Young Industries Pty Ltd v Parramatta City Council

4. The Commissioner erred in law in denying the applicant natural justice in his adoption of the roll of the respondent was such as to deny to the applicant a fair hearing, by departing from the rules of procedural fairness by taking into account irrelevant considerations, namely evidence that is based on fear, concern and precedent without rational or justified foundation.

5. The Commissioner erred in law in not taking into consideration a relevant statutory instrument as required by the provisions of the Environmental Planning and Assessment Act s 79C(1)(iii).

6. The Commissioner erred in law by not taking into consideration a Strategy code and Strategy document as a circumstance of the case as required to by s 39(4) of the Land and Environment Court Act.

7. The Commissioner erred in that by giving weight to a draft local environmental plan the Commissioner did not take into consideration provisions of the draft local environmental plan that must be assessed when determining a development application.

8. The Commissioner erred in law by breaching the rules of procedural fairness. The Commissioner viewed the subject site from Duncan Place without the applicant being present. The Commissioner departed from the rules of procedural fairness between the 6 July and the 25 July 2000. The Commissioner and an employee of the firm Storey and Gough (solicitors for the respondent Council) entered into a conversation about the subject appeal in the absence of the applicant.

9. The Commissioner erred in law in making the following findings of fact which there was no evidence. Each of the following findings of fact for which there was no evidence infected the whole of the Commissioners reasoning.

The draft Parramatta Local Environmental Plan has been adopted by Council. Page 2 paragraph 6.

this will be defacto subdivision in that the site will appear to be divided into two parts and will indeed be so divided by the existence of a fence of the kind normally associated with a property boundary. Page 5 paragraph 25.

The site is located in an area shown on the relevant map as being subject to cl 38 which has the effect of prohibiting dual occupancy development. Page 2 paragraph 6.

Being one of the oldest cottages in the street and having been built by the subdivider of the estate, Charles Sonter. Page 5 paragraph 31.

the surrounding neighbors also objected to the new dwelling because it was out of character. Page 4 paragraph 19.

I have concluded that the applicant has failed to make out any of its grounds of appeal. My reasons for this conclusion are set out below in relation to each of the grounds of appeal.

Before setting out those reasons I mention that the applicant was represented (both at the hearing before the Commissioner and on appeal) by Mr Young, who apparently controls the company. No objection was raised to this course by the council and I make no further mention of it.

The gravamen of this ground of appeal is that the Commissioner erred in law by failing to find that the proposed development was exempt development.

Section 76(2) of the Environmental Planning and Assessment Act 1979 ("the EP&A Act") states that an environmental planning instrument may provide that development of a specified class or description that is of minimal environmental impact is exempt development. If development is exempt development, then, subject to qualifications presently irrelevant, the development may be carried out without the need for development consent.

Clause 12 of the Parramatta Local Environmental Plan 1993 (Dundas Ward) ("the 1993 LEP") provides that a dwelling-house of not more than two storeys in height may be erected upon land within zone 2(a) without the consent of the council. The site falls within zone 2(a) under the 1993 LEP.

Clause 9(2) of the 1993 LEP conventionally provides that, except as otherwise provided in the 1993 LEP, the purposes for which development may be carried out only with development consent and the purposes for which development is prohibited are specified in the relevant zoning table. In the zone 2(a) table, specified development is prohibited, and all other development is permissible with development consent. Development for the purpose of dwelling-houses or for the purpose of a dual occupancy dwelling are not prohibited, and hence may be carried out with development consent, subject, as cl 9(2) provides, to any other provision of the 1993 LEP.

Clause 6(1) of the 1993 LEP adopts the Environmental Planning and Assessment Model Provisions 1980 in which the expression "dwelling-house" is defined to mean "a building containing 1 but not more than 1 dwelling". The 1993 LEP itself defines the expression "dual occupancy dwelling" as meaning "a building or buildings consisting of 2 dwellings (whether or not attached) on one allotment of land".

The applicant's case is that, upon the proper application of the EP&A Act and the 1993 LEP, the proposed development upon the site should be characterised as a "dwelling-house" and that, accordingly, cl 12 of the 1993 LEP takes effect to render the proposed development exempt development.

Such an argument requires the expressions "dwelling-house" and "dual occupancy dwelling" to be treated as being one and the same, so that development for the purpose of a dual occupancy dwelling is effectively development for the purpose of a dwelling-house, with the consequence that cl 12 takes effect. But, in my opinion, that is incorrect. The developments described by those expressions are distinct categories of development. That is evident from the definitions. A "dwelling-house" is a building containing one dwelling. A "dual occupancy dwelling" is a building or buildings consisting of two dwellings on one allotment of land. Support for that construction of the two expressions is to be found in their use in other parts of the 1993 LEP. For example, the zoning table in relation to the 2(b) zone treats both expressions as referring to separate categories of development by listing both of them separately as being development which is permissible with consent.

In my opinion the proposed development is properly characterised as being a dual occupancy dwelling. As the Commissioner found in his judgment, what was proposed were alterations and extensions to an existing house upon the site, and the erection of a new single storey detached dwelling on the rear part of the site. That description, in my opinion, best fits the definition of "dual occupancy dwelling". Accordingly, cl 12 of the 1993 LEP has no application, and the development for which consent was sought was not exempt development. The Commissioner did not err in law in not finding to the contrary, and this ground of appeal must fail.

Grounds 2 and 3 are interrelated. The applicant's contention is that the Commissioner erred in law by determining to refuse development consent because the proposed development was not consistent with one of the zone objectives, and this erroneous determination was based upon a misapplication of zone objective (b).

Clause 9(3) of the 1993 LEP provides that development consent must not be granted by the council (and, pursuant to the operation of the Land and Environment Court Act 1979, by the Court on appeal) unless the council is of the opinion that the carrying out of the development is "generally consistent with one or more" of the zone objectives. Three objectives are stipulated by the 1993 LEP in relation to the 2(a) zone. They are as follows: (a) to provide for low density residential development; and

(b) to preserve and enhance the character and amenity of established residential areas; and

(c) to provide for other types of development which are appropriately located in a residential zone and are of a scale and character compatible with existing residential development.

In par 5 of his judgment, the Commissioner identified objectives (a) and (b) as being relevant to the determination of the development application. He also identified, in par 13, three issues as arising in the proceedings, one of which was "[w]hether the proposal would be consistent with the existing and future character of the area".

Mr Young put these two grounds of appeal on three bases. First, he contended that objective (a) is the only objective which applies to the proposed development, and accordingly the Commissioner erred in law in applying instead objective (b). Second, he submitted that the Commissioner applied a subjective rather than an objective test to the issue of consistency with the zone objectives and accordingly erred in law. Third, this mistaken application of objective (b) led the Commissioner to err in law in determining to refuse development consent by reason of inconsistency with it.

As to the first basis, Mr Young submitted that each of the zone objectives applies to different uses of land, and they do not overlap or operate to veto each other. Thus, in his submission, objective (a) relates to the type of development which is proposed, that is, low density residential development. Objective (b) relates to development which has the benefit of existing use rights, that is, development that may be continued to be carried on despite its prohibition in the 1993 LEP. According to this submission, objective (b) governs development which is an intensification of an existing use or is a change of existing use which could affect adjoining residential areas. Hence the requirement for consistency with an objective that preserves and enhances the character and amenity of established residential areas. Objective (c) relates to other types of development which are not residential but are of low density in nature and which are permissible with consent. To support the proposition which he advanced, Mr Young pointed to cl 2 of the Parramatta City Council Development Control Plan - Dundas Ward ("the Dundas Ward DCP"), which sets out general principles for compatibility of proposed development with existing residential development. Mr Young could cite no authority for the proposition which he advanced.

I can find nothing in the 1993 LEP nor in the Dundas Ward DCP which would lend credence to such a proposition, and, in fact, it is contrary to authority. Clause 9(3) of the 1993 LEP certainly does not support it, because it requires consistency, not with just one of the objectives, but with one or more of them. If Mr Young's argument were correct, consistency with more than one zone objective would be impossible. That does not indicate some separation according to category of use. Furthermore, Fabcot Pty Ltd v Hawkesbury City Council (1997) 93 LGRA 373 is authority for the proposition that the objectives of a zone have no force and effect in relation to existing uses.

As to the second basis for these grounds of appeal, I can find nothing in cl 9(3) which indicates that any particular test is required to be applied, whether objective or subjective. What is required is a finding of fact as to whether or not the proposed development is generally consistent with one or more of the zone objectives.

The third basis for these grounds of appeal depend upon a finding that the Commissioner determined to refuse development consent on the ground that the proposed development was not consistent with objective (b). If that was the basis for the Commissioner's determination, then the Commissioner would have erred in law, because cl 9(3) requires the council to be satisfied that the proposed development is generally consistent with one or more of the zone objectives, and inconsistency of the proposed development with objective (b) does not require a conclusion of inconsistency with objectives (a) and (b). In other words, what is required is a finding that the proposed development is generally consistent with one or more objectives, not a finding that it is inconsistent with one of them.

However, a fair reading of the Commissioner's judgment discloses that he did not determine to refuse development consent on the ground that the proposed development was inconsistent with objective (b). Rather, he determined to refuse development consent on two different grounds; first, that the proposed development would not be consistent with the character generally of the area, and, second, that the proposed development would adversely impact upon the conservation area in which the site is located. The following parts of the Commissioner's judgment disclose his reasoning as to the first ground:

(a) He identified consistency with the existing and future character of the area as one of the three issues in the case (par 13 of the judgment): (b) In pars 17 to 23 he outlined the evidence which had been furnished in relation to the issue of character; (c) In pars 24 to 30, he set out his conclusion on this issue. In those paragraphs, he made the following findings of fact: i. He accepted that the site would appear to be subdivided into two parts each adapted for separate occupation, and he found that this indicated different character (par 25); ii. He found another indicator of different character to be "simply the fact of a dwelling in the back yard" (par 26); iii. He accepted the evidence of the council's consultant town planner, Mr D Jones, that the proposed development would be out of character "with what exists and with what is anticipated by the draft LEP" (par 27); iv. He did not accept that landscaping was a solution to the issue of character (pars 28 and 29).

In par 30 he expressed his ultimate conclusion upon the issue of character as follows: I therefore accept that the proposal would not be consistent with the objective of the 2(a) zone and the open landscaped back yard character of the locality would be infringed.

In par 41, the Commissioner summarised his reasons for determining to refuse development consent, including a statement that "… the impacts of the new dwelling at the rear in terms of character … are such that the proposal should not be approved".

Furthermore, this part of the Commissioner's judgment must be read having regard to the statutory context. The Commissioner noted the relevant instruments in pars 4 to 7. As Mr Tomasetti pointed out, objective (b) of the 1993 LEP was not the only relevant reference to character among these instruments. The character of the existing building and existing housing in the immediate area are raised on p 6 of the Parramatta City Council Code for Dual Occupancy Development ("the Dual Occupancy Code"). The issue is also broadly raised in cls 1.6(b), 2.1, and 2.2 of the Dundas Ward DCP.

I conclude, therefore, that the Commissioner did not determine to refuse development consent on the ground that the proposed development was not consistent with objective (b). He determined to refuse development consent on the more general ground that the proposed development was not consistent with the character of the area. In this context, objective (b) was a relevant consideration, and hence the Commissioner's reference to it in par 30. But par 30 also refers to infringement of the open landscaped back yard character of the locality. It therefore expresses the Commissioner's wider finding of inconsistency with the character generally of the area. Hence this ground of appeal must fail.

The gravamen of this ground of appeal is that the Commissioner was not neutral in his hearing of the case, and that he took into account irrelevant considerations.

In amplification of this ground of appeal, Mr Young made the following claims:

(a) The Commissioner "adopted the role of the council". This was demonstrated, according to Mr Young, during the cross-examination of Mr D Logan, a heritage consultant who gave evidence for the council, when the Commissioner made the following statement (T 158.40): But we're not so much concerned about the heritage significance of this block of land, we're concerned about the conservation area. Mr Young claimed that the Commissioner's stance in making this statement and specifically in using the word "we're" was exacerbated by the fact that, at the time it was made, the Commissioner had heard no evidence on behalf of the applicant.

(b) The Commissioner took into account irrelevant considerations. Thus, at par 31 of his judgment, he stated that "[t]he existing house on the site is not a heritage item", yet, according to Mr Young, the Commissioner attributed significant weight to the heritage significance of the house. (c) In quoting a lengthy passage from Mr Logan's report, the Commissioner took into account an undefined future aspect of the area, but failed to recognise that the proposed development did not have a heritage impact in itself. He decided the case, not on a "tangible" issue, but rather on "imaginary or visionary" issues for which there was no evidence, and s 79C of the EP&A Act does not entitle issues of that kind to be taken into account.

I have examined the transcript of the hearing before the Commissioner in order to ascertain the context of the Commissioner's statement upon which Mr Young relied (T 156 - 158). The transcript reveals that Mr Logan was being cross-examined by Mr Young about Mr Logan's reliance on the historical expertise of another witness (Mr T Kass) to conclude that a cottage had been erected upon the site at a particular time. Mr Gough (appearing for the council) objected to the line of questioning. The following exchange took place (T 157 - 158): YOUNG: Mr Logan has relied on another party's historical research of that property and then has taken that into consideration to his opinion of the importance of that particular allotment.

COMMISSIONER: I thought this was all about whether or not there was a house on the land at a particular time?

YOUNG: Well that's what Mr Cass's statement says and Mr Logan is relying on it, I'm saying that is not the case.

COMMISSIONER: So you're saying that Mr Cass is wrong based upon this certificate of title that you're asking Mr Logan to interpret?

YOUNG: That's correct. Well If Mr Logan has relied on Mr Cass's report he must have some knowledge or some confidence in it, if Mr Cass is not here to cross-examine.

Q. Mr Logan, you relied in part on what Mr Cass said? A. Yes.

Q. But you didn't investigate to see whether Mr Cass got it right? A. That's correct.

Q. You relied on his heritage expertise? A. Historical expertise--

Q. And you moved on from that point? A. Yes, yes.

COMMISSIONER: I don't think you can take it any further, Mr Young.

WITNESS: Mr Commissioner, if it would help you I mean I would say that I agree with what Mr Gough said that most usually certificates of title did not show improvements and the fact that this does not show a house does not indicate to me that a house wasn't in existence on site and I prefer to rely on Mr Cass's knowledge of house prices at the time - land prices at the time in determining that he value of the purchase price would most likely have indicated that a house did exist on the site.

COMMISSIONER: Q. At that time? A. At that time.

YOUNG: I have a problem with that. I don't from our research of it that is not the case--

YOUNG: Well if the heritage significance of this block of land is going to go back into--

COMMISSIONER: But we're not so much concerned about the heritage significance of this block of land, we're concerned about the conservation area.

In my opinion, the Commissioner's statement in question, taken in its context, reveals only the Commissioner's expression of his understanding that the issue for determination related to the conservation area in which the site was located rather than the heritage significance of the site itself. Despite the Commissioner himself putting some questions to Mr Logan to clarify the matter, I can find nothing in this passage, nor its context, which gives one shred of support for a claim that the Commissioner was adopting the role of the council.

As to the other matters raised by Mr Young, I have concluded that the Commissioner did not take into account irrelevant considerations. In setting out the relevant issues in par 13 of his judgment, the Commissioner referred to the issue as to whether the proposed development would be appropriate in the context of the proposed conservation area. In pars 31 - 35 he outlined the evidence relating to this issue, including the lengthy quotation from Mr Logan's report that I have mentioned. The Commissioner then concluded, in par 36, that the proposed alterations and additions to the existing house would be beneficial in the context of the conservation area, but, as far as concerned the proposed new dwelling, he preferred the evidence of Mr Logan over the evidence of Mr Howard on behalf of the applicant, and he concluded that the proposed new dwelling would be "inappropriate".

There is nothing in the Commissioner's judgment which shows that he took into account irrelevant considerations or that he made his decision on "imaginary" or "visionary" issues. He correctly identified the relevant issue, examined the evidence, and made a finding of fact based upon it. This accords with the requirements of s 79C of the EP&A Act, particularly s 79(1)(b) and s 79(1)(c), to which Mr Logan's evidence was relevant. No error of law has been demonstrated in this regard.

For these reasons, this ground of appeal must also fail.

Grounds 5 and 6 - failure to take into account relevant instruments

It appears that there were seven instruments of potential relevance to the determination of the applicant's development application. They were: Parramatta Local Environmental Plan 1993 ("the 1993 LEP") Draft Parramatta Local Environmental Plan 2000 ("the draft 2000 LEP") Parramatta City Council Development Control Plan Dundas Ward ("the Dundas Ward DCP") Draft Parramatta Local Environmental Plan 1996 (Heritage and Conservation) - Amendment 2 ("the draft 1996 LEP") Parramatta City Council Code for Dual Occupancy Development ("the Dual Occupancy Code") Parramatta City Council Draft Development Control Plan 2000 ("the draft 2000 DCP") Parramatta City Council Residential Strategy ("the Strategy")

As I understood Mr Young's submission, this ground of appeal is that the Commissioner failed to take into account all of these instruments. However, Mr Young did not specifically refer to the 1993 LEP in this connection, and there is really no issue that the Commissioner took it into account. As to the other instruments, the judgment contains specific references to the draft 2000 LEP (pars 6, 22 and 27), the draft 2000 DCP (par 35) and the draft 1996 LEP (par 31, although there was a slip in this regard - see par 44 of this judgment). Accordingly, I assume that the basis for this ground of appeal is that the Commissioner failed to take into account the remaining three instruments, namely, the Dundas Ward DCP, the Dual Occupancy Code and the Strategy.

In par 7 of his judgment, the Commissioner stated that four documents, which he listed by name, were "applicable to the site". Included in this list were both the Dundas Ward DCP and the Dual Occupancy Code. He made no further reference to these documents in his judgment.

I infer from par 7 that the Commissioner considered these documents and decided that they applied to the site. How much weight he gave them, and what bearing they had upon his decision, is not revealed. But this is not a case where the particular documents were not referred to at all, and, bearing in mind, first, the fact that the Commissioner constitutes a specialist lay tribunal and second, that he expressly found them applicable, I am not prepared to infer that he failed to take them into account. No error of law is demonstrated in this regard.

The Strategy is in a different category. It is nowhere mentioned in the Commissioner's judgment. However, Mr Tomasetti drew the Court's attention to a statement made by the Commissioner when Mr Young endeavoured to tender the document. The Commissioner said (T 200): … until such time as there is some clear evidence that it is indeed a correct reflection of council's present residential strategy and the basis for LEP 2000, it can't attract very much weight.

As far as I am aware, no further evidence of the kind referred to by the Commissioner was adduced during the hearing before him. At least, Mr Young did not draw my attention to any such evidence.

Having regard to the fact that the Commissioner commented directly about the Strategy during the hearing, I am unable to infer that he failed to take the Strategy into account. Nevertheless, he failed to refer to it in his judgment, and it is the duty of a court to give reasons for its findings on issues which are critical to a point in contention in the case (North Sydney Council v Ligon 302 Pty Ltd (1995) 87 LGERA 435 at 442). But in the light of his statement, and the apparent lack of further evidence, I cannot infer that the Strategy was critical to the determination of the issues before him. Nor did the Strategy fall into any category of instrument which the Commissioner was required to consider pursuant to s 79C(1)(a) of the EP&A Act. In those circumstances, I can discern no error of law on the part of the Commissioner in relation to the Strategy.

For these reasons, grounds 5 and 6 must also fail.

The basis of this ground of appeal is that the Commissioner failed to take into consideration a relevant matter, namely, cl 11(5)(b) of the draft Parramatta Local Environmental Plan 1996 (Heritage and Conservation) - Amendment 2 ("the draft 1996 LEP").

Clause 11(4) of the draft 1996 LEP requires a consent authority to assess the extent to which the carrying out of the proposed development would affect "… the heritage significance of the heritage item or heritage conservation area concerned". As the Commissioner noted in par 31 of his judgment, the site itself is not a heritage item, but it is included in the Wyralla Avenue Conservation Area. Accordingly, cl 11(5)(b) of the draft 1996 LEP applied so as to require an assessment of the eight particular heritage matters there specified.

It is not in dispute that s 79C(1)(a)(ii) required the Court to take into account the draft 1996 LEP; the issue is whether or not the Commissioner did so. There is no doubt that the Commissioner considered the proposed conservation area - pars 31 to 36 deal with it. The ground of appeal, however, arises from the fact that the Commissioner made no reference whatsoever to cl 11(5)(b), and furthermore, when noting the site as being part of the Wyralla Avenue Conservation Area (in par 31), he referred to "the draft LEP", which, if his earlier listing of the relevant statutory instruments was strictly to be followed, referred to the draft Parramatta Local Environmental Plan 2000 and not the draft 1996 LEP.

I am of the opinion, however, that the Commissioner did not fail to consider the draft 1996 LEP, nor did he fail to consider the matters required by cl 11(5)(b). The draft 1996 LEP established the conservation area, and the Commissioner recognised that the site fell within that area. His reference to "the draft LEP" was in error, but that was a slip in form, not an error of substance.

In par 36, the Commissioner stated that he accepted the evidence of Mr Logan, and, as I have earlier pointed out, he quoted that evidence at length in par 32. The quoted passages from Mr Logan's report dealt with most of the matters required by cl 11(5)(b). Thus, in par 5.6 of the quoted passage, Mr Logan dealt with the heritage significance of the conservation area, as required by sub-cl b(i) of cl 11(5)(b); in pars 5.7, 5.8 and 5.9, he dealt with the impact of the proposed development on the heritage significance of the heritage conservation area, as required by sub-cl (b)(ii); in cl 5.10, he dealt with the compatibility of the proposed development with the heritage conservation area, as required by sub-cl (b)(iii); and in cl 5.11, he dealt with the historic subdivision pattern, as required by sub-cl (b)(vii). Subclauses (b)(iv), (b)(v) and (b)(vi) do not appear to have any specific reference to the proposed development. As to sub-cl (b)(viii), which refers to submissions received following notification, the Commissioner referred expressly to the evidence of Mr Jones (which contained all submissions) and to the oral evidence given by four named objectors (par 11).

It is important to again bear in mind that the judgment is that of a lay tribunal, not a judge, and it should not be assessed with the same rigour as a judgment of the latter (Brimbella Pty Ltd v Mosman Municipal Council (1985) 79 LGERA 367). The critical requirement was for the Commissioner to take into consideration the relevant part of the draft 1996 LEP, and I find that he did so. Accordingly, this ground of appeal must also fail.

The applicant claims that the Commissioner denied procedural fairness to the applicant in two respects. First, Mr Young contended that the Commissioner viewed the site from Duncan Place (a cul-de-sac directly behind the site) without Mr Young being present. Second, Mr Young contended that the Commissioner had a conversation with the council's solicitor in relation to the proceedings without Mr Young being present.

In relation to the first contention, Mr Young presented no evidence, but claimed that the Court could infer that the Commissioner had viewed the site from Duncan Place by his acceptance of Mr Logan's evidence (which referred to the relationship of the proposed development to the conservation area) and from the Commissioner's statement, in par 41 of his judgment, that "the impacts of the new dwelling at the rear in terms of character and the conservation area are such that the proposal should not be approved".

I am unable to infer from these matters that the Commissioner viewed the site from Duncan Place in the absence of Mr Young. The matters upon which Mr Young requested the Court to draw an inference to that effect refer, as indeed do cls 31 to 36 of the judgment, to the Commissioner's determination that the erection of a new dwelling at the rear part of the site would have an adverse impact on the heritage significance of the conservation area. Nothing in the judgment supports a conclusion that the Commissioner's determination of this aspect of the case depended upon his view of the site from Duncan Place, whether with or without Mr Young being in attendance.

Similarly, Mr Young presented no evidence to support the second contention. From the bar table, he advanced the proposition that he surmised that a conversation about the proceedings had taken place in his absence between the Commissioner and one of the council's solicitors by reason of some remark made to him on another occasion by one of the council's solicitors. In response, Mr Tomasetti was granted leave to read two affidavits, one sworn by Mr C G Gough and another by Ms B S Gough, the former's law clerk. Both deponents deny speaking to the Commissioner outside the courtroom in relation to the proceedings. I find, therefore, that no conversation of the kind alleged by Mr Young did in fact take place.

For the foregoing reasons, this ground of appeal must also fail.

Mr Young submitted that the Commissioner made five findings of fact in respect of each of which there was no evidence, and that, furthermore, each finding infected the whole of the Commissioner's reasoning.

Before considering each of the findings, it is appropriate to acknowledge the limitations placed on this Court in respect of a s 56A appeal. As I have earlier said, such an appeal is confined to a question of law. In other words, if there is no error of law, this Court has no jurisdiction to grant relief, because findings of fact are solely within the province of the Commissioner and the weight which the Commissioner attributes to the evidence is a matter for him or her alone. The position was succinctly stated by Kirby P (as he then was) in Haines v Leves and Anor (1987) 8 NSWLR 442 at 470 as follows: Only if there is no evidence to support a finding, or if the ultimate finding of fact necessarily demonstrates a misdirection on the applicable statute may this Court offer relief, within its remit on questions of law.

(See also Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 155-156; McPhee v S. Bennett Ltd (1934) 52 WN 8 at 9; Australian Gas Light Co v The Valuer-General (1940) 14 LGR 149 at 155 and Randwick Municipal Council v Manousaki (1988) 66 LGRA 330 at 334).

I turn then to consider each of the five impugned findings.

(a) The draft Parramatta Local Environmental Plan 2000 … has been exhibited and adopted by Council (judgment par 6). The draft plan to which the Commissioner referred had been exhibited, but it had not been adopted by the council, and, as Mr Tomasetti pointed out, that fact had been brought to the Commissioner's attention by the council's solicitor (T 253.40). 56. However, the erroneous finding that the draft plan had been adopted had no bearing upon the Commissioner's determination. His ultimate decision was based on his determination that the proposed development was out of character with the area and impacted upon the heritage significance of the conservation area. The erroneous finding that the draft plan had been adopted is not, in these circumstances, of sufficient importance to vitiate the Commissioner's decision (Azzopardi v Tasman UEB at 157; Yates Property Corporation Pty Ltd (In liquidation) v Darling Harbour Authority (1991) 24 NSWLR 156).

57. (b) … this will be a defacto subdivision in that the site will appear to be divided into two parts and will indeed be so divided by the existence of a fence of the kind normally associated with a property boundary (par 25). Mr Young claims that there is no dividing fence intended to be constructed between the existing dwelling and the new dwelling, and that, therefore, there was no evidence to support the Commissioner's finding.
58. However, a set of drawings which accompanied the development application were tendered. From those drawings the Commissioner was entitled to draw inferences as to how the proposed development would appear and whether there was a dividing fence. They were questions of fact for the Commissioner to determine, and they are unassailable upon appeal under s 56A.

59. (c) … the site is also located in an area shown on the relevant map as being subject to cl 38 which has the effect of prohibiting dual occupancy development (par 6). This statement in the judgment refers to the draft Parramatta Local Environmental Plan 2000 ("the draft 2000 plan"), cl 38 of which provides that, in respect to certain land zoned 2(a), development for the purposes of dual occupancy is prohibited. The land so affected is stated to be shown cross hatched on the accompanying map.
60. A map together with an overlay were tendered in evidence before the Commissioner. Only the overlay contains cross-hatching, but by placing the overlay over the map, it can be seen that the site falls within the area which is cross-hatched.

61. Mr Young's submission regarding this matter amounts to a claim that the Commissioner's finding is contrary to the evidence. Mr Young contended that cl 38 makes no reference to cross-hatching on an overlay, and therefore a statement that the site falls within the cross-hatched area cannot be supported on the evidence. He contended, furthermore, that the draft 2000 plan is only a draft and not yet in force, and in any event it contains savings and transitional provisions. Accordingly, in his submission, it cannot be found unequivocally that the site is within the area in which dual occupancy is prohibited.

62. Once again, this claim amounts to a claim that the Commissioner's finding was contrary to the evidence. The Commissioner's acceptance and attribution of weight to the evidence before him was a matter solely for the Commissioner as being a question of fact, and is unassailable upon appeal under s 56A.

63. (d) Being one of the oldest cottages in the street and having been built by the subdivider of the estate, Charles Sonter … (par 31). Mr Young claimed that there was no evidence to support this finding of fact regarding the existing house. However, in par 31, the Commissioner referred to a report prepared by Mr Kass (a copy of which was annexed to Mr Logan's report), and the finding of fact which the Commissioner made is clearly derived from Mr Kass's report, in which precisely that fact was stated.
64. The acceptance of this evidence by the Commissioner is a question of fact, and therefore is also unassailable upon appeal under s 56A.

65. (e) The surrounding neighbours also objected to the new dwelling because it would be out of character (par 19). Letters of objection to the proposed development were tendered as an annexure to the report of Mr Jones. Included were letters from the residents of No 45 and No 41, which would on the face of it appear to be neighbouring properties. Each of those letters contained an objection based on the proposed development being out of character with the area.
66. The question of whether or not to accept this evidence and the weight to be attributed to it are questions of fact which are within the sole province of the Commissioner, and therefore this finding is also unassailable upon appeal under s 56A. Conclusion

67. I have concluded, for the foregoing reasons, that each of the grounds of the applicant's appeal must fail.

(1) The appeal is dismissed. (2) The applicant must pay the costs of the council as agreed or as assessed. (3) The exhibits may be returned.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.