Peter Byfield and Andrew Glavinic v J Daly, D Sorokowski, N and J Thomson, v Korandi, J Salasay, J and A Cleaver, P and M Regnault and J and C Phillips and Richard Johnston [1995] ACTSC 130 (1 December 1995)

SUPREME COURT OF THE ACT

PETER BYFIELD and ANDREW GLAVINIC v. J DALY, D SOROKOWSKI, N AND J THOMSON, V
KORANDI, J SALASAY, J AND A CLEAVER, P AND M REGNAULT and J AND C PHILLIPS and
RICHARD JOHNSTON
No. SCA49 of 1995
Number of pages - 10
Building and Construction - Appeal

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
HIGGINS J

CATCHWORDS

Building and Construction - objection to development proposals - dual occupancy - two storey units.

Appeal - appeal to land and planning appeals board - review of decision by land and planning appeals board - requirement of 'question of law' - aesthetic judgment as to impact of proposed development.

Territory Plan, Appendix III.2
Land (Planning and Environment) Act 1991 (ACT), ss245, 282ZG, 282ZI, Part VIA Division 4

Barmuncol Pty Ltd v Maroochy Shire Council (1983) 2 Qd R 639
Pettitt v Dunkley (1971) 1 NSWLR 376
Mobasa Pty Ltd v Nikic [1987] NTSC 35; (1987) 47 NTR 48
Sun Alliance Insurance Ltd v Massoud (1989) VR 8

HEARING

CANBERRA, 1 November 1995
1:12:1995

Counsel for the Appellant: Mr J Cripps, QC

Instructing solicitors: Allen Allen and Hemsley

Counsel for the First Respondents: Ms S Foliaki-Singh

Instructing solicitors: Snedden Hall and Gallop

Counsel for the Second Respondent: No appearance

Instructing solicitors: ACT Government Solicitor

ORDER

THE COURT ORDERS THAT:
The appeal be dismissed.

DECISION

HIGGINS J By an application dated 12 July 1994, Mr Peter Byfield sought approval for a dual occupancy development on Block 21 Section 74 Yarralumla, known as 38 Musgrave Street.

2. The proposal drew a number of objections from nearby lessees. Most of those objections took exception to the fact that the development proposed two double storey units rather than two single storey units. It was contended by objectors that the proposed development would unduly impinge on the privacy and amenities of neighbours as well as being aesthetically inappropriate. Several objectors also drew attention to alleged failure of the proposal to comply in some respects with Appendix III.2 of the Territory Plan.

3. On 15 November 1994, Mr Byfield lodged an amended proposal. The amendments made to the original proposal seem to have been designed to overcome and remove areas of technical non-compliance with the Territory Plan. Those areas of non-compliance had been the subject of complaint in some of the statements submitted by objectors. However, the proposal did not change so far as the height and bulk of the buildings was concerned.

4. Mr Richard Johnston, a member of the ACT Planning Authority, exercised under delegation the power of the Minister to approve the application. The decision he made was to give conditional approval to the application made on 12 July 1994. That is a power conferred upon the Minister under s245 of the Land (Planning and Environment) Act 1991 (ACT) (the Land (P and E) Act).

5. Written reasons for the decision were given. It is not clear when they were delivered to the objectors but the decision was dated 18 November 1994.

6. Mr Johnston, in the course of those reasons, made a detailed assessment as to the compliance of the proposal with the Residential Design and Siting Code for Multi-Dwelling Developments in the ACT (the Code) contained in Appendix III.2 of the Territory Plan.

7. The amendments proposed by Mr Byfield on 15 November 1994 met the areas of non-compliance identified by Mr Johnston. It is plain that they had been made with a view to complying with the decision Mr Johnston proposed to make.

8. Mr Johnston made reference to the amended proposal and concluded as follows,

... the modified plans indicated a well considered and designed
proposal which very effectively met the Code's qualitative
requirements. The modified proposal would assist in providing for
further housing choice within the locality, in a way which was not of
an unreasonable scale or form so as to be incompatible with other
surrounding development. As such it was considered that it would also
meet the general policy provisions of the Territory Plan.

9. During December 1994, a number of objectors appealed to the Land and Planning Appeals Board against Mr Johnston's decision.

10. The grounds relied upon by the "21/74 Protest Group", as they called themselves, were expressed to be fourfold,

(a) Defective procedures - approving the amended proposal without
exposing the proposed amendments to public comment and objection
ie it should have been treated as a new proposal - acting on a
site demolition plan that was incorrect.
(b) Failure to conform to the Code.
(c) Adverse impact on the residential amenity of surrounding lessees.
(d) Conflict with current community values.

11. The areas of alleged non-compliance relied upon were identified as follows,

Objectives Performance Criteria Performance Measures
O1.1 P1.1 D5.8
O2.1 P3.4 D7.1
O3.3 P3.5 D7.2
O5.1 P5.1
O7.2 P7.2

12. They are, as expressed in the Code,

O1.1 - To provide an appropriate residential scale within a locality.
P1.1 - Buildings to be limited in height to ensure compatibility with
adjacent development.
O2.1 - To provide attractive streetscapes which reinforce the
functions of the street and enhance the amenity of dwellings.
O3.3 - To ensure scale, height and length of a building and walls
relative to side and rear boundaries are of appropriate
residential character.
P3.4 - Buildings to be sited to minimise over-shadowing of northern
facades of adjacent dwellings and private outdoor spaces.
P3.5 - Building walls to be sited and to be of length and height to
ensure no significant loss of amenity to adjacent dwellings and
private open spaces.
O5.1 - To provide sufficient and convenient parking for residents,
visitors and service vehicles.
P5.1 - Resident and visitor car parking to be provided according to
projected needs of the dwelling ...
D5.8 - Driveways
Driveways not less than 3 metres wide ...
O7.2 - To limit overlooking of private open space and to enable
residents to effectively control outlooks between rooms in
adjacent dwellings.
P7.2 - The private open spaces and living rooms of adjacent dwellings
to be protected from direct overlooking by dwelling layout,
screening devices, distance or landscaping.
Minimum Interfacing Distances
D7.1 - Minimum distance of balconies, unscreened decks or windows
(other than fixed obscure glazing) or glazed doors to a
habitable room in a dwelling from the external wall of any
other dwelling:
- both dwellings at lower floor level: 6 metres
(if screen wall provided)
- otherwise: 12 metres
provided that, where the external wall of the other dwelling is
a blank wall and is not located to the north, north-east or
north-west of the first dwelling, the minimum distance may be
reduced to:
- external wall at lower floor level: 3 metres
- external wall at upper floor level: 6 metres
Minimum distance of windows to other than habitable rooms and
fixed obscure glazing from the external wall of any other
dwelling:
- both dwellings at lower floor level: 1.5 metres
- otherwise: 3 metres
Where a party wall is not provided between dwellings, minimum
distance between blank walls: 1 metre
Overlooking of Private Open Space
D7.2 - Outlook from windows, balconies, stairs, landings and decks or
other private, communal or public areas within a development to
be screened or obscured if there is a direct view into private
open space of another dwelling.
Screening devices to be designed to prevent overlooking of more than
50 per cent of the private open space of another dwelling on the same
block.
No screening is required if windows have obscure glazing or sill
heights of at least 1.7m;
or
are at lower floor level and facing a side or rear boundary where
there is already a screen wall.

13. It will be observed that in many instances a decision as to whether or not there has been compliance with the Code will involve matters of aesthetic judgment.

14. The submission that the amendments to the proposal lodged on 15 November 1994 amounted to a new proposal was supported by an opinion from Mr Don Gilson, Architect. Again, that conclusion could only be based on a subjective judgment. The amendments do not seem to have changed the basic nature of the development as proposed so far as the objectors were concerned.

15. The decision of the Minister's delegate was reviewable pursuant to the provisions of Part VIA Division 4 of the Land (P and E) Act by the Land and Planning Appeals Board (the Board).

16. No complaint is made by the objectors as to the procedure adopted by the Board in conducting the review of Mr Johnston's decision. The powers of the Board relevant for present purposes were those conferred by s282ZG of the Land (P and E) Act. That relevantly provides,

(1) For the purpose of reviewing a decision, the Appeals Board may
exercise all the powers and discretions that are conferred by any
relevant enactment on the person who made the decision and shall make
a decision in writing -
(a) affirming the decision under review;
(b) varying the decision under review; or
(c) setting aside the decision under review and -
(i) making a decision in substitution for the decision so set aside;
or
(ii) remitting the matter for reconsideration in accordance with any
directions or recommendations of the Boards.
...
(5) Where the Appeals Board gives its decision in a proceeding in
writing it shall give its reasons for its decision including its
findings on material questions of fact and a reference to the evidence
or other material on which those findings were based.
...
(11) A decision of a person as varied by the Appeals Board, or a
decision made by the Board in substitution for the decision of a
person, shall, for all purposes (other than the purposes of
applications to the Board for a review or of appeals in accordance
with section 282ZI), be taken to be a decision of that person and,
upon the commencement of the decision of the Board, unless the Board
otherwise orders, has effect, or shall be taken to have had effect,
from the day on which the decision under review has or had effect.

17. The Board heard the appeal on 4 May 1995. Written reasons were delivered on 30 May 1995. The "findings" were not controversial, merely setting out the history of the matter. The "Statement of Reasons" was as follows,

The reasons for the above findings including those on material
questions of fact are:
(a) the proposed dual occupancy development would be included within
the meaning of 'building' as defined in section 3 of the Buildings
(Design and Siting) Act 1964 would constitute 'development of land
involving any aspect of external design and siting' within the meaning
of that section and therefore be subject to section 5 of that Act and
the provisions of Part VI of the Land (Planning and Environment) Act
1991 as applied,
(b) the decision on the proposed dwelling was subject to the
provisions of the Territory Plan, in particular Part B1 - Residential
Land Use Policies and Appendix III.2 - Residential Design and Siting
Code for Multi-Unit Dwellings in the ACT. Other General Policies of
the Plan including Part A2 Clause 3 (Principles and Policies of
Residential Areas) and the Plan's Implementation Policies (see Part A3
and Appendix I) raise additional matters for consideration,
(c) the Board found that the assessment of the ACT Planning Authority
against Objective 1(g) of the Residential Land use Policies (Part B1
of the Territory Plan) and certain objectives and performance criteria
of the Residential Design and Siting Code for Multi-Dwelling
Developments in the ACT (Appendix III.2) could not be supported,
(d) against Objective 1(g) of the Residential Land Use Policies, it
is the Board's opinion that the proposed development is not of a scale
and character that is compatible with the surrounding area of
predominantly single storey dwellings and as a consequence the amenity
of nearby residents would be unacceptably affected. The Board takes
this view notwithstanding that it was claimed that garages below
ground floor level may qualify at least one existing nearby house as
two storey,
(e) against Objective O7.2 and Performance Criterion P7.2 the Board's
view is that the proposed 2-storey development would significantly
overlook the private open space of adjacent dwellings, particularly on
Block 22,
(f) against Objective O3.3 the Board found that the height and length
of the building, particularly when viewed from the street and from
Block 20 were not of appropriate residential character,
(g) against Performance Criterion P3.4 the Board was of the view that
the siting of the proposed development did not sufficiently minimise
overshadowing of the private open space of Block 20 which adjoins the
southern boundary of the subject land.

18. In paragraph (c), the reference to Part B1 - Residential Land Use Policies, Objective 1(g) is,

... to ensure that the scale and character of development is
compatible with the surrounding area and does not unacceptably affect
the amenity of nearby residents.

19. In essence, the Board took the view that the two storey proposal offended that objective and O7.2, P7.2, O3.3 and P3.4 (supra) set out in Appendix III.2.

20. Under a heading "Other Matters Noted", the following statement appeared, The Board noted that -

a) a single storey dual occupancy without attics or garages below
ground floor level would overcome the deficiencies found by the Board
and that such a development would most likely be accepted by adjoining
lessees,
(b) the changes to the proposal, made after discussions between the
developer and the ACT Planning Authority, but without further
consultation with objectors, were, in the opinion of the Board, of
such magnitude that they should have been treated as a new application
rather than compliance with a request for further information by the
Authority,
(c) (not relevant)

21. The Board's decision was that the amended proposal not be approved. There was no further amended proposal to approve. Consequently, note (a) was merely advisory. Nevertheless, it was consistent with the essential reason for the denial of approval, namely, that the proposal for two storey units, in the Board's view, would adversely affect neighbours and the amenity of the neighbourhood to an unacceptable degree. It is clear that neither the Board, nor the objectors, took the view that approval of any dual occupancy proposal had to be refused. That "note" indicated that a single storey dual occupancy proposal could be approved, if otherwise in conformity with the Code.

22. Note (b) was unnecessary to the decision as, insofar as the approval of the amended proposal had denied natural justice to existing objectors and potential further objectors, the refusal of approval made that denial irrelevant. Further, the appeal process itself had enabled existing objectors and their supporters to raise all relevant concerns about the amended proposal.

23. On 26 June 1995, the developer and the builder, Andrew Glavinic, filed jointly a Notice of Appeal in this Court seeking to have the Board's decision set aside.

24. Section 282ZI(1) of the Land (P and E) Act permits an appeal to this Court from a decision of the Board "on a question of law".

25. The power of the Court to hear and determine such an appeal extends to affirming, setting aside or varying the decision appealed from. There is also power to remit the matter to the Board in accordance with the directions of the Court, see s282ZI(5) Land (P and E) Act.

26. Such an appeal can succeed only if there has been an error of law such as to vitiate the decision appealed from, see Barmuncol Pty Ltd v Maroochy Shire Council (1983) 2 Qd R 639.

27. The Notice of Appeal purported to identify five "Questions of Law" on which the appeal was based. They were,

(a) Whether the Board misdirected itself as to the purpose, meaning
and effect of the provisions of the Territory Plan ('the Plan')
(b) Whether the Board failed to make findings on material questions of
fact
(c) Whether the Board took into account considerations irrelevant to
its task of assessing compliance of the proposed development with the
Plan for the purpose of design and siting approval
(d) Whether the Board failed to take into account considerations
relevant to its task of assessing compliance of the proposed
development with the Plan for the purpose of design and siting
approval
(e) Whether the decision of the Board is unreasonable.

28. The grounds of appeal alleged that the Board had erroneously addressed those questions.

Ground of appeal (a)
29. Mr Cripps QC, for the appellants, suggested that failure to approve the amended proposal indicated a failure to consider the Objectives of the Territory Plan, particularly 1(a), (b), (c), (d) and (g). Whilst the Board referred to 1(g), it did not refer to 1(a) to (d).

30. In that respect, he contended, the Board had failed correctly to apply the Plan. The objectives which he contended had been ignored were,

(a) to provide opportunities for efficient, affordable, and
sustainable residential development which creates a range of housing
opportunities
(b) to provide for a variety of housing types throughout Canberra
which will enable residents to find accommodation suitable to their
needs and stage in the life cycle
(c) to provide the opportunity for increased residential densities to
help consolidate the urban area and better utilise the existing social
and physical infrastructure
(d) to encourage residential development that is cost-effective in
infrastructure provision and use

31. The same failure was said to support grounds of appeal (c) and (d).

32. There would be force in that submission if the issue had been whether or not a dual occupancy two storey development could, or should, be permitted at all. That, however, was not the issue. The issue was whether the dual occupancy development proposed would have been acceptable aesthetically had it proposed one storey units rather than two storey units.

33. Mr Cripps QC further submitted, presumably alternatively, that meeting the performance criteria and measures should, prima facie, have been regarded as satisfying the objectives of the Plan. That submission, if accepted, would lead to the objectives of the Plan being of secondary or little importance in their own right.

34. No doubt, the more completely an application falls within the criteria and measures set forth in the Code the less likely it is to be disapproved. Further, if all italicised performance measures are met, the Plan provides that the public notification provisions do not apply.

35. Nevertheless, it seems to me that the acceptability or otherwise of the proposed development, so far as the impact on neighbouring lessees are concerned, must remain an issue to be decided whether or not the technical criteria and measures set out in the Plan are met. That was one of the matters the Plan required the approving authority to consider. It does not seem to me necessarily to follow that because the performance criteria and measures are met, the Plan objectives are necessarily thereby satisfied.

36. It was open to the approving authority to have approved a two storey development. The decision of the Board was that it should not be approved. That conclusion was, it seems to me, one of inference and judgment reasonably open on the undisputed facts. There does not seem to me to have been a failure properly to consider all the matters identified as relevant. Most had been adverted to in Mr Johnston's decision. They did not require repetition. They were not in dispute. The only matter in issue was the question of aesthetic judgment as to the impact of the proposed development on the neighbours and on the neighbourhood.

37. It does not appear to me that the Board failed properly to interpret and apply the provisions of the Plan.

Ground of appeal (b)
38. The objection, as Mr Cripps QC explained it, was that the Board had failed to give proper reasons for the findings it made. A failure to give proper reasons for a decision can be a vitiating error of law, see, for example, Pettitt v Dunkley (1971) 1 NSWLR 376.

39. The purposes of the giving of reasons are,

. to enable the parties to understand the basis for the verdict; and
. to enable an appellate court to ascertain the reasoning on which the
decision was based,
see Mobasa Pty Ltd v Nikic [1987] NTSC 35; (1987) 47 NTR 48 and Sun Alliance Insurance
Ltd v Massoud (1989) VR 8.

40. There was no dispute as to what the proposal in fact was. It came down to a question of judgment as to the likely effect on neighbours and the neighbourhood of the scale and size of the proposed development. There was no dispute as to the objective scale and size of the proposed development, the only question was whether it should be regarded as "unacceptable".

41. The delegate of the Minister found the proposal's impact on neighbours not "unacceptable". The Board found it was "unacceptable".

42. It does not seem to me that the formation of such a judgment involves a "question of law", unless one or other of those conclusions could not reasonably have followed from the established facts. To decide one way rather than the other when either conclusion was reasonably open is not an error of law.

43. It seems to me to be difficult to expect the Board more fully to explain why it came to the conclusion which it did. Essentially, it is a matter of characterising the effect of the proposed development. It seems to me that either view of its effect on neighbouring leaseholders was reasonably open. It was not an error of law for the Board to differ with the Minister's delegate on that issue.

44. The reasons the Board gave were, in my opinion, adequate to explain all the matters required to be addressed by s282ZG(5) of the Land (P and E) Act.

Ground of appeal (c)
45. There is no substance in the complaint that irrelevant considerations were taken into account. Indeed, no submission was directed to that complaint. No such considerations were identified.

Ground of appeal (d)
46. Whilst it is clear that the Board's reasons do not restate all matters identified in Mr Johnston's decision as relevant, it does not appear to me that any relevant consideration was ignored.

Ground of appeal (e)
47. For the reasons referred to in relation to ground (b), there is no substance in the proposition that the Board's decision was "unreasonable".

Conclusion
48. There was no error of law. The appeal must be dismissed.

49. The respondents did not seek to put submissions as to the primary relief sought by the appellants. They sought to be heard only as to costs.

50. I will hear the parties as to costs.