grocery retailing. This may include small supermarkets / retail grocery stores, butcher shops, fruit and vegetable retailers, bakeries, newsagents, hairdressing salons, dry cleaning shops etc. (emphasis added). 3.3 McDonald's disputes this ground of appeal and says that no error of law is demonstrated. Rather, the Council's position goes to the way in which the Acting Commissioner engaged with a single provision of the WDCP which is not a vitiating error of law and therefore beyond the jurisdiction of the Court in these appeal proceedings. 3.4 There is no statutory requirement that provisions of a development control plan must be strictly complied with, nor that a Commissioner of the Court is bound to follow those provisions. They are not mandatory requirements and instead are to be applied flexibly and allow reasonable alternative solutions that achieve the objects of the standards. 3.5 The Council's assertion at [28] of its written submissions that the WDCP is an environmental planning instrument is incorrect. The Environmental Planning and Assessment Act 1979 (NSW) (EP&A Act) contains the following definition of 'environmental planning instrument': Environmental planning instrument means an environmental planning instrument (including a SEPP or LEP but not including a DCP) made, or taken to have been made, under Part 3 and in force. (emphasis added). 3.6 It was accepted between the parties during the hearing before the Acting Commissioner that relevant provisions of a development control plan are required to be taken into consideration in determining a development application and are to be a focal point in the assessment of a development application. 3.7 Indeed, it is abundantly clear from the transcript of the hearing that the provisions of Chapters B4 and D16 of the DCP were a focal point in the proceedings with the vast majority of opening and closing submissions of both parties directed towards the relevant provisions of the WDCP. The expert evidence also engaged with the relevant provisions of the WDCP, including in the Traffic Joint Report and the Town Planning Joint Report. 3.8 Specific consideration was given to clause 3.7.4 of Chapter B4 of the WDCP in the parties' submissions at hearing. 3.9 What is plain from the submissions made on behalf of McDonald's during the hearing is that: (a) the relevant provisions of the WDCP are non-prescriptive; (b) clause 3.7.4 of Chapter B4 of the WDCP is to be considered with regard to the following factors: (i) the specific provisions relevant to the West Dapto Urban Release Area, including provisions specific to the subject site, are contained in Chapter D16 of the WDCP which 'override any controls contained in [Chapter B4] of the DCP, in the event of any inconsistency'; (ii) that clause 3.7 of Chapter B4 of the WDCP does not refer to 'Wongawilli' as one of the 'Village Centres' to which the clause applies (with provisions specific to Wongawilli and the subject site contained in Chapter D16 of the WDCP which was inserted into the WDCP subsequent to Chapter B4); and (iii) the expert evidence of the Council's urban economic expert in which it was apparent that Figure 21 of the WDCP (being specific to the subject site) emanates from a point in time and a body of assessment that effectively disconnected between his recommendation for larger villages and the controls for smaller villages that are in the suite of controls; and (c) to the extent that clause 3.7.4 of WDCP did apply to the proposed development, the terms of clause 3.7.4 were inconsistent with: (i) the applicable permissible uses and zone objectives under the Wollongong Local Environmental Plan 2009 (WLEP); and (ii) the site specific provisions within Chapter D16 of the WDCP; and should properly be read down on that basis. 3.10 These matters were summarised in the closing submissions on behalf of McDonald's as follows: …this was the reference to ch B4 and ch B6 of the DCP. Can we note - the first submission is ch B4 comprises the broad components of controls within the development control plan. We would submit that the proposal is not inconsistent with those controls. In fact, I took you to s 3.7 in terms of the use of the word "daily", which, on our submission, doesn't change or add anything of substance and, secondly, that ch D16, on any view of it, is the more specific control, so you've got a hierarchy, as it were, of the specific controls, particularly for Wongawilli versus the overall controls. Except this, though, that the council attempted to submit that in the B4 chapter, para 3.7, in particular, subpara (4) was prescriptive by the use of the phrase "shall be limited". A number of things to note about that. First of all, on a proper reading of the whole DCP, it doesn't operate that way. Secondly, but most importantly, if it is prescriptive, it's prescriptive in a limiting sense and that is, in fact, at odds with the objectives of the zone in the LEP and you would, therefore, read back those provisions of the DCP. Next, we satisfy the limitation in 3.7(4) in any case and, next, to note that it doesn't say that, notwithstanding the prescription, if it be prescription - we don't accept that it is - it doesn't say that it cannot also be providing services or goods for other than the surrounding residential community, that is, it may say so, that is, you have got to achieve it, but it doesn't say you can't achieve anything more. In any case, we can observe that Wongawilli is not one of - and we would respectively [sic] embrace the Court's observation that it is, that is, those five or so paragraphs, are, in fact, talking about the pre-existing centres. You get that from the fact that Wongawilli is not referenced in subpara (2), but Horsely is and you observe that Horsely was part of a more historic residential development area and the reason why Wongawilli is not in subpara (2) is because ch D16 relates to a release area, that is, in reality, the DCP took a snapshot of what existed at the time of the preparation of the DCP and what has come out is or are a series of controls for release areas, that is, the whole of ch D16 is about historically rural lands that have been allowed to be rezoned to residential and business centres and none of the D16 centres are, in fact, in ch B4. So, when you look at Darkes Road, Wongawilli and the other release area centres in D16, they are, in fact, not specifically picked up in B4 and that's why you won't get the same visitation in terms of the centres in D16 as B4. 3.11 The above matters were considered in detail by the Acting Commissioner. McDonald's therefore disputes the Council's assertion at [33] of its written submissions that clause 3.7.4 of the WDCP was not a focal point in the Acting Commissioner's consideration. 3.12 McDonald's submits that it was therefore open on the facts for the Acting Commissioner to find that: (a) clause 3.7 of the WDCP on its face deals with the existing Village Centres rather than proposed future centres in urban release areas; (b) Chapter D16 of the WDCP is a comprehensive plan for the West Dapto Release Area (including the subject site) which in some respects is inconsistent with the lower-order provisions in Chapter B4 of the WDCP; and (c) greater weight is to be given to the site specific and locality controls or objectives, which are intended to facilitate the achievement of, or at least be consistent with, the earlier more general controls, objectives and principles in the chapter dealing with the West Dapto Release Area. 3.13 Whilst Council in its written submissions asserts at [29] that "it would be a nonsense to seek to construe clause 3.7 narrowly so as to apply only to existing villages", the fact is that Chapter B4 of the WDCP predated the commencement of Chapter D16 which relates specifically to the West Dapto Urban Release Area and the subject site. Accordingly, McDonald's submits that it is entirely logical for those provisions to have been drafted with respect to the villages that existed at that time whilst strategic studies were being undertaken to inform separate chapters of the WDCP in relation to the various urban release areas. 3.14 Further, to the extent that the Council asserts at [35] of its written submissions that the Acting Commissioner "wrongly separated the consideration of satisfaction of the daily convenience needs…", this is disputed by McDonald's on the basis that the Acting Commissioner correctly approached this question by reference to the higher order zone objectives within the WLEP and site specific provisions within Chapter D16 of the WDCP. 3.15 Th relevant objectives of the B1-Neighbourhood Centre zone in the WLEP are: Objectives of zone • To provide a range of small-scale retail, business and community uses that serve the needs of people who live or work in the surrounding neighbourhood. • To allow for residential accommodation and other uses while maintaining active retail, business or other non-residential uses at the street level. 3.16 The first objective relevantly refers to retail uses that 'serve the needs of people who live or work in the surrounding neighbourhood'. There is no mention of providing 'daily convenience needs' as that phrase is used in clause 3.7.4 of Chapter B4 of the WDCP. 3.17 Indeed, permissible with consent in the B1 zone are 'commercial premises' which relevantly includes 'shops'. Although it was open to the Council to limit the types of retail premises within the B1 zone to only 'neighbourhood shops' and 'neighbourhood supermarkets' (both of which being specifically defined terms) it did not do so. 3.18 Separately, Chapter D1 and D16 of the WDCP contain provisions specifically relevant to the subject site and do not refer to any need to provide 'daily convenience needs'. Relevantly: (a) Chapter D1, clause 3.50 describes the desired future character of a future village at Wongawilli to include 'a small local convenience centre on West Dapto Road which will provide for the convenience needs of the surrounding population'; and (b) Chapter D16, clauses 14.3.3 contains provisions relevant to the subject site, namely that 'Wongawilli Village centre will provide a small convenience centre with a small grocer and some mixed retail shops…'. 3.19 As observed by McClellan CJ in LEC in BGP Properties v Lake Macquarie City Council, in the ordinary course, where by its zoning land has been identified as generally suitable for a particular purpose, weight must be given to that zoning in the resolution of a dispute as to the appropriate development of any site. Planning decisions must generally reflect an assumption that, in some form, development which is consistent with the zoning will be permitted. 3.20 McDonald's submits that no error of law is demonstrated in the approach taken by the Acting Commissioner, which was relevantly summarised in the judgment as follows: [260] I begin this analysis on the basis that the McDonald's food and drink premises (including the drive through) is a permissible use and that it is not inconsistent with the objectives of the B1 zone. Inherent in that proposition is that the provisions of the WDCP 2009 cannot be read to prohibit uses which are permissible with consent. WDCP 2009 of course assists in determining whether the form of the whole of the development is acceptable. 3.21 Accordingly, Grounds 1 and 2 of the Appellant's Summons have not been made out and should be dismissed.

[29]

The Council's written reply submissions on Grounds 1 and 2

As the Company had addressed Grounds 1 and 2 in a combined fashion in its written submissions, the Council's written reply submissions responded in a combined fashion. The Council's reply submissions on these two grounds were (paragraph numbering as in original): Grounds 1 and 2 3. Notably, the Respondent does not suggest the Acting Commissioner was correct in his construction and application of clause 3.7.4 to the proposed McDonald's food and drink premises. It clearly was not. 4. At paragraph 3.12 of the ROS, the Respondent asserts that clause 3.7.4 was a focal point in the Acting Commissioner's consideration. This elides the point that if clause 3.7.4 was misconstrued, the Acting Commissioner failed to consider clause 3.7.4, properly construed. 5. This is the error of law. 6. At paragraph 244 of the Judgment, the Acting Commissioner correctly identified the task for the Court with respect to the WDCP. 7. At paragraph 260 of the Judgment, the Acting Commissioner observed the proposed McDonald's food and drink premises was a permissible land use, and that the WDCP would assist in determining whether the proposed development was acceptable. This is uncontroversial. 8. The second observation in paragraph 260 was an observation in the abstract - there was no suggestion by Council (as respondent to the Class 1 proceedings) that the WDCP (and specifically clause 3.7.4) did, or could, prohibit a permitted land use. 9. Nor was there any finding by the Acting Commissioner that clause 3.7.4 had any such effect. The appeal was simply not determined this way. 10. In respect of these grounds, the ROS seeks to describe various submissions the Respondent put to the Acting Commissioner. None of them bear directly on the error of law in the misconstruction of clause 3.7.4. 11. At paragraph 3.12 of the ROS the Respondent submits it was open to the Acting Commissioner to make certain findings. Leaving aside the issue that not all of the findings as set out at paragraph 3.12 were in fact made, the submission does not address the error of law in the misconstruction of clause 3.7.4. 12. The ROS appears to suggest the appeal was decided in accordance with what the Respondent submitted, viz: (a) clause 3.7.4 of Chapter B4 of the WDCP is inconsistent with the applicable permissible uses, and zone objectives, and the site specific provisions in Chapter D16 of the WDCP; (b) the Acting Commissioner considered that inconsistency; and (c) the Acting Commissioner resolved the inconsistency by giving greater weight to the zone objectives or site specific provisions than to clause 3.7.4. 13. However, this argument cannot be sustained. Put simply, the Acting Commissioner did not consider clause 3.7.4 to not apply because its scope was limited to an existing village, nor did he disapply or read down clause 3.7.4 to resolve any claimed inconsistency in the manner claimed; but rather found that clause 3.7.4 did not apply to the McDonald's food and drink premises because he erroneously considered that a food and drink premises was not a retail development. 14. Had the Acting Commissioner found, as he should, that clause 3.7.4 applied because the McDonald's food and drink premises was retail development, he would have had to consider if the development complied with the clause, as well as other provisions of WDCP. But these steps never arose for consideration, because of the misconstruction - and it cannot be assumed that the result of that consideration could not have altered the outcome of the appeal. 4. In respect of the submissions in the ROS that Chapter B4 of WDCP was intended to apply only to existing, and not future, villages, as it is of some importance to the operation of the WDCP generally beyond these proceedings, Council notes that: (a) The Introduction to Chapter B4 of WDCP expressly provides that Chapter B4: …has been prepared to provide objectives, strategies and detailed planning controls for retail, office premises and business premises development … in addition to the specific zone objectives and the planning controls contained in Wollongong Local Environmental Plan 2009 …applies to any retail, office premises, business premises … or mixed use development on land zoned either: B1 Neighbourhood Centre, B2 Local Centre, B3 … under Wollongong Local Environmental Plan 2009. (b) The objectives of the Retail and Business Centre Hierarchy Strategy contained in clause 3.1 refers at 1(a) and (e) to "existing and planned retail and business centre/s". (c) Figure 1 in Chapter B4 'Retail and Business Centre Hierarchy in Wollongong Local Government Area' expressly includes, at the 'Towns' level of the hierarchy, "Future centres at West Dapto" and at the 'Village' level, "Horsley, Kanahooka, Future centres in West Dapto." (d) Chapter D16 provides in its Introduction that "Other parts of this DCP continue to apply to the West Dapto Release Area in conjunction with this chapter. Part A of the DCP contains the Introduction and Part B Land Use Based Planning Controls". (e) No emphasis can be placed on the fact that Wongawilli centre is not specifically listed under clause 3.7.2. Indeed, even some well-established village centres such as the Lakelands Shopping Centre Complex (in which IGA Parkside is located) which the Respondent took the Court to in the Class 1 proceedings are not listed in that paragraph. 5. It is clear from the above that Chapter B4 and, more specifically, clause 3.7.4, applies to both existing and planned centres, including centres for which locality based/precinct planning controls are contained in Part D of the WDCP. 6. Finally, at Paragraph 3.19 of the ROS, the Respondent references the observation made by McClennan CJ in BGP Properties Pty Limited v Lake Macquarie City Council that "planning decisions must generally reflect an assumption that, in some form, development which is consistent with the zoning will be permitted." This is uncontroversial and is no answer to Council's asserted error of law. There could be no argument that some form of food and drink premises is not envisaged under the zoning (and the WDCP). However, the circumstances of the particular development for which consent is sought must be considered in the context of all matters which are required to be considered under section 4.15 of the EP&A Act.

[30]

Mr To's oral submissions on Grounds 1 and 2

Although the above‑set‑out extracts from the Council's written submissions comprehensively, but concisely, explains the bases for Grounds 1 and 2, it is appropriate to set out how Mr To addressed these matters in his oral submissions (although it is not necessary to do so extensively).
Mr To commenced his oral submissions by taking me through the relevant factual elements of the proposed development as set out in the Acting Commissioner's first decision, commencing with the original version. He next took me to the plan detailing the revised development layout, being that subject of the Acting Commissioner's second decision and to which the Acting Commissioner gave consent.
Mr To then took me through the context of the site and the various elements within the approved development on the site engaged in the appeal. He next turned to explain how the Acting Commissioner had addressed the issues involved by grouping them (as described in the Acting Commissioner's decision at [69]). Mr To continued his analysis of the Acting Commissioner's decision by taking me through the material concerning traffic and parking utilisation on the site, as addressed in the decision, and explained the Council's concerns with respect to them.
Mr To next took me through the way the Acting Commissioner had considered matters arising from the DCP and, in doing so, noted the complaint in Ground 1 concerning the Acting Commissioner's statement that the proposed McDonald's was not a new retail development. He submitted that, as a consequence of that error, the Acting Commissioner had not properly considered and applied cl 3.7.4 of the DCP. This, he noted, was at the heart of the Council complaints in Grounds 1 and 2.
Mr To continued to take me through matters in the Acting Commissioner's decision relevant to this point.
Mr To then turned to the way that the Acting Commissioner had addressed pedestrian movements to and within the site, including in the context of the deficiencies which the Acting Commissioner had identified (and which were later reflected in the amended layout which approval was given).
Mr To next took me through the elements of the Acting Commissioner's decision concerning the Council's position concerning fast food and the objectors' submissions opposing the proposed McDonald's restaurant.
Having taken me through the Acting Commissioner's decision as summarised above, Mr To then turned to the detail of the DCP. After a general introduction to its structure and of its hierarchy of centres, he turned to cl 3.7.4 and how it provided the basis for Grounds 1 and 2 of the Council's appeal. He submitted (Transcript 30 May 2022, page 18, line 48 to page 19, line 9): The provision, a control in council's submission was that any new retail development within any of the village centres shall be limited to retailing activities and services which provide for the daily convenience needs of the surrounding residential community, especially healthy food retailing. This may include small supermarkets/retail grocery stores, butcher shops, fruit and vegetable retailers, bakeries, newsagents, hairdressing salon, dry cleaning shops et cetera. That's the provision which the council urged on the commissioner as applicable and which the council said to the commissioner that the proposed development did not comply especially in respect of the scale of the elements of the application and the McDonald's fast food restaurant.
He next addressed the context of Wongawilli in the West Dapto Release Area. It is unnecessary to set out detail of his analysis (it is sufficient to note that it gave me an appropriate understanding of that context for the purposes of my consideration).
In this context, Mr To took me through the neighbourhood plan for Wongawilli North, but acknowledged that some changes in road design (particularly the upgrade of West Dapto Road) meant that elements of that plan were no longer capable of being implemented.
Mr To turned to the gravamen of the Council's complaints concerning the Acting Commissioner's approach to cl 3.7.4 of the DCP. It is appropriate to reproduce the relevant passage of his submissions on this point (Transcript 30 May 2022, page 27, line 21 to page 28, line 44 - passages concerning a courtroom technology malfunction omitted): Turning to the first observation, the commissioner found food and drink premises was not new retail development and that is a finding that plainly was in error. I took your Honour a moment ago to para 86 of the judgment in which the food and drink premises as a species of retail premises was set out by the commissioner. What is also to be noticed is that in para 87 the commissioner had recorded: "The McDonald's restaurant...of retail premises." So there was no doubt that it was retail premises, at least at that point when he was writing that part of the judgment and I remind your Honour that this appeal was concerned with a vacant parcel of land. So the passage in para 256 that it was not a new retail development and, rather, the retail/commercial space meaning the four tenancies is intended to fulfil the role of providing convenience needs was one in my submission that was a clear error. It was plainly wrong. What that meant is that the commissioner did not then ask himself, does the McDonald's component as a new retail development meet cl 3.7.4. There's no doubt that he did so for the tenancies and he found in favour. That was the passage from para 273 in which he said that the area of 600 square metres is sufficient to meet the objectives of DCP 2009 "albeit perhaps only just." That's at p 59 para 273. The consequence of the error was that the commissioner never turned his mind expressly to whether the food and drink premises, the McDonald's, did or did not comply with the clause and having not done so, there was no occasion and he did not then consider whether it provided for daily convenience needs, was healthy food and retailing relevantly and perhaps had he concluded that the clause was not met by the food and drink premises, how that should weigh in the overall decision to grant or not grant development consent. That is not to demur from the fact that the commissioner found other contentions as not warranting refusal so for example the consistency with zone objectives or that parking provision would be acceptable. But the failure to apply cl 3.7.4, properly construed, means in council's submission that the-- ….. TO: I was observing that although the commissioner determined that McDonald's as a food and drink premises would not be refused for being inconsistent with the zone objectives for the B1 zone, this did not mean that a proposal for a food and drink premises could still not be rejected because it would not comply with a DCP provision such as cl 3.7.4 which favoured particular forms of retailing and that is so notwithstanding that there may be other provisions of the DCP that the commissioner found either would not warrant refusal or ought to be changed. That is why the argument of the respondent, that is, McDonald's in this appeal, that any error was not vitiating should not be accepted because that proposition could only be correct if the application of cl 3.7.4, properly construed and applied, could not have affected the commissioner's decision and that is a proposition which in my submission can't be established.
Mr To summarised his opening submissions with respect to Grounds 1 and 2 (as founded on cl 3.7.4 of the DCP) in the following terms (Transcript 30 May 2022, page 32, lines 4 to 19): TO: In respect of grounds 1 and 2, they are closely related. I think your Honour now understands that we put the ground as being the misapplication, misconstruction and therefore misapplication of cl 3.74 of ch B4 and because of that misapplication which is ground 1, what the commissioner failed to do, in my submission, was made cl 3.74 as properly construed the focal point of consideration. As I say, that failure meant that that element, that is, compliance with 3.74 or otherwise, was not part of the commissioner's reasoning in determining whether or not to grant development consent, despite having correctly recognised at paras 243 and 244 the task was consider whether the control applied, and if the proposal didn't meet it, whether or not the departure is such that consent should be refused. That is the error of law that is vitiating to the application. It is vitiating because, in my submission, it cannot be that a different conclusion could not have been arrived at had cl 3.74 been properly applied with the available evidence to the commissioner.

[31]

Mr Galasso's oral submissions on Grounds 1 and 2

Mr Galasso commenced his oral submissions addressing Grounds 1 and 2 saying that there were two particular aspects he wished to address. The first was how matters raised had been addressed in the Acting Commissioner's first decision, and how that element of the case had been advanced by the Council. The second was the question of materiality.
Mr Galasso first submitted, with respect to Ground 1, that cl 3.7.4 of the DCP was not engaged for consideration by the Acting Commissioner as a consequence of its express terms. Second, that this ground had to be understood in the context in which it was raised by the Council and how the Acting Commissioner had addressed it. Finally, he submitted that if there was a defect in the fashion advanced by the Council, it was not material to the Acting Commissioner's decision.
Mr Galasso submitted that a proper understanding of the DCP made it clear that the hierarchical arrangement, which had been established at the time of ch B4 of the DCP, predated the identification of a centre at Wongawilli, let alone a centre of the nature now being considered.
He developed this submission by taking me through the relevant elements of the DCP applicable to "village centres", developing the proposition that a proper understanding of these provisions made it clear that they could not be regarded as applicable to the Wongawilli site.
He next moved to ch D1 of the DCP where the Wongawilli site first was addressed. He then took me through the relevant provisions in the chapter which he submitted were relevant to my consideration of what was relevant to the site in the context of this appeal, including what was envisaged for this Wongawilli site.
Mr Galasso next turned to the matter of the difference between the LEP and DCP definitions. To understand this submission, it is appropriate to set out the relevant portion of the transcript where he raised this matter (Transcript 30 May 2022, page 49, line 30 to page 50, line 7): One further matter I wanted to raise, and this is consistent with our proposition that 3.7.4 is not engaged, and that is you cannot assimilate the definitions in the DCP with the definitions in the LEP and the reason for that is they're different. You might think they look the same but they're actually different. First of all, food and drink premises at 1113 is in different terms to the definition of that concept in the LEP which is at 878, still in the same volume. Your Honour can do the physical gymnastics. It's in different terms in words, milk bars although it's got pubs in there but it's a different definition. It's not the same thing, but most importantly - and this then leads us to the second proposition which is the contextual argument, is that retail premises is also in different terms. It may well be that the chapeau - sorry, the retail premises definition in the LEP is at 896 and it may well be that the chapeau up to the word "wholesale" is similar or identical but what's important is the inclusions are not the same in the DCP and the exclusions are not the same in the DCP and your Honour notes in any case at 896 that there was an item that was included in A that's now been repealed. So what the LEP definition is talking about is we would submit different to the context of what the DCP is talking about. They are not synonymous and the whole part of the council's case in this ground 1 is to parachute in, as it were, on a particular paragraph of the judgment. It's para 256 and say that to the extent that the commissioner said the food and drink premises is not a new retail development, rather the retail commercial space is intended to fill that role of providing convenience needs, two propositions from that. On the proper appreciation of the DCP, that is correct, and secondly, as we'll see in a moment, on the way that the council advanced its own case, that proposition is unexceptionable.
Mr Galasso then turned to address the specificity of the language used by the Acting Commissioner in [256] of his first decision, and the Council's complaint about it. Mr Galasso took me to the judgment of the (then) President of the Court of Appeal in Orr, specifically to the passage earlier set out at [33].
He also took me to the earlier quoted elements of the judgment of Pepper J in Tanious. In doing so, he took me through the elements of those judgments which he considered here arose to be taken into account when reading the Acting Commissioner's decision (particularly [256]).
Mr Galasso next took me through a number of the details of the development as it was before the Acting Commissioner for the purposes of his first decision (that is, including the proposed childcare centre).
He then indicated that he wished to take me through various elements of the Acting Commissioner's first decision so that I could understand how it was to be read, having regard to the principles for examining, on appeal, decisions of those undertaking merit decision‑making processes (as is here the case).
It is appropriate to set out, for understanding later elements of Mr Galasso's submissions, what he noted as arising out of the Acting Commissioner's first decision specific to retail premises as setting the scene for what later requires consideration concerning [256] (Transcript 30 May 2022, page 54, lines 20 to 33): … He then recites the definition of retail premises in 85, noting again his emphasis to element (c), food and drink premises. He then in 86 recites the definition of food and drink premises and in 87 he makes the finding that, "The McDonald's restaurant...with development consent." Now that is critical because it's in the same judgment that the council complains vis-à-vis para 256 with the assertion or the allegation that his finding is contrary to the terms of the LEP. That is, where the commissioner says in terms of an observation that the food and drink premises is not a new retail development, rather the retail commercial space is intended to fulfil that role of providing convenience needs. He did not ever make a finding that the McDonald's was not retail. In fact, at 87, he made the contrary finding and we'll see when we get to 256 that he was talking about the DCP in a particular context.
Mr Galasso then continued taking me through elements of the Acting Commissioner's decision, sequentially, concluding with the Acting Commissioner's comments at [141]. Having taken me through all that material, Mr Galasso then interposed, into his journey through the Acting Commissioner's decision, the following (Transcript 30 May 2022, page 56, lines 5 to 12): Now one would think that we then lead to his findings about the controls but this is the context bit that I want to emphasise for your Honour, that in fact as we'll see now the context of the ultimate finding was a context in which the evidence to the extent that it spoke about new retail was directing its attention to the 600 square metres of as yet nondescript retail/commercial space, not the McDonald's, and that's an important contextual matter to bear in mind when you read the judgment in its entirety and context.
Mr Galasso continued to take me through the Acting Commissioner's decision, summarising the descriptive matters before reaching the point where the Acting Commissioner turns to his consideration of the issues in dispute.
Mr Galasso next took me to [220] and part of [221] where the Acting Commissioner, in the context of the objectives of the B1 zone, addressed the topic of "serving the needs of people who live and work in the surrounding neighbourhood". In this context, in [221], Mr Galasso noted that the Acting Commissioner had observed that the final tenancies of the 600 m² ‑square‑metre retail/commercial space were, at that time, undefined but that it was accepted that the ultimate uses would serve the needs of the surrounding neighbourhood.
Mr Galasso continued, noting that Mr Cullen's evidence was not directed to McDonald's as a retail use for the purposes of the DCP but that the economic evidence was about the other uses and their capacity to deal with and provide for as an objective the matters that are in the DCP (Transcript 30 May 2022, page 58, lines 37 to 40).
Mr Galasso then reached the point of the Acting Commissioner's decision where he set out, at [255], cl 3.7.4 of the DCP. Mr Galasso then addressed [256] of the first decision, submitting (Transcript 30 May 2022, page 59, lines 20 to 40): "Two observations should be made." They're observations, not findings. He has made the findings already about the retail and food and drink premises: "First, in its...daily convenience needs." He doesn't say in the next sentence that the food and drink premises is not retail development. That's an important distinction to be made; see para 87 and the substantive point at 217. He says it's not a new retail development. Rather, in terms of the objective, the retail/commercial space of this proposal is intended to fill that role of providing convenience needs. Why does he say that? Because that's the case that was before him. Why is that the case that was before him? Because as I demonstrated, your Honour, by reference to the urban economics evidence summarised at 146 and following, that was the case before him. Hence the context in which he makes that observation is important to bear in mind because that is the context in which he makes the observation, and I've already dealt with the second proposition which is that the DCP cannot be read so as to prohibit development other than retail development in the B1 zone. That is entirely correct. The retail component is to be included but not other permissible uses excluded, that includes the food, and we would submit that on that basis your Honour in context will see that there's no aspect of ground 1 that is any error let alone any vitiating error.
He then took me through paragraphs that followed in the decision, particularly from [270] onward (later set out by me), where the Acting Commissioner addressed the potential utility of what might be accommodated within the 600 square metres of retail space proposed for the south‑eastern corner of the site.
At this point, the proceedings were adjourned to 7 June 2022 to permit Mr Galasso to finish his submissions.
At the commencement of the resumed hearing, Mr Galasso addressed Ground 2. He summarised it as asserting that the essence of Ground 2 was that the DCP did not form the focal point of the Acting Commissioner's consideration. He then took me through a wide range of elements of the Acting Commissioner's first decision where provisions of the DCP were set out, and where, in particular between [217] to [224], Mr Galasso submitted that "the Commissioner actually analyses the very aspect of 3.7.4 that the Council complains of" (Transcript 7 June 2022, page 2, lines 13 and 14). Mr Galasso then turned to further elements of the Acting Commissioner's decision where, it was submitted, the Acting Commissioner had continued to address matters raised by the DCP.
It is to be noted that the above submissions addressed not only the chapeau to Ground 2, but also subgrounds 2.1 and 2.2.
Mr Galasso then turned to subground 2.3. He commenced his submissions proposing that I should be cautious about this subground, saying (Transcript 7 June 2022, page 2, line 44 to page 3, line 3): There is then the matter about the health concerns. We respectfully submit that the Court would be cautious to deal with the health concerns in the way that the council has raised them in this appeal, which is limited to a question of law. In the council's written submissions at para 36, the council says that in terms of a failure in terms of cl 3.7.4, that equated to a "failure to consider...and unhealthy food", and then orally on the last occasion, that was, to a certain extent, watered down by my learned friend in saying that it did not amount to a defect in terms of consideration of the objector's evidence, but rather it's because of a step that the Commissioner should have gone through; we would submit that in fact he did analyse it.
Mr Galasso then took me through portions of the Acting Commissioner's decision where he had set out the objectors' oral evidence.
Mr Galasso then took me to [211] of the Acting Commissioner's decision where the Acting Commissioner had noted the nature of the Council's submissions on this point ([211] is later set out by me in my consideration of this sub ground).
Mr Galasso next took me to [299] to [309], the paragraph in which the Acting Commissioner had noted that the Council had not called any expert evidence on social impacts. It is appropriate, here, to note that Mr Galasso submitted that there was not only no expert evidence concerning the general propositions that had been advanced concerning the food offering of McDonald's, but that there was no expert evidence concerning how this particular proposed McDonald's would give rise to adverse effects when there was a range of other McDonald's locations, including one in Dapto some 10 minutes' drive away.
Mr Galasso then turned to the remainder of the Acting Commissioner's analysis of matters arising under this subground (the entirety of the relevant portion of the decision being set out in my later consideration of this subground).
Mr Galasso then turned to the matters raised by the various objector submissions that were in evidence. Finally, on this subground, Mr Galasso noted that much of the objectors' evidence concerned the proximity of the McDonald's restaurant to the proposed childcare centre, a childcare centre which the Acting Commissioner had rejected.

[32]

Mr To's oral reply submissions concerning Grounds 1 and 2

Mr To commenced his reply submission by addressing the proposition advanced on behalf of the Company that cl 3.4 of Pt B of the DCP did not apply to future "village centres" such as that in Wongawilli, the subject of the proceedings. He briefly summarised the reasons he had earlier advanced in support of this proposition, saying (Transcript 9 June 2022, page 13, lines 43 to 48) as to how cl 3.7, particularly cl 3.7.4, should be read: When we get to 3.7.4, and we've been through those six numbered paragraphs, it is undoubtedly the case that some of them, particularly the first two numbered clauses of 3.7, are descriptive of existing villages, but read in the context of what the chapter itself has said about it being applicable to existing and future, one would not read 3.7.4 as being limited in that way, and, of course, the Commissioner did not decide the case in that way.
He next turned to the proposition advanced for the Company that there was an inconsistency between cl 3.7.4 and the provisions in Chapter D16 of the DCP. He acknowledged that there was a hierarchy but, in the context of the decision of the Acting Commissioner, observed that the Acting Commissioner had not made any finding of inconsistency (I interpolate that, on my understanding of this, Mr To proposed that any submission of inconsistency was not relevant).
Mr To then turned to the judgment of the Court of Appeal in North Sydney Council v Ligon 302 Pty Ltd (No 2) [1996] 93 LGERA 23, at 30. In reliance on the passage to which he had taken me, he submitted that cl 3.7.4 was a provision that is more detailed and is restrictive unless considerations are met in that clause. This was consistent with the Court of Appeal's judgment, he said, and that there was no inconsistency as a result. He repeated his earlier comment that the Acting Commissioner had not decided these issues as matters of consistency.
Mr To then turned to the question of context and the Company's submissions concerning Mr Cullen's evidence which had addressed the 600 square metres of retail premises proposed for the south‑eastern corner of the site. For a proper understanding of this submission, it is appropriate to set out how Mr To described what he proposed was how the Company characterised what had been addressed and how, appropriately, it should properly be understood. He submitted (Transcript 9 June 2022, page 14, lines 36 to 49): The next point I move to, your Honour, is the question of context. The respondent in effect invited the Court to consider the economic evidence of Mr Cullen, which naturally focused on the 600 square metres of retail tenancy proposed, as the basis to argue that council in effect did not run a case that McDonald's itself, that is the food and drink premises, did not satisfy the intended outcomes of the DCP, including cl 3.7.4, as distinct from just merely concentrating on the insufficiency of the 600 square metres offered. That proposition is not correct, there were in effect twin propositions that were run in the court below; one is that McDonald's itself was, as part of the overall development, not a component that would meet the requirements of the DCP and what it envisaged, and allied to that but separately to that is that the retail offering that was otherwise provided in the form of the 600 square metre tenancies equally did not meet the requirements of the DCP. That was a proposition that was set out in the opening of the case.
Mr To took me, then, to a range of transcript and submission references which he proposed provided support to the above passage, indicating that nothing in them could lead to a conclusion that the Council had, in any way, failed to identify the McDonald's restaurant as constituting retail premises and, as I understood him (as earlier addressed in the Council's written submissions on Ground 1 and Mr To's oral submissions concerning Grounds 1 and 2), that this was the error of law into which the Acting Commissioner had fallen.
Mr To then moved to addressing the submissions made on behalf of the Company as to the differences between the definitions in the LEP and the DCP - submitting that, when they are compared, there is no relevant difference and that, to the extent that words were different, that was irrelevant in its present context. He noted that the definition of "food and drink premises" in the DCP expressly acknowledged that such premises were a subset of "retail premises" and that, as a consequence, nothing arose from any difference that there might be between the LEP and DCP definitions.
Mr To then turned to the issue of materiality. He submitted that I should conclude that, had the Acting Commissioner addressed cl 3.7.4 in the fashion proposed by the Council, it was not inevitable that the Acting Commissioner would have reached the same outcome to determine the appeal before him.
He followed this by referring to an exchange which I had had with Mr Galasso as to how the word "needs" was to be understood, accepting that the approach adopted by Mr Galasso was correct that the concept was not confined to matters essential for human life.
He then took me to seven of the objections to the proposal (ones to which he had not taken me during the course of his primary submissions) as containing passages concerning what those objectors saw as being their needs and what did not meet their needs for the purposes of cl 3.7.4 (Mr To accepting, after an exchange with me, that those views were not representative of any community organisation but submitting that they were, as I understood him, a sufficiently representative sample of that community for these purposes).
He concluded his reply submissions concerning Grounds 1 and 2 by summarising, in more general terms, what the Council advanced as the basis upon which I should conclude that the Acting Commissioner had committed the errors pleaded by the Council in those grounds (Transcript 9 June 2022, page 16, line 43 to page 17, line 3): Your Honour, so that deals effectively with materiality. I think I want to make one further comment as I haven't made a distinction particularly between grounds 1 and 2 in this part of the response because they're linked grounds so far as the applicant is concerned. As you will have appreciated from the summons, the second ground, the failure to make a focal point of consideration, is about 3.7.4; it's not that there is an allegation that the Commissioner failed to consider the DCP generally, that was a submission that Mr Galasso was careful to make, but when you look at the way the appeal has been framed, and indeed this was reflected in the applicant's submissions, it is confined to not having correctly construed 3.7.4 and therefore considered it and made it a focal point of consideration.

[33]

Consideration of, and conclusion on, Ground 1

Given the conclusion which I have reached concerning the proper approach to be taken to what the Acting Commissioner said in [256] of his first decision, and the context within which it is to be understood for present purposes, it is not necessary to deal with the proposition advanced on behalf of the Company that cl 3.7.4 of the DCP could not be regarded as applying to the site. Although I have earlier set out, in brief summary, how Mr Galasso advanced this point, I am satisfied that it does not require to be determined because, even on the Council's case that cl 3.7.4 is engaged, for reasons discussed below, the error in the language used by the Acting Commissioner in [256] does not give rise to a legal defect which would vitiate his decision.
The specific complaint pressed by the Council in Ground 1 arises from the statement by the Acting Commissioner, in [256] of his first decision, that the proposed McDonald's restaurant was "not a new retail development" for the purposes of his consideration and what the Council submitted were the consequences flowing from this error. The precise terms in which this ground was pleaded were set out by me at [25].
As can there be seen, critical to understanding this ground is what is contained in cl 3.7.4 of ch B4 of the DCP. This is in the following terms: 4 Any new retail development within any of the village centre shall be limited to retailing activities and services which provide for the daily convenience needs of the surrounding residential community, especially healthy food and grocery retailing. This may include small supermarkets/retail grocery stores, butcher shops, fruit and vegetable retailers, bakeries, newsagents, hairdressing salons, dry cleaning shops etc.
The relevant paragraph of the Acting Commissioner's first decision containing the passage that gives rise to the Council's complaint was in the following terms (emphasis in original): 256 Two observations about this should be made. First, in its terms the provision relates to new retail development and endeavours to limit its scope to providing daily convenience needs. The food and drink premises (McDonald's) is not a new retail development, rather the retail/commercial space is intended to fulfill that role of providing convenience needs. Second, WDCP 2009 cannot be read so as to prohibit development other than retail development in the B1 zone. The clause does not affect or change the elements of the desired development I have set out at [141] - the retail component is to be included, but not other permissible uses excluded.
I have earlier set out the definitions of "retail premises" and "food and drink premises" from both the LEP and the DCP.
As can be seen, "food and drink premises" are a subordinated and included class of premises falling within the broader range of premises encompassed by the "retail premises" definition (the differences between the LEP and DCP definitions not mattering for these purposes).
It is clear that, for the purposes of the LEP and the DCP, the proposed McDonald's restaurant is a "food and drink premises" and, as a consequence of the terms of the definitions of "retail premises", falls within that definition by virtue of inclusion in the list of uses encompassed by this broader classification.
As can earlier be seen from Ground 1 reproduced at [26] and the submissions made by Mr To, the Council proposes that the Acting Commissioner's assertion that the McDonald's restaurant was not "retail premises" for the purposes of his analysis (including his consideration of cl 3.7.4 of the DCP) was an error of law warranting upholding of the Council's appeal.
It is, as a preliminary matter, appropriate to note that, at [85] and [86], the Acting Commissioner set out the LEP's definitions of retail premises and food and drink premises. He then made the following specific observation, at [87]: 87 The McDonald's restaurant and drive through is permissible as food and drink premises, a species of retail premises, which in turn is a species of commercial premises which is permissible in the B1 zone with development consent.
He followed this acknowledgment of the fact that the McDonald's restaurant was food and drink premises with observations, at [88], concerning the four further retail tenancies proposed to be constructed in the south‑eastern corner of the site, saying: 88 Whilst no particular use of the retail/commercial premises is proposed in this DA, it is clear that there are a range of uses to which the premises can be put in the future. Those uses include office premises, food and drink premises, business premises such as dry cleaners, travel agents, funeral home and the whole range of retail premises, including the use for the purposes of a shop.
However, it is to be acknowledged that in making the statement in [256] of his first merit decision, that the McDonald's restaurant was not "retail premises", was incorrect and that, as a type of "food and drink premises", the proposed McDonald's restaurant fell squarely within the definition of "retail premises".
This, however, is not the end of the matter for the purposes of my consideration. It is also appropriate to consider the context within which this erroneous observation was made and, thus, how it is to be viewed for the purposes of determining whether or not it was an error which had the potential to, and in fact did, operate to vitiate the Acting Commissioner's decision.
It is clear from the surrounding paragraphs of the Acting Commissioner's decision, within which the erroneous statement was made, that the Acting Commissioner was turning his mind to consideration of the adequacy and appropriateness of the four retail space elements in the building proposed to hold the four shops totalling 600 square metres of floor space in the plaza area to the east in the West Dapto Road/Raven Street corner of the site. In this regard it is now appropriate to set out the relevant preceding paragraphs that provide the context within which [256] is to be read. These were [248] to and including [256]: 248 Clause 3.7 of Chapter B4 WDCP 2009 speaks of requiring "any new retail development within any of the village centres shall be limited … provide for the daily convenience needs of the surrounding residential community." 249 Chapter D1 of WDCP 2009 concerning desired future character uses slightly different language: "The village will include a small local convenience centre on West Dapto Road, which will provide for the convenience needs of the surrounding population." 250 The desired future character speaks not of "daily" convenience needs, just convenience needs, and for the surrounding population, not the surrounding residential community. 251 Chapter D16 WDCP 2009 provides for development in the West Dapto Release Area. It provides principles for development, a similar but not identical retail hierarchy to that in Chapter 3, general village centre controls and a specific "control" for the B1 land in Wongawilli. The chapter was drafted specifically for the West Dapto Release area as an emerging residential area for which the Council developed specific and particular objectives and controls. 252 It seems to me that the proper consideration of WDCP 2009 is to give greater weight to the site specific and locality controls or objectives, which are intended, it must be assumed, to facilitate the achievement of, or at least be consistent with, the earlier more general controls, objectives and principles in the chapter dealing with the West Dapto Release Area. When the local controls are lacking or are ambiguous, greater consideration or weight is to be given to the more general controls, objectives and principles. 253 At [133] - [141] I analysed by comparison the controls and the guide to the development of the site in Fig 21 and identified the elements of development of the site which I consider the local controls seek to achieve. In my opinion those elements are consistent with the relevant provisions of Chapter B4 clause 3.7 WDCP 2009. A couple of points should be noted. 254 The provision of a "small supermarket" (clause 3.7 see [110]) is consistent with the required element to "include a grocer/supermarket and mixed retail". 255 Clause 3.7.4, Chapter B4 WDCP 2009 (see [110]) is focussed on as an important objective of development of the site. It says: "Any new retail development within any of the village centre shall be limited to retailing activities and services which provide for the daily convenience needs of the surrounding residential community, especially healthy food and grocery retailing. This may include small supermarkets / retail grocery stores, butcher shops, fruit and vegetable retailers, bakeries, newsagents, hairdressing salons, dry cleaning shops etc." 256 Two observations about this should be made. First, in its terms the provision relates to new retail development and endeavours to limit its scope to providing daily convenience needs. The food and drink premises (McDonald's) is not a new retail development, rather the retail/commercial space is intended to fulfill that role of providing convenience needs. Second, WDCP 2009 cannot be read so as to prohibit development other than retail development in the B1 zone. The clause does not affect or change the elements of the desired development I have set out at [141] - the retail component is to be included, but not other permissible uses excluded.
The Acting Commissioner set aside consideration of the McDonald's restaurant as a consequence of a comment by Mr Cullen, the Council's economic expert, who had observed that he did not have any problem with the incorporation of a McDonald's restaurant in development capable of being approved for the site. The Acting Commissioner was here clearly addressing relevant elements of Mr Cullen's evidence - evidence set out at [151] to [154] of his first decision. These paragraphs were in the following terms: 151 Mr Cullen said that the dominance of the McDonald's on the site relegates the site's desired role as a village centre from primary to subservient. He opined that the McDonald's restaurant and drive through prevented the opportunity to provide an appropriate amount of retail space to achieve the objectives of the planning controls and strategies. Mr Cullen's understanding from his communications with Metcash was that a 600 sqm area was insufficient for their purposes. The key point of Mr Cullen's opinion was expressed at par 2.8 of their joint report: "The core issue for this site is the displacement of the role and capacity of the Village Centre cause by McDonald's domination of the site. The smaller retail offer, even if feasible under the McDonald's plan (in my view it's not) requires adjustments and compromise to store location, servicing regimes, exposure, scale of offer, urban amenity and interfaces. If one accepts that a smaller centre can still occur under the current plan (I don't) then it meaningfully "detracts from shopper convenience and choice objectives". At present in front of us in the McDonald's plan is four shops in a partially access-denied street." 152 In his oral evidence Mr Cullen expressed much the same proposition in this way: "GALASSO: In your evidence you say to the Commissioner that what's before the Court is not consistent with the DCP, but it's the case, is it not, that the McDonald's component of what's before the Court is, as a matter of use categorisation, in your modelling, both restaurant and take-away; is it not? WITNESS CULLEN: Yeah, so are you asking me to say that McDonald's would be an acceptable occupier of a village centre in this area; is that what you're asking? GALASSO: Not really, but you may as well tell us if you want to tell us. WITNESS CULLEN: Okay. So I don't have any issue with McDonald's if they wanted to take, you know, tenancy of this size, providing we can serve the needs of people who live and work in the surrounding neighbourhoods appropriately. So at the moment in front of us, and this is a consequence of the proposition put by McDonald's, is we have a neighbourhood retail component of 600 square metres on a site that's 7,591 square metres in size, and so what we have is a predominance of a use in the restaurant and take-away category that's taken away the opportunity for the centre to serve the needs of people who live and work in surrounding neighbourhoods. That's the problem I have." (Tcpt 27 July 2021 p 144 (25-45) 153 Mr Cullen agreed with Mr Hill that with a retail offer limited to 600 sqm the village centre would not be the primary daily and weekly shopping source but that would occur at a larger supermarket in a nearby town centre. When asked about the capacity of a 300 sqm supermarket to provide for the day-to-day needs of people who live or work in the area, Mr Cullen said: "Not to the extent required by the DCP and the LEP." (Tcpt 27 July 2021 p 160(1)) 154 Mr Cullen did assert that the village centre could sustain 2500 sqm of retail space (anticipated in Fig 21) which he said is supported by strategic planning documents and studies. Mr Cullen was specifically critical of the interface with West Dapto Road, the lack of activation of the proposed plaza because of its relationship with McDonald's drive through, and the plaza's relationship to the rear of the retail shops on Raven Street.
It is also relevant to note the observation made by the Acting Commissioner, at [147], concerning his approach to Mr Cullen's evidence. The Acting Commissioner said: 147 … Mr Cullen's expertise does extend to urban design insofar as it relates to urban economics and town design. Some of his evidence was based upon his understanding of the effect of the planning regime, but particularly on what he understood to be the controls in WDCP 2009. The Council in its submissions relied to a degree on that aspect of his evidence, but I observe, without criticism, that I would give greater weight to the evidence of the planners and urban designers to the extent of that overlap. I do not discount Mr Cullen's evidence in that regard, but simply pose its place in the broader context of the expert evidence.
The relevant contextual analysis undertaken by the Acting Commissioner in [270] to [278] of his first merit decision, in which he explains why he is satisfied that the 600 square metres of retail space in the subsidiary retail plaza area was adequate for the purposes of complying with the relevant planning controls (even though future uses for these tenancies were not identified for the purposes of his decision, but would arise for consideration when future development applications were made to approve the uses of those premises) provides the appropriate context within which to understand the infelicitous and erroneous observation by the Acting Commissioner that the McDonald's restaurant was not a new retail development. These paragraphs of the Acting Commissioner's first decision were in the following terms: Grocer/supermarket/mixed retail 270 There was much debate about the capacity of the proposed 600 sqm of retail/commercial space to meet the objectives. Whilst the larger the retail offering the more products and variety can be offered, there is nothing in the instruments which suggest to me that the village centre must meet the needs of every person every day, nor the daily needs of every person every day. 271 However the "needs" are expressed in the various iterations in WDCP 2009, the site specific control refers to a "small grocer" and some "mixed retail" shops as part of a small convenience centre. Putting Fig 21 to one side, that statement is surely intended to reflect that the village centre, by providing a small grocer and some mixed retail shops will be likely to provide for "convenience needs" (clause 3.50 see [112]), "daily convenience needs" (clause 3.7 see [110], clause 3.2.5(d) see [108]) and the "needs" (first zone objective) of those who live and work in the surrounding neighbourhood. 272 Fig 21 in this regard appears on its face to require something more than the words of the site specific control require, and to the exclusion of any of the other permissible uses. In my view Fig 21 cannot and does not require something more than what is expressed in the words preceding it. The "controls" do not expressly exclude other uses. Fig 21 is a "guide" and in my view does not in this regard operate to contradict the written "control" or the range of permissible uses. It is a guide, including a guide to the general form of development on the B1 land. 273 In my view an area of 600 sqm for retail/commercial uses is sufficient to meet the objectives of WDCP 2009, albeit perhaps only just. 274 The most compelling evidence which leads me to that conclusion was the inspection of IGA Parkside, a supermarket of some 300 sqm of retail space (excluding loading area). It was clear that a supermarket of that size can more than adequately meet the daily needs of the residents and workers in the surrounding neighbourhood. It appeared to offer the whole range of general supermarket products, but obviously not every brand of product, nor more specialized products which are expected to be found in a larger supermarket which serves a larger catchment. 275 The number and range of products was significantly greater than typically one would find in a convenience store such as 7/11 and to my mind would be a larger offering than "a small grocer" and of itself can be expected to meet the "convenience needs", "daily convenience needs" and the "needs" of those who live and work in the surrounding neighbourhood in respect of supermarket or grocer provisions. 276 Assuming 300 sqm is sufficient for a small supermarket then the remaining 300 sqm is sufficient size for 3 "neighbourhood shops", being a maximum of 100 sqm each as expected in cl 5.4 of WLEP 2009. As the Applicant's alternate design demonstrated, a use such as hairdresser can be accommodated in 50 sqm so there are a variety of possibilities. 277 It matters not that according to the economic experts up to 2500 sqm of retail could be economically viable on the site. Apart from that being a potential risk to the retail hierarchy, the planning instruments do not require the whole of the B1 land to be developed with retail uses, nor to maximize retail uses for so long as those uses are economically viable. The focus is first on needs (WLEP 2009 zone objective) then on the convenience needs expressed in a number of ways in WDCP 2009. There is no question that a proponent can seek a non-retail use such as food and drink premises or the many other permissible uses, and also provide other uses to meet the needs of the local living and working population, including a small grocer/supermarket. 278 It follows that in my opinion the provision of 600 sqm of retail/commercial space meets the control or objective to provide for, or provide the opportunity for, a small grocer/supermarket and mixed retail to provide for the convenience needs and daily needs of those living and working in .the surrounding neighbourhood.
Understood in this correct context, where the Commissioner was satisfied that there was no objection raised by the relevant Council expert to the incorporation of the McDonald's restaurant on the site (noting Mr Cullen's concern it was not to be dominant - transcript extract at [152] of the decision) and the necessity for the Commissioner to consider the adequacy of the additional retail spaces for assessing compliance with the relevant planning controls, it can be seen that his incorrect observation was merely one setting aside of the McDonald's restaurant for the purposes of this element of his consideration.
Although not repeating "Chapter B4 clause 3.7" of the DCP as a mantra, it is clear that the Acting Commissioner gave full and detailed consideration to what was raised by this portion of the DCP, including cl 3.7.4.
Whilst what was said in [256] was an error, a proper understanding of the context within which the erroneous assertion was made reveals that it played no role as a contribution to, let alone as a founding basis for, the Acting Commissioner's conclusion that the subsidiary retail elements in the West Dapto Road/Raven Street corner of the site were appropriate and satisfied the relevant planning controls.
Although an error, this error could not be regarded as one vitiating the Acting Commissioner's conclusion addressed in his first decision - namely, that the proposed retail elements for the site were potentially capable of being granted development consent subject to resolution of the other matters which he was required to address (Cacalot Pty Ltd v Sydney City Council (1996) 90 LGRA 424).
Ground 1 is rejected.

[41]

The oral objector evidence heard by the Acting Commissioner

At [54] of his first decision, the Acting Commissioner outlined the oral evidence given by three of objectors. One of those, Dr Norman, gave evidence relevant to this subground. The Acting Commissioner described her evidence at [57] to [60] of his first decision in the following terms: 57 Dr Norman is a dietician and a public health nutritionist. She has a PhD in public health and works in the field of childhood obesity for the Local Health District. She is an honorary research fellow with the Faculty of Social Sciences at the University of Wollongong, but her objection is her own and not on behalf of any organisation. 58 She said that the overall impact of this application will be detrimental to the wellbeing of the emerging communities of the West Dapto land release area for three principal reasons. First, that increased exposure to fast food restaurants has a negative impact on children's eating habits and, therefore, increases their risk of developing obesity. 59 Second, the proposal is in conflict with the West Dapto vision for the village centres that the communities will be healthy, sustainable and resilient. The vision also notes the role of villages as a lower-order centre is to provide a convenient alternative to the supermarket-based town centres for daily goods and that village centres should accommodate a small supermarket and variety shops. The McDonald's complex, said Dr Norman, is contrary to this vision and would be more appropriate to a larger centre where there is a mix of food retail outlets to ensure healthy food choices are available. 60 Third, Dr Norman drew attention to the United Nations Convention of the Rights of the Child which outlines children's rights to the provision of adequate nutritious food, and Australia is a signatory to this convention, so all children have a right to grow up in a healthy environment and have a fair chance in life. Article 3 of the Convention emphasises that the best interests of the child should be the primary consideration and all decisions and actions concerning children, and when governments are faced with conflicting priorities, all lobby groups, children must be given priority. Dr Norman said she believes the proposal is a threat to the health and wellbeing of local children and families.

[43]

The Acting Commissioner's consideration of relevant public submissions

First, it is to be noted that, in his summary of the submissions made on behalf of the Council, the Acting Commissioner expressly set out the nature of the submissions advanced on the "healthy food" topic. He did so at [211] of his first decision, saying: 211 The Council made submissions in relation to the health concerns expressed in some submissions from the public. Whilst expressly disavowing that the health effects from the consumption of fast food is itself a planning consideration, nor that it objects to McDonald's per se, it submitted that the concerns of objectors about healthy food is a planning consideration both as an aspect of social impact and of the public interest (subss 4.15(1)(b) and s 4.15(1)(e) of the EP&A Act). It submitted that the Court should have regard to the "extensive and consistent expressions of concern about health outcomes in the objector evidence… [and] Significant weight should be given to this evidence" because it has a scientific basis (CWR par 140). The concerns are said to be specific, concrete, likely effects of the proposal, citing New Century Developments Pty Ltd v Baulkham Hills Shire Council (2003) LGERA 303; [2003] NSWLEC 154 at [61] - [63].
For present purposes, it is next appropriate to reproduce the elements of the Acting Commissioner's decision where he addressed the question of the public interest in the broad context of these submissions. The Acting Commissioner said, at [299] to [311]: Public Interest 299 There is no specific contention of the Council which refers to the public interest in terms. Public interest is however a mandatory relevant consideration by virtue of s 4.15(1)(a) of the EP&A Act as are any submissions made as a consequence of the notification of the development application (s 4.15(1)(d)). 300 The Applicant submitted that there were two aspects of the submissions of objectors which were an aspect of the public interest, health outcomes and the potential to frustrate the community's vision for development of Wongawilli village. 301 The Council noted that a significant component of objectors' concerns related to the appropriateness of McDonald's as the specific type of food offering arising from concerns about what was said to be the relative un-healthiness of the food and the exposure to fast food on children's health outcomes. 302 Council then submitted: "[138] Council does not contend that the health effects from the consumption of fast food is itself a planning consideration. Not does it say … that it objects to McDonald's per se as a food retailer for such a reason." CWS [138] 303 It then submits, in apparent contradiction of that proposition, that objectors' concerns about health impacts of McDonald's should be given significant weight as an aspect of the public interest and social impact. It submits that the linking of adverse health outcomes with exposure to fast food offerings has an extensive and scientifically researched basis, referring to submissions from objectors, including doctors, to which were attached various papers on the subject. The Council described the concerns as specific, concrete, likely effects of the proposed development, citing Lloyd J New Century Developments Pty Ltd v Baulkham Hills Shire Council (2003) 127 LGERA 303; [2003] NSWLEC 154 at [61] - [63]. 304 The Council did not lead any expert evidence in support of this submission, nor is it in fact a contention in the case. Whilst an objector may be qualified to give an opinion about a concern about a proposed development it is not expert evidence for the purposes of proceedings before the Court. That is because there are strict rules to be observed in order for evidence to be considered as expert evidence, including the adoption of the Expert Witness Code of Conduct and the likely engagement in the expert conclave process before ultimately providing a joint report and giving oral evidence. 305 That does not mean that submissions from objectors are to be lightly dismissed and I do not do so. But it is a difficult proposition to maintain that this development should be dismissed because the food offering is McDonald's. 306 The scope of the public interest was considered by the Court of Appeal in Warkworth Mining Limited v Bulga Milbrodale Progress Association Inc (2014) 86 NSWLR 527; [2014] NSWCA 105. The Court (comprised by Bathurst CJ, Beazley P and Tobias AJA) said at [299]: "A requirement that regard be had to the public interest operates at a high level of generality. What is involved in the determination of the public interest in a given statutory context was explained in O'Sullivan v Farrer [1989] HCA 61; 168 CLR 210 at 216 where the High Court stated: "[T]he expression 'in the public interest', when used in a statute, classically imports a discretionary value judgment to be made by reference to undefined factual matters, confined only 'in so far as the subject matter and the scope and purpose of the statutory enactments may enable ... given reasons to be [pronounced] definitely extraneous to any objects the legislature could have had in view'." (citation omitted) ……. As observed in The Pilbara Infrastructure Pty Ltd v Australian Competition Tribunal [2012] HCA 36; 246 CLR 379 (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ) at [42], the range of matters relevant to the public interest is very wide." 307 Dixon J pointed out in Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492; [1947] HCA 21 at 505, that when a discretionary power of this kind is given, the power is "neither arbitrary nor completely unlimited". 308 The public interest is limited by the objects, scope and purpose of the EP&A Act, which are indeed very broad. The Council did not however point the Court to the particular object of the EP&A Act within which the proposition of significant weight being given to an unhealthy outcome from the business a specific purveyor of fast food would be found. I do not accept that the concerns about McDonald's as the proposed fast food outlet is an aspect of the public interest. 309 It was also submitted that the proposition could be considered as an aspect of the social impact of the development. I have some doubt about that, and there was no expert evidence called by the Council by a social planner about the social impacts which may flow. 310 Be that as it may, there is insufficient evidence to conclude that the development application should be refused because of what is said to be the relative un-healthiness of the food offered by McDonald's and the adverse effects of exposure to fast food on children's health outcomes for the following reasons: • There is no expert evidence in support of the general proposition. • There is no expert evidence as to the role that this particular McDonald's would play if there was the potential for the adverse effects. That is, will its presence in this location cause greater consumption of fast food, when it is available at many other locations including in Dapto, 10 minutes' drive away. Is the demographic of Wongawilli more or less susceptible to the consumption of McDonald's offering? Is it the existence of the restaurant the driver for consumption, compared to advertising and the like? • There is no comparative expert evidence. For example, is the McDonald's offering better or worse than a fish and chip shop, or a pizza shop, a kebab store or some other form of burger establishment? 311 In the absence of such expert evidence, if health impacts were a relevant consideration, then I would not refuse the application. 312 That is not to say that I have not taken into account the submissions which have been made on the subject matter. It just means that in the circumstances I have determined that they attract less weight than the Council has submitted an[d] do not warrant refusal.

[44]

Consideration

At this point, it is appropriate to repeat the terms of subground 2.3. It reads: Further, and in the alternative, despite there being ample evidence (and the evidence only that) the McDonald's restaurant did not comprise healthy food retailing, which evidence was accepted (Judgment at [305]), the Commissioner failed to consider this evidence in the context of clause 3.7.4 of the WDCP.
it is also appropriate to repeat cl 3.7.4 of ch B4 of the DCP, given the nature of the complaint embodied in this subground. The provision is in the following terms: 3.7.4 Any new retail development within any of the village centre shall be limited to retailing activities and services which provide for the daily convenience needs of the surrounding residential community, especially healthy food and grocery retailing. This may include small supermarkets/retail grocery stores, butcher shops, fruit and vegetable retailers, bakeries, newsagents, hairdressing salons, dry cleaning shops etc.
As can be seen, the provision uses the words "especially healthy food and grocery retailing" (emphasis added by me) - not the word "exclusively".
The Acting Commissioner dealt with the potential utility of the 600 square metres of retail tenancies to be provided in the south‑eastern corner of the site. The adequacy of that has already been addressed in this decision.
There will be nothing in the offering of tenancies in those spaces that would preclude any of the retailing opportunities listed in cl 3.7.4 being taken up for such purposes. It is to be assumed that, when assessing development applications for such tenancies, the Council will have regard to this clause.
To the extent that the requirement for consideration of healthy food issues is called up by the clause, that which has been extracted above from the portion of the Acting Commissioner's decision addressing the public interest makes it perfectly clear that he was aware of, and had regard to, the concept of healthy food in the context of the McDonald's restaurant.
The Council now complains as it does not agree with the conclusion which the Acting Commissioner reached on this point (as a result of what appears to be the Damascene conversion described by the Acting Commissioner in paragraphs [302] and [303] of the above extracted portion of his decision).
Although the Council does not like the conclusion that the Acting Commissioner reached on this point, there can be no doubt that the Acting Commissioner more than adequately considered all relevant submissions on this point and comprehensively explained why he did not accept them as a basis to reject the McDonald's restaurant.
This subground also fails.

[46]

Introduction

Some elements of the amendments to pedestrian access and circulation arose as matters of controversy in the hearing before the Acting Commissioner.
In his first decision, the Acting Commissioner summarised how he might respond to these concerns, at [320], in the following terms: 320 In summary, for the foregoing reasons: (1) The access points, communal areas and pedestrian/cycle paths and related infrastructure are not acceptable. (2) If it is within power to impose conditions or otherwise to ensure that the access points, communal areas and pedestrian/cycle paths and related infrastructure are acceptable then I would not approve the child care centre, including its parking so as to facilitate those changes. (3) I would not approve the subdivision, because it is proposed as a consequence of the approval of each built form of the proposed development.
In this regard, matters earlier set out relating to the Acting Commissioner's suggestions, at [297] of his first decision, are relevant to this ground as the Company responded to them by revisions to the site plan earlier noted. In substance, the relevant design amendments were: 1. A second pedestrian access point from the riparian zone was created at a location significantly further toward the signalised intersection. As a consequence of this amendment, relevantly, the pedestrian path across the access‑egress road within the site incorporated a raised pedestrian crossing; 2. A new raised pedestrian crossing was incorporated across the mouth of the access to the drive‑through service facility at the north‑eastern corner of the McDonald's restaurant building. This raised pedestrian crossing will provide access from the restaurant to the plaza and the adjacent building containing the four 150‑square‑metre retail tenancies approved for the south‑eastern corner of the site.
In his second decision, given on 8 December 2021, the Acting Commissioner addressed the concerns raised by the Council regarding the two new raised pedestrian crossings, doing so at [25] to [37], in the following terms: 25 The Council points to two changes to be proposed by condition which it says need to be, and have not been, assessed. 26 As to the southern raised walkway from the riparian area, the Council submits that its impacts need to be assessed because there are likely impacts. It first points to the potential for queuing of traffic entering the site and the consequential effect on the signalised intersection with West Dapto Road. 27 A crossing at that location was always proposed and the only change is that there is a raised crossing which has the effect of prioritising pedestrian movement across the driveway. The Council submission assumes that there will be sufficient slowing of traffic giving way to pedestrians crossing with the benefit of a marked and raised crossing that there will be a queuing of vehicles and a disruption to the signalised intersection. 28 I do not agree. First, the vehicles in that location, some 30m from the entrance are moving slowly in any event (Rogers, Traffic joint report at [9]). The degree of further slowing, whilst enabling the evident prioritisation of pedestrian movement will only be marginal. It is the obligation of motorists in any event to give way to pedestrians and common sense suggests that motorists in this location would be slowing further for any crossing pedestrians in any event. The raised crossing makes it clear and obvious that pedestrians are prioritised. 29 Second, the number of pedestrians utilising that crossing is going to be comparatively low. It is not at any time likely to be a steady or constant stream of pedestrians which will cause such a disruption to movement of vehicles as to create difficulties at the intersection. 30 Third, as the Applicant submitted, there was no evidence at the hearing that what was proposed with the crossing at that time created an issue at the intersection. The effect of the raised crossing is marginal and will have no measurable additional impact. 31 Fourth, as Mr Rogers said in his expert traffic evidence, without demur from Mr McLaren, the phasing of the lights at the intersection will be required to take into account pedestrian movement. The phasing will ultimately be determined by Transport for NSW after consideration of all traffic and pedestrian movements related to, or having an impact on, the intersection. 32 I do not accept that a new merit issue is raised by the requirement that the existing crossing some 30m from the entrance be a raised crossing in order to make it clear and obvious that pedestrians have priority. 33 Next the Council submits there may be a safety issue with vehicles needing to reverse over the raised walkway when entering or leaving a car space. I do not understand how this can be the case. The reversing movement is unchanged in itself, but vehicles leaving or entering the two adjacent parking spaces may need to go over the "hump" during the course of than manoeuvre. 34 I do not regard this as a reason for refusal. It is not absolutely necessary for the vehicles to manoeuvre over the "hump" as they can enter and leave the spaces without doing so. And such "humps" are not uncommon in parking areas and will regularly be negotiated by motorists if required. There is not an additional safety issue which needs assessment. 35 The Council also submits that there is an unassessed safety question with the new crossing from the McDonald's building to the south-east plaza. I reject that submission: • The possibility of such an access was raised by the Court with the urban design experts during the hearing and it was addressed by both experts. The Council did not suggest that a safety issue would arise if such access was provided. • The proposed access is a raised walkway of the type which the Council's traffic expert described: "It's a raised platform that has priority to pedestrians, so it's actually - it's more than just a speed hump, it's actually quite a good device for managing traffic at the interface with pedestrians, yeah." Tcpt 27 July 2021 p 97(17-19) (See first judgment at paragraph [158] The raised walkway proposed to link McDonald's and the plaza self-evidently will operate to manage the interface with pedestrians and give priority to pedestrians. There is no basis to consider there is an unassessed safety issue. 36 For the reasons I set above in dealing with the Council's first submission, I do not accept that the further appropriate development of the site is foreclosed by granting consent in the manner proposed by the Applicant. 37 The Council's final argument is predicated on the assumption that further evidence is required. For the reasons I have articulated no further evidence is required. The submission is rejected.
The Acting Commissioner's acceptance of these design changes as resolving his concerns, and thus providing a basis for granting consent, is the foundation for Ground 3.

[47]

The Council's written submissions on Ground 3

The written submissions for the Council on Ground 3 were (footnotes omitted): Ground 3 - no evidence of, and failure to consider likely impacts of changed aspects of the development; no evidence 1. As set out in paragraph 3.1 of the Summons, the Acting Commissioner found that the access points to the development, the proposed communal areas and the pedestrian/cycle parts and related infrastructure were unacceptable. 2. As set out in paragraph 8 above, McDonald's proposed a revised plan that included raised pedestrian crossings near the entry to the Site from West Dapto Road and across the dual lane drive through between the proposed McDonald's food and drink premises and Plaza. 3. The Acting Commissioner noted that Council made submissions "As to the southern raised walkway from the riparian area… that its impacts need to be assessed because there are likely impacts. It first points to the potential for queueing of traffic entering the site and the consequential effect on the signalised intersection with West Dapto Road". The Acting Commissioner found: (a) "The degree of further slowing, whilst enabling the evident prioritisation of pedestrian movement will only be marginal." (b) "…the number of pedestrians utilising that crossing is going to be comparatively low." (c) "The effect of the raised crossing is marginal and will have no measurable additional impact." 4. However, there was no evidence for any of these findings. The evidence of the traffic experts, both in the joint reports and their oral evidence, simply did not deal with such implications because neither the raised pedestrian prioritised walkways nor the extra access point from the southern end of the riparian zone (which connects pedestrians to the southern raised pedestrian prioritised walkway) were, at the time, proposed. No further written or oral evidence accompanied McDonald's submissions about these new aspects of development in response to the Acting Commissioner's invitation. 5. The Acting Commissioner also noted that Council submitted: "…there may be a safety issue with vehicles needing to reverse over the raised walkway when entering or leaving a car space…". The Acting Commissioner found (again in the absence of evidence): (a) "…The reversing movement is unchanged in itself, but vehicles leaving or entering the two adjacent parking spaces may need to go over the "hump" during the course of than manoeuvre." (b) "It is not absolutely necessary for the vehicles to manoeuvre over the "hump" as they can enter and leave the spaces without doing so. And such "humps" are not uncommon in parking areas and will regularly be negotiated by motorists if required." 6. In rejecting Council's submission regarding the safety question raised by the new pedestrian prioritised crossing between the McDonald's and Plaza, the Acting Commissioner concluded (in the absence of evidence): "The raised walkway proposed to link McDonald's and the plaza self- evidently will operate to manage the interface with pedestrians and give priority to pedestrians." 7. In Judgment No 2, at paragraph [35], the Acting Commissioner made a reference to a comment in oral evidence by Council's traffic expert in respect of raised pedestrian crossings. However, that comment by Council's traffic expert was not made in relation to the proposed new raised pedestrian crossings shown in new plan drawing SK01 Issue D (the evidence was prior to any raised crossings in the location proposed), and rather was a general comment to explain what a raised pedestrian crossing is. The exchange was as follows: GALLASSO: But I just want to ask you, in terms of the practical operation of the car park, as I said, leave the child care centre aside, which is to the north, and that - while we're on it, where it says "Raised bollard", as I understand it, and correct me if I am wrong, it is, effectively, a speed hump that you would go over to get into that car park, isn't it? WITNESS MCLAREN: It's a raised platform that has priority to pedestrians, so it's actually - it's more than just a speed hump; it's actually quite a good device for managing traffic at the interface with pedestrians, yeah. 8. The area being referred to was the "proposed pathway between the child care centre parking and the larger area". Council's traffic expert was not considering, and did not provide any evidence about potential impacts (including the potential for the new raised pedestrian crossings to cause queueing of traffic thereby impacting on the nearby intersection or to cause safety issues for pedestrians navigating a dual lane drive‑through to move between desire lines). 9. To the extent the Acting Commissioner's conclusion at paragraph [35] of Judgement No 2 might be understood as being informed by this evidence, the context in which the general comment was given shows it was not open for the Acting Commissioner to use this comment as evidence of the impacts (or absence of impacts) of raised crossings on queuing or pedestrian safety. 10. Council's traffic expert did however say, in respect of the proposed drive‑through, "Well, it's certainly close to the intersection and it needs no [sic], obviously, be away from the queueing effects of the signals, and I guess it's a matter of then how you deal with the pedestrian focal point." This comment by Council's traffic expert highlights the need for expert consideration of both queueing impacts and how best to deal with pedestrians in any particular location. 11. In referring to the potential impact of the raised pedestrian crossing on the nearby intersection, the Acting Commissioner stated: "…the phasing of the lights at the intersection will be required to take into account pedestrian movement. The phasing will ultimately be determined by Transport for NSW after consideration of all traffic and pedestrian movements related to, or having an impact on, the intersection." Curiously, and contrary to the requirements under section 4.15(1)(b) of the EPA Act, the Acting Commissioner's approach appears to have been that it is for Transport for NSW to consider the impacts of raised pedestrian crossings rather than for the Acting Commissioner to consider those impacts in light of evidence about what those impacts might be. Such an approach would clearly be an impermissible deferral of determination of a significant issue. 12. There was no evidence before the Acting Commissioner to support any of the findings set out in paragraphs 41 to 44 above, and the Acting Commissioner failed to properly satisfy the requirement in section 4.15(1)(b) of the EPA Act to consider all likely impacts of the proposed development. Ground 3 should be upheld.

[48]

The Company's written submissions on Ground 3

The Company's written submissions on Ground 3 were in the following terms: 4 Ground 3 4.1 Ground 3, as particularised in the Summons, asserts that the Acting Commissioner failed to consider the likely impacts of changes to the proposed development contrary to s 4.15(1)(b) of the EP&A Act. 4.2 McDonald's submits that no error of law is raised. Rather, this ground is concerned only with merit considerations which are outside the purview of these appeal proceedings. 4.3 The Council does not dispute the power of the Acting Commissioner under s 4.16(4) and s 4.17(1)(g) of the EP&A Act to make the orders which were made on 17 December 2021. That being the case the only remaining question is whether the condition-making power exercised by the Court was within power. It clearly was. 4.4 As articulated in McDonald's written submissions filed on 25 November 2021, in the scheme of the overall development the measures identified by the Court for the provision of acceptable access points, communal areas and pedestrian/cycle paths were relatively minor aspects. With a view to implementing those measures as conditions of consent, McDonald's filed draft Short Minutes of Order on 23 November 2021 which gave effect to the Acting Commissioner's findings through the terms of the Orders and proposed conditions. 4.5 McDonald's made detailed oral and written submissions to the Court concerning the merit impacts of the proposed changes by reference to the expert evidence adduced during the substantive proceedings - noting that the findings of the Court in fact arose from, and was informed by, the Court's assessment of that expert evidence in the circumstances of the site and the proposed development. 4.6 Whilst Council asserted in its oral submissions during the hearing before the Acting Commissioner that the changed development would have adverse impacts, Council did not substantiate those submissions with any evidence and nor did it, at the time, ask for the opportunity to adduce such evidence. 4.7 Accordingly, the Council's assertion that the Acting Commissioner failed to consider the likely impacts are bare assertions which cannot be raised, nor sustained, in this appeal. 4.8 Firstly, as set out in Tanious v Georges River Council, Pepper J relevantly stated: An error will not be material to the decision if the matter complained of on appeal was a matter that was not the subject of submissions made to the Commissioner below in a way that called for a reasoned consideration of that matter (Housing Commissioner of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWL 378 at 385-386 and Davis v Gosford City Council [2013] NSWLEC 49 at [75]). A party is bound by the way it conducted its case at the hearing (Bankstown City Council v Mohamad El Dana [2009] NSWLEC 68 at [47]-[55] and Davis at [75]-[77]). 4.9 Secondly, it is clear from the second judgment of the Acting Commissioner that, having regard to the submissions of the parties and the original expert evidence that was before him, he did not consider there to be any adverse impacts arising from the changed development. The Acting Commissioner's specific consideration of these matters is reflected at [41] and [43] of the Council's written submissions filed for the purposes of this appeal. 4.10 Accordingly, there was sufficient evidence available to the Acting Commissioner in respect of the likely impacts of the changed aspects of the development. 4.11 To the extent that this ground is advanced on a "no evidence" basis, it is important to note that the content of the ground was recently addressed in Minister for Immigration v Viane. In that case six members of the High Court articulated and explained the ground in terms of a finding being made as based on some evidence or other supporting material, rather than no evidence or no material, unless the finding is made in accordance with personal or specialised knowledge or by reference to that which is commonly known. The reference to "no evidence" has traditionally meant "not a skerrick of evidence" (per Keane, Gordon, Edelman, Steward and Gleeson JJ at [17]). As set out above, the position adopted by the Court was arrived at following the consideration of the traffic evidence and was not a position that can in any way be said to have been arrived at without a skerrick of evidence. 4.12 Quite aside from the consideration set out in Viane above concerning personal or specialised knowledge or by reference to that which is commonly known, in any event Commissioners of the Court are not bound by the rules of evidence and are entitled to rely upon their own knowledge and experience to the resolution of the issues in dispute. 4.13 For these reasons, Ground 3 of the Summons should be dismissed.

[49]

The Council's written reply submissions on Ground 3

The Council's written reply submissions on Ground 3 were in the following terms: Ground 3 7. Essentially, the ROS seeks to defend this ground on the following propositions: (a) the Acting Commissioner made findings based on expert evidence relating to impacts; (b) Council cannot complain about an absence of evidence on impacts in circumstances where Council failed to adduce its own evidence on impacts; and (c) the Acting Commissioner was entitled to rely on his own knowledge. 8. As to the last matter, nowhere did the Acting Commissioner suggest that he relied on his own knowledge in respect of the impacts arising from the changes to the raised pedestrian pathways. Had he done so, without notice to the parties, a different error of law (a denial of procedural fairness) would have occurred. 9. On the contrary, the Acting Commissioner made it clear that he relied on certain oral evidence by Council's traffic expert in respect of raised pedestrian pathways. This evidence was given on day 2 of the hearing, on 27 July 2021. The evidence was about the effectiveness, in terms of pedestrian safety, of the raised pathway separating the parking area of the child care centre from the remainder of the village centre parking, and was not concerned with traffic impacts. It was also distant from the later proposed raised pathways near the entry to the site and between the McDonald's premises and Plaza. The evidence predated the findings regarding pedestrian and cycle use set out in Judgement 1 and the subsequent creation of Drawing SK01 D on 21 November 2021. The expert evidence did not, and could not, go to impacts associated with an arrangement not the subject of that evidence, in a different location, and a plan that was not yet in existence at the time the evidence was given. It was not open for the Acting Commissioner to use this evidence in respect of the raised pathways later proposed. 10. At paragraph 4.6 of the ROS the Respondent says Council asserted "the changed development would have adverse impacts" but did not adduce evidence. This is not entirely accurate. Council's principal submission was that the changes would have unassessed impacts. In its written submissions dated 23 November 2021, Council stated: …two of the specific changes identified by the Court in its Judgment have not been assessed for their implications. These are the southern raised walkway from the riparian area, and the raised walkway connection from the McDonalds building to the expanded plaza. 11. The Respondent (as applicant for development consent) always bore a persuasive onus to demonstrate impacts were acceptable. The Acting Commissioner had no evidence to assess the impacts of these raised walkways, and no proper basis to determine these matters.

[50]

Mr To's oral submissions on Ground 3

Mr To commenced his submissions concerning Ground 3 by taking me to the way in which the Acting Commissioner had set out, in his first decision, the deficiencies in the pedestrian arrangements proposed for the development and noted that, in [297] of that decision, the Acting Commissioner had suggested changes to address them.
Mr To then described the steps that occurred subsequently, leading up to the Acting Commissioner's further hearing on 26 November 2021, the hearing which gave rise to his second decision.
The focus of Ground 3, Mr To observed, was that: 1. Two of the changes (being changes to pedestrian walkways) had not been assessed by the Council. None of the changes had been made available for public submissions; and 2. The impact on queuing to enter the site had also not been addressed.
Mr To continued taking me through the detail of what the Acting Commissioner set out in his second decision concerning the changes to pedestrian movements within the site by the relocation of an access ramp from the riparian zone further to the south (on the western side of the site) and the associated incorporation of a raised pedestrian crossing at this point where there had formerly been a crossing at grade. He also took me to the new raised pedestrian crossing linking the McDonald's restaurant with the plaza adjacent to the retail tenancies, with this raised pedestrian crossing traversing the entrance to the drive‑through element of the McDonald's restaurant.
Mr To continued his submissions by pointing to the proposition that the "no evidence" ground is not one to be understood literally but is one addressing the possibility that there might be no probative evidence to support the conclusion rather than merely no evidence at all (citing Wang v Australian Securities and Investments Commission [2019] FCA 1178) (Wang)). In these circumstances, Mr To submitted that this more circumscribed position was relevant to the new raised pedestrian crossing across the entrance point to the drive‑through facility.
In this context, he took me to the joint traffic experts report in which Mr Rogers, the Company's traffic expert, had explained why the raised pedestrian crossing, between what had then been the proposed childcare centre parking area and the parking area of the McDonald's restaurant, was not a problem. Mr McLaren, the Council's traffic expert, accepted that this was an appropriate resolution of safety matters at that location. Mr To pointed to the fact that this was not evidence addressing safety in the context of the drive‑through facility. He next took me to a further passage in the joint traffic and parking report concerning the nature of the traffic flow at that raised pathway between the two car‑parks as originally proposed.
Mr To then took me through the oral evidence of the traffic experts relevant to this concern raised by the Council.
Mr To next expressly referenced the passage relied upon by the Acting Commissioner in [35] of his second decision (which was the basis for the Acting Commissioner concluding that this crossing did not constitute an unassessed safety issue). Mr To submitted, with respect to this passage, (Transcript 30 May 2022, page 40, lines 27 to 32): To place it in its proper context, there's a passage of questioning about the reduction in car parking of the childcare centre. There's a sideways reference, in my submission, to this central raised crossing. No questions specifically about safety or otherwise. And Mr McLaren volunteering gratuitously, as it were, it's a good device about which there was no issue because they had agreed it in the joint report.
At this point, I had an exchange with Mr To concerning this, an exchange which I do not here set out, but an exchange which does require being addressed in my consideration of this matter.
Mr To then explained, by citing a number of transcript pages, that Mr Rogers had not given any evidence concerning raised pedestrian crossings which could be regarded as being any general evidence on this point.
Mr To then took me through the evidence given by Mr Rogers concerning the potential for queueing when entering the proposed development and being held up by people using the raised pedestrian crossing between the McDonald's restaurant and the access way from the riparian zone.
He pointed to the fact that the Acting Commissioner had addressed this at [31] of his second decision (earlier set out), where the Acting Commissioner concluded that this would necessarily be taken into account by the relevant transport authorities when determining the phasing of the traffic lights controlling, amongst other things, access to and egress from the driveway into the development. In this regard, Mr To submitted (Transcript 30 May 2022, page 43, lines 24 to 34): As I said earlier in reference to para 31 of the commissioner's judgment, the fact that Transport might have to determine the phasing is no answer to the point that there may be impacts. What the commissioner is saying is if they're impacts, well, Transport has to deal with it, but that's not an answer to addressing what those impacts and assessing what those impacts might be. They may well be adverse and unacceptable, but there was just simply no probative evidence about that. That's the ambit of the third ground of appeal, your Honour. We've already dealt with ground 4 at the commencement of the hearing. For those reasons you would find the commissioner erred in the manner identified in grounds 1 and 2 and/or ground 3.
The remainder of his primary submissions involved an exchange with me about process matters that do not require to be noted.

[51]

Mr Galasso's oral submissions on Ground 3

Mr Galasso then turned to address Ground 3, advancing the primary proposition that this constituted purely a factual complaint rather than a question of law. Mr Galasso then moved to describe the nature of the matters that were the subject of this ground and to explain how, from the Acting Commissioner's first decision, these changes were responsive to matters which the Commissioner had raised at [297]. In particular, Mr Galasso noted that the raised pedestrian crossing at the entrance to the drive‑through element of the McDonald's restaurant was responsive to the Acting Commissioner's conclusion that several parking spaces had needed to be deleted from the original proposal in order to increase the passive recreation space in the plaza outside the 600 square metres of retail tenancies.
Mr Galasso then noted (Transcript 7 June 2022, page 7, lines 32 to 35): Now, they were raised because, on the evidence before the Court, the raised walkway was a mechanism accepted by the council's expert, Mr McLaren, as being an appropriate way to deal with a circumstance of an interface between a pedestrian and car traffic.
Mr Galasso next pointed out that there were two other raised crossings that had been on the original development proposal. One was that between the proposed childcare centre's parking area and the McDonald's parking area and the other one was at the pedestrian crossing near the payment bay on the McDonald's drive‑through facility. Mr Galasso pointed to the fact that the Council had raised no objection to the latter of these two crossings which, he submitted, was analogous to that approved across the mouth of the drive‑through facility.
Mr Galasso then turned to the evidence given by Mr Rogers concerning how Transport for New South Wales would need to address the phasing of the operation of the traffic lights in order to deal with pedestrian movements - propositions, he pointed out, that were not disagreed with by Mr McLaren.
Mr Galasso then took me through the submissions that were made on behalf of the Council in the hearing on 26 November 2021 and the way the Acting Commissioner had set them out in his second decision and had addressed those in his second decision - concluding that there was no reason why he had any concerns about the raised pedestrian crossings.
After a discussion I had with Mr Galasso concerning the revised ramp from the riparian zone, Mr Galasso noted that there was no complaint raised by the Council in Ground 3 alleging procedural unfairness, merely a complaint of "no evidence".
Mr Galasso then noted that the Company's written submissions had referred to the High Court's judgment in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41 (Viane) and noted that the "no evidence" rule is traditionally concerned with not a skerrick of evidence.
Mr Galasso submitted that there was a significant amount of evidence on the matters raised in Ground 3. Mr Galasso submitted, concerning an exchange I had had with Mr To on this point (the exchange is reproduced in full later) (Transcript 7 June 2022, page 12, lines 13 to 23): After all, but for Mr McLaren's evidence about the raised crossing, it's questionable whether the Commissioner would have thought of it himself, if that makes any sense, that is it's always sourced in the expert evidence. And my friend constantly said on interrogation by your Honour, "How do you say that's not a skerrick of evidence", and the answer was consistently, "It's not probative evidence". He has never told your Honour what that means, and can I say, in circumstances where there's clear evidence from a traffic expert about that medium, that is a raised crossing and its appropriateness, it is impossible to say that there's no evidence or no probative evidence, and in our respectful submission, your Honour would reject that.
He then advised me, responding to a question I had earlier asked him, that the plan showing the revised, raised pedestrian facilities was filed and served on 22 November, a little prior to the second hearing on 26 November 2021.

[52]

Mr To's reply submissions on Ground 3

It is convenient to set out Mr To's opening observations on Ground 3 as providing a summary of how the Council relied upon it (Transcript 9 June 2022, page 17, lines 15 to 28): What I want to draw attention to by way of reply is three things. Firstly, the issue of the raised walkways, the extra raised walkways on either side of McDonald's, came out of not the traffic evidence, effectively, but the urban design evidence, and that took place after the traffic evidence had been completed. As I took you to in chief, there was very little attention on any topic of the traffic and its interaction with the pedestrians, other than that side comment from Mr McLaren that said it's a good device in the context of a passage of examination that really examined can the parking be reduced and more room freed up. That passage, your Honour, is of course relied upon quite heavily, both by the Commissioner in his second judgment and on appeal by the respondent, but that has to be seen in the context in which it was given, which is why we had made the submission that that evidence is not probative relevant to the matters that the Commissioner was then invited to further consider by addition to the development.
Mr To then took me to elements of Mr Galasso's cross‑examination of Mr McLaren that Mr To submitted were relevant to my understanding of how this matter had evolved in the evidence given concerning traffic and parking matters. He submitted that these references were the totality of the relevant traffic evidence dealing with the issue of pedestrian crossings in the vicinity of the McDonald's drive‑through facility.
Mr To then turned to take me through the elements of the transcript before the Acting Commissioner where these pedestrian movement issues had been addressed during the concurrent evidence of the urban designers. He proposed that the matters to which he had taken me were the entirety of the matters raised before the Acting Commissioner in the primary hearing addressing questions of safety.
It is now appropriate to reproduce the next portion of Mr To's submissions in their entirety (Transcript 9 June 2022, page 19, lines 15 to 37): It's been submitted by Mr Galasso earlier, particularly on Tuesday, that there was no application ever made by the council to adduce further evidence; my submission in response to that is that was really no occasion to do that. We weren't in a situation where the applicant was coming along and saying, "I'd like to amend my proposal, and these are the ways I'll do it", in which chase there may have been a reopening application and an application to adduce evidence. This came in the form of an application framed as final disposition of the appeal by way of short minutes, and changes affected by a condition, and when you come back to the principal submission that the council made to the Commissioner, it was this is not an appropriate way of doing it because this topic hasn't been looked at, and there are potential implications; it wasn't a positive assertion that there are definitely unacceptable impacts, it was also not a suggestion of here's the evidence for it, that was just not the context in which this was being raised. It was, as it is now, simply consider the evidence that you have, it doesn't touch on this point, it never did, and that's why it made it inappropriate to adopt the course that was being urged on the Court. That hasn't really altered, the evidence was what the evidence was, and whilst it's a relatively high bar that we have to surmount to identify that there was no probative evidence, that is indeed what the evidence does establish, in my submission.
I reproduce this passage as it appears to constitute not only a "no probative evidence" submission, but also a hint of "denial of procedural fairness" submission, a matter not sounded in the pleadings to Ground 3.
There was then an exchange between me and Mr To concerning how the Acting Commissioner had raised, in [297] of his first decision, matters which had led to these raised pedestrian crossing elements being incorporated in the design to which the Acting Commissioner gave approval. It is, on this point, appropriate to set out what Mr To said further concerning this (Transcript 9 June 2022, page 20, lines 19 to 26): There was no further hearing with respect to the merits or otherwise of those items nominated in 297, that's just not procedurally how this part of the proceedings went after the first judgment. I accept, your Honour, if it was I'll make some findings, someone comes along with an amendment and there's an opportunity to then address and consider the amendment, including by evidence if there is an application, that aspect of this appeal would likely not be brought, but that's just not the way it was conducted.
This aspect of his submissions, it seems to me, also appears to raise procedural fairness issues not sounded in the pleadings on Ground 3.
Mr To concluded by summarising the Council's position on Ground 3 (Transcript 9 June 2022, page 20, lines 30 to 34) in the following terms: So for those reasons, your Honour would be satisfied, in terms of ground 3, that the evidence didn't relevantly, that is to say in a probative way, provide the basis for the Commissioner to determine the course that he did, with the result that the determinations in the second judgment about safety and otherwise were made without relevant evidence.

[55]

The changes to pedestrian access

Amongst the changes made to the form of the Company's proposed development as arising following the Acting Commissioner's first decision, the Company had incorporated an additional pedestrian access from the riparian zone at a location toward the south‑western corner of the site. This had been accompanied by the insertion of an additional raised pedestrian crossing traversing the driveway providing access to, and egress from, the site. As also earlier noted, a second new raised pedestrian crossing was provided to link the McDonald's restaurant to the commercial tenancies, with this crossing located at the mouth to the drive‑through service element of the proposal.
These can clearly be seen on the marked‑up plan reproduced earlier at [12].
As earlier noted, expert traffic and parking evidence had been before the Acting Commissioner and the relevant experts, Mr Rogers and Mr McLaren, had also given oral evidence during the course of the hearing.
On the question of raised pedestrian crossings (although given in the context of the proposed raised pedestrian crossing in the original development plans across the vehicle path linking the parking for the proposed childcare centre and that proposed for the McDonald's restaurant and the retail spaces), Mr McLaren said, in his oral evidence before the Acting Commissioner (Transcript 27 July 2021, page 97, lines 17 to 19 - also set out by the Acting Commissioner at [158] of his first decision and repeated at [35] of his second decision): "It's a raised platform that has priority to pedestrians, so it's actually - it's more than just a speed hump, it's actually quite a good device for managing traffic at the interface with pedestrians, yeah."
During the course of the hearing before me, Mr To submitted that this evidence should be regarded as being confined to the specific pedestrian crossing about which Mr McLaren was then being questioned by Mr Galasso.
I then had an exchange with Mr To as to how, for the purposes of matters now pressed by the Council in this appeal, I should regard the above transcript extract. This exchange was in the following terms (Transcript 30 May 2022, page 40, line 22 to page 41, line 31): TO: … Then Mr McLaren answers from line 16 through to 19, "It's a raised...interface with pedestrians". Then Mr Galasso goes back to his questioning, which is, "But you don't...nature in practice". That passage of cross examination finishes at about line 35 on p 276. To place it in its proper context, there's a passage of questioning about the reduction in car parking of the childcare centre. There's a sideways reference, in my submission, to this central raised crossing. No questions specifically about safety or otherwise. And Mr McLaren volunteering gratuitously, as it were, it's a good device about which there was no issue because they had agreed it in the joint report. To finish off this part of it, your Honour, then in terms of the cross examination of Mr Rogers-- HIS HONOUR: The second half of Mr McLaren's observation commencing from the middle of line 18 to its conclusion at the end of line 19 is a general observation, is it not, rather than a precise and specific one to that location? TO: It is a generally expressed comment, but it is a comment that is directed to a specific location, because that's how the question was asked. HIS HONOUR: It is a proposition that is advanced as a general observation and not one that is specific to that location, is it not? TO: I agree with that, your Honour. Even said that way, it is not something that can be probative of a question of whether there is safety in a very different circumstance of putting a raised crossing across lines of traffic through a drive through facility. HIS HONOUR: Do you put to me that that, taken as said and applied as a general proposition with respect to raised pedestrian crossings, does not constitute even a scintilla of evidence with respect to raised pedestrian crossings? TO: I would say probative evidence, your Honour, rather than your Honour's … HIS HONOUR: A scintilla of probative evidence as to the general position with respect to raised pedestrian crossings. TO: It's not probative evidence of whether there would be or could be an adverse safety interaction by introduction of a raised crossing of the north eastern corner of the food and drink premises. I just need to give your Honour two more references that-- HIS HONOUR: No, I haven't finished with you yet. I appreciate I'm not cross examining you and you are not in the witness box. But if you had been, I would have been saying that's not a responsive answer, Mr To, wouldn't I? TO: Your Honour, I'm answering that-- HIS HONOUR: So I ask you again, do you say to me that that general comment is incapable of being construed as being a scintilla of evidence, probative evidence, as to safety issues of raised pedestrian crossings? TO: I do say that, your Honour, and for this reason: the generality of the comment means that it cannot rationally affect any question of safety assessed for a different location in a different set of circumstances because of its generality and because it can't rationally affect an assessment of safety in that very different circumstance, it is therefore not probative, and therefore I do answer that this evidence cannot be a scintilla of probative evidence. I say it's not probative evidence at all.

[56]

Conclusion on Ground 3

Mr Galasso, at 1.11 of his written submissions and his oral submissions on this ground, had cited the judgment of the High Court in Viane, where the Court said, at [17]: By "no evidence" this has traditionally meant "not a skerrick of evidence".
In Viane, their Honours cited (approvingly) the judgment of Weinberg J in Australian Retailers Association v Reserve Bank of Australia [2005] FCA 1707; (2005) 148 FCR 446 at 587, where, at 575, his Honour had in turn quoted Aronson, Dyer and Groves, Judicial Review of Administrative Action, 3rd ed (2004) at 239 as the basis for this proposition.
This ground is, as pleaded, a "no evidence" one.
However, Mr To had referenced the judgement of Bromwich J in Wang, at [68], where his Honour said: 68 Mr Wang correctly points out that the "no evidence" ground is not restricted to circumstances where there is, quite literally, no evidence at all. That is because a finding may constitute an error of law if there was no probative evidence to support it, so as to be no evidence in law at all: see Bruce v Cole (1998) 45 NSWLR 163 at 188-189 per Spigelman CJ (Mason P, Sheller and Powell JJA agreeing). It follows that the no evidence ground of review will not always be defeated by identifying a mere "skerrick" of evidence if it can be shown by the party asserting the "no evidence" ground not to have been also legally probative in making the finding in question. However that inquiry is one of capacity, not weight.
In this context, as can be seen in the earlier set out extract of my exchange with Mr To, he is taking the position that there was no relevantly "probative evidence" in the fashion set out in the above passage from Wang.
Although I may have erred in using the expression "scintilla" in my exchange with Mr To (in preference to "skerrick" as adopted by the High Court), I am satisfied that these two appellations are, in this context, to be regarded as interchangeable, perfect synonyms.
I am satisfied that the evidence given by Mr McLaren upon which the Acting Commissioner concluded that the two new raised pedestrian crossings were appropriate responses to his concern was evidence given in a general context and not in a specific one merely relating to a pathway traversing the roadway between the McDonald's car‑park and that the proposed car‑park for the (now abandoned) childcare centre.
The Acting Commissioner's identification of, and reliance on, this evidence from Mr McLaren was sufficiently probative for the purposes of addressing the matters pressed by the Council as now underpinning Ground 3.
Similarly, the Acting Commissioner was entitled to rely on the uncontested evidence of Mr Rogers (concerning the phasing of the traffic lights required to address pedestrian‑related issues at the entrance to the site) was sufficiently probative for the purposes of satisfying himself that those matters did not require to be addressed by him as they were subsequently to be addressed by the relevant external, non‑participating authority responsible for managing the phasing of the lights at that intersection.
The "no evidence" claim fails. As a consequence, Ground 3 also fails.