WALLIN v LAKE MACQUARIE CITY COUNCIL & ORS

MEAGHER JA: I agree with Stein JA.

STEIN JA: This is a most unfortunate appeal. I have concluded that it should be dismissed because the appellants, deep as their grievance obviously is, simply have no case that the judgment of Lloyd J should be reversed.

From the point of view of the Wallins’, one can well understand their grievance. They lived in an old Miners cottage located at No 31 Frederick Street, Dudley, very close to the boundary with No 29. There was a stand of bamboo on or adjacent to the boundary which provided them with privacy screening. Next to them was a small dwelling. The new building erected on that land is much larger and overlooks and overshadows their home to a much greater extent than before and this, they maintain, has been exacerbated by the removal of the bamboo. While the court may be sympathetic to their situation, it has to determine matters according to law. Likewise the Land and Environment Court. In judicial review proceedings, such as these, the court can have no opinion on the merits or otherwise of the development.

On 6 November 1997 the Land and Environment Court dismissed an application by Mr and Mrs Wallin which claimed that a certain building approval, relating to land adjoining their home at Frederick Street was invalid. This was a judicial review application and not an appeal on the merits which the legislation does not permit. It was not the role of the Land and Environment Court to substitute its view on the merits of the building application. The task of the court was to ascertain whether, in accordance with the well known administrative law principles of judicial review, the granting of the approval was vitiated by an error of law by the Council (the first respondent which issued the building approval).

In the alternative, the Wallins claimed that the building approval, if valid, had been breached by the second and third respondents (the owner and builder respectively).

After a hearing which encompassed eleven days, Lloyd J dismissed the Wallins’ application with costs.

On the appeal the appellants were self represented. The second respondent was also self-represented. The first and third respondents were represented by counsel.

It is difficult to comprehend with any specificity the appellants’ attack on the judgment since their amended Notice of Appeal and annexure is unhelpful. It maintains that his Honour made errors of fact and also took account of irrelevant considerations. It also claims that his Honour denied them procedural fairness in certain respects. This allegation may be disposed of immediately. I am left in no doubt that Lloyd J accorded Mr and Mrs Wallin procedural fairness.

The relevant building approval was granted on 21 October 1996. (It is to be found at Blue AB 1, 51-62). It seems apparent that the principal contention of the appellants was that the Council had failed to properly consider the building application. In particular, it failed to consider, or inadequately considered, the impact of the proposed building on their residential amenity, caused by its height and the shadows it would cast on their property, along with privacy concerns. See the appellants’ Points of Claim, paragraph 10 (Red AB 8) drafted by solicitors then representing them. This paragraph provides greater particularity to the appellants’ complaints about the building approval.

His Honour concluded his examination of the appellants’ challenge to the approval thus: It is clear that there is no evidence whatsoever to support the applicants’ assertion that the Council failed to take into consideration the likely effect of the building on other land and buildings or failed to take into consideration the effect of overshadowing and privacy on the adjoining land. There is, in particular, no evidence that the Council had regard to any extraneous or erroneous information or took into account any other irrelevant consideration. Such evidence as exists is all to the contrary. No error of law has been demonstrated. [Red AB 40 E - K]

I am left in no doubt that his Honour’s conclusion was correct. Lloyd J was right to dismiss the appellants’ attack on the validity of the building approval. It had no substance.

The alternative case brought by the appellants before Lloyd J was that the approval, assuming its validity, had been breached by the second and third respondents. Although the appellants had made extensive claims of non-compliance, they adduced evidence in relation to a limited number of matters claimed to establish breaches. Lloyd J specified seven claims and addressed each in some detail. His Honour discussed the relevant evidence and concluded that no breaches of the approval had been established. In the case of item No. 1, the trial judge said that even if he had found that the construction of the additional length of retaining wall was unlawful, the court would decline to make any order disturbing the situation in the exercise of its discretion. [Red AB 43 Q] Indeed, his Honour made similar findings on discretion in relation to the other alleged breaches.

I should mention another aspect concerning the claim of non-compliance relating to the retaining wall. Lloyd J found that its height varied from 850mm to something less than that. That finding of fact was open to him. He went on to say that under the Council’s Local Approvals Policy, adopted under Ch 7 Part 3 of the Local Government Act 1993, no approval was required for any retaining wall having a maximum height of 1m. Accordingly, the additional length of 2.05m of wall was not unlawful. His Honour noted that the Policy provided that structures which have been identified in or are in the vicinity of land in the City of Lake Macquarie Heritage Study are not exempt from the need for approval. His Honour said that there was no evidence to suggest that 31 Frederick Street had been identified in or was in the vicinity of land in the Heritage Study. His Honour was entitled to so conclude.

It appears that well after the approval in October 1996 the Council exhibited a draft Local Environmental Plan which related to its Heritage Study. This was in February to April 1997. (Blue AB 560) At the most, therefore, amendments were proposed to the Council’s Local Environmental Plan 1984 to give effect to its Heritage Study. There was, however, no evidence before Lloyd J, that as at the date of the approval in question, the subject land had been identified or was in the vicinity of land in the Heritage Study referred to in the Local Approvals Policy. The Heritage Study itself was not put into evidence. The onus of proof was on the appellants and they failed to discharge it. Cases can only be determined on evidence adduced in court.

In any event, as his Honour said, condition 30 of the approval appears to provide permission to the construction of the section of the retaining wall in issue.

I have considered each of the matters relied on by the appellants but am unable to discern any error in his Honour’s treatment of their case that the building approval had not been complied with by the second and third respondents.

The Wallins have filed affidavits, ‘narratives’ and other documents in support of the appeal, which I have read, but nothing in them lends any support for their contention that Lloyd J’s decision on validity or breach was erroneous. Likewise the written submissions and photographs filed in reply on 24 August 1999. The appeal should be dismissed with costs.

Since receipt of the appellants’ written submissions in reply (24 August) they have filed a Notice of Motion seeking leave to admit further evidence said not to have been included in the Blue Appeal Books. I have considered this motion and the affidavit of Graham Wallin, sworn 25 August 1999, in support.

In my view, the motion should be peremptorily dismissed with costs as an abuse of process. The material already before the court is more than adequate to address the issues raised by the appellants on the appeal. It must be recalled that the case of the appellants depends upon establishing an error of law rather than upon fine points of evidence. Accordingly, it will not be necessary for the respondents to appear at court on 6 September 1999 to answer the motion.

DAVIES AJA: I agree with Stein JA.