Four2Five Pty Ltd v Ashfield Council

MEAGHER JA: I will ask Leeming JA to deliver the first judgment in relation to these two applications.

LEEMING JA: The applicant, Four2Five Pty Ltd, lodged an application for a mixed residential and commercial development in Ashfield approximately 750m west of the railway station. The development involved a ground floor retail tenancy, basement car parking for 66 vehicles over four basement levels, and 43 residential units. Four2Five lodged an appeal in the Land and Environment Court against Council’s deemed refusal on 4 July 2014. Following a hearing over two days in November 2014, the appeal was allowed by a Commissioner authorising the development, but subject to a number of conditions: Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 1009.

There is one aspect of that decision with which Four2Five was, and is, dissatisfied. Condition B(1)(a) and (b) required the deletion of units on level six from the southern part of the site, and on level three from the northern part of the site, because there was non-compliance with the development standard relating to the height of buildings in the Ashfield Local Environmental Plan 2013 (NSW) (LEP). Clause 4.6 of the LEP empowers development consent to be granted for developments that contravene the development standard in certain circumstances, but the Commissioner was not persuaded that the clause applied.

Four2Five then appealed, pursuant to s 56A of the Land and Environment Court Act 1979 (NSW), to a judge of that Court on questions of law. That appeal was heard on 11 May 2015 and determined on 3 June 2015 by dismissing the appeal: Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90. The primary judge addressed two questions relating to the construction of cl 4.6 of the LEP, and concluded that there was no error at all, let alone error of law, in the decision of the Commissioner.

Four2Five now seeks leave to appeal to this Court, pursuant to s 57 of the Land and Environment Court Act 1979 (NSW). Once again, that appeal is confined to an appeal “on a question of law”. There are three proposed grounds of appeal.

Before the primary judge, Four2Five contended that it had not been accorded procedural fairness because the parties had not been fully heard on the adequacy of Four2Five’s request pursuant to cl 4.6 seeking to justify the contravention of the development standard. Her Honour did not determine that contention, and proposed ground one was that failing to do so amounted to error.

The transcript of the hearing before the primary judge was not made available on the papers accompanying Four2Five’s leave application, but paragraph 40 of its amended summary of argument, filed 10 July 2015, is in the following terms:

The respondent to the application, Ashfield Council, filed a response submitting to the orders of this Court, save as to costs, and did not seek to be heard on any issue.

There are at least two reasons why leave should not be granted in respect of ground one. The first is that, irrespective of whether it was right or wrong for Four2Five to confirm that ground one did not need to be determined, the position is that her Honour did not determine that ground, and there is ordinarily no error, and certainly not an error on a question of law, in failing to determine a ground which, rightly or wrongly, the moving party did not wish to have determined: see the authorities collected in Western Freight Management Pty Ltd v Roads & Maritime Services (NSW) [2014] NSWCA 132 at [62].

The second reason is that ordinarily leave should not be granted, in a second appeal to this Court, in respect of a point not advanced in the earlier appeal.

Proposed grounds two and three relate to the construction of cl 4.6, which relevantly is in the following terms:

Proposed grounds two and three are as follows:

Proposed ground two turns on [60] of the reasons of the Commissioner, which was in the following terms:

The primary judge said that it was “debatable” whether this ground identified a question of law, because whether or not the written request identified circumstances which were particular to the development on the particular site was one of fact: [2015] NSWLEC 90 at [29]. In any event, the primary judge noted that the power to grant consent under cl 4.6(4)(a) turned upon a state of satisfaction that the written request had “adequately addressed” the matters required to be demonstrated by subclause (3), and saw no error in the approach taken.

It is sufficient to state that no error, and certainly no error of law, is disclosed in the Commissioner’s reasoning at [60] reproduced above. It is clear that the Commissioner approached the question of power posed by subclause (3)(b) on the basis that merely pointing to the benefits from additional housing and employment opportunities delivered by the development was not sufficient to constitute environmental planning grounds to justify contravening the development standards in this case. That does not give rise to a question of law.

So far as may be gleaned, proposed ground three asserts that the Commissioner approached the question of satisfaction in relation to subclause 3(a) on the basis that regard could only be had to matters other than those referred to in cl 4.6(4)(a)(ii). Two things may be said about this ground. First, it is not apparent that the Commissioner did proceed on that basis. Her reference in [62] to "additional ways of establishing that compliance is unreasonable or unnecessary in the circumstances of the case" accepts that matters of consistency with objectives of development standards remain relevant, but not exclusively so. Secondly, as the primary judge noted at [3], success on this ground alone would not result in the appeal being upheld. That is because the Commissioner was not satisfied as to either of the matters in subclause (3).

In circumstances where this Court was told that cl 4.6 was an important clause, recurring in many or most modern LEPs, but did not have the advantage of competing submissions from the parties, it is inappropriate to say anything more as to its construction than is necessary to resolve the question of leave.

I propose that leave to appeal be refused. I also propose that the notice of motion filed 12 August 2015 be dismissed.

MEAGHER JA: I agree. Accordingly, the orders of the Court will be as proposed by Leeming JA.