Land and Environment Court New South Wales

• Medium Neutral Citation: Davies v Penrith City Council [2013] NSWLEC 1141
• Hearing dates: 24 June 2013
• Decision date: 31 July 2013
• Jurisdiction: Class 1
• Before: Moore SC

Decision

Directions given for the electronic filing of conditions to permit a significantly reduced development and one confined to being behind the building line being granted development consent.

• Catchwords: AGENTS: Requirements of s 63 of the Land and Environment Court Act 1979 and rule 7.7 of the Land and Environment Court Rules 2007; conduct of agent (Mr R Creighton) in these proceedings; PLANNING PRINCIPLES: Revision of the planning principle in Pafburn v North Sydney Council [2005] NSWLEC 444; revised planning principle for assessing impacts on neighbouring properties; DEVELOPMENT APPLICATION: Compliance with objectives of Local Environmental Plan; role of prohibition in Development Control Plan; streetscape; consistency with neighbouring development
• Legislation Cited: Land and Environment Court Rules 2007; Land and Environment Court Act 1979; Environmental Planning and Assessment Act 1979; Courts and Other Legislation Amendment Act 2012; Civil Procedure Act 2005; Land and Environment Court Rules (Amendment No 1) 2013; Trees (Disputes Between Neighbours) Act 2006; Uniform Civil Procedure Rules 2005; Penrith Local Environmental Plan 1998 (Urban Land)
• Cases Cited: Zhang v Canterbury City Council [2001] NSWCA 167; (2001) 115 LGERA 373; Pafburn v North Sydney Council [2005] NSWLEC 444; Grant v Kiama Municipal Council [2006] NSWLEC 70; Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472
• Category: Principal judgment
• Parties: G Davies (Applicant); Penrith City Council (Respondent)
• Representation: Counsel; Ms L M Saw (Applicant); Mr S Nash (Respondent); Solicitors; Legal Section,; Penrith Council (Respondent)
• File Number(s): 10269 of 2013
• Publication restriction: No

Judgment

INDEX
Topic	Paragraph
Introduction	1
My refusing Mr. Creighton leave to appear as agent	4
Legislative history of agents' roles in the Court	10
Mr Creighton's initial participation	29
The period until the site inspection	37
The site inspection	50
Appearing" - the process	60
The proceedings in court	66
Amendment to the plans	78
Mr Creighton's post hearing communication	80
The scope of s 56 of the Civil Procedure Act 2005	83
Concluding comments concerning Mr Creighton's behaviour	86
Mr Davies' proposed carport
The relevant planning framework	92
The Development Control Plan	99
The weight to be given to the DCP	105
The setting and an introduction to the application	108
Revision of the Planning Principle in Pafburn	116
Admission of evidence	122
Consideration of the planning issues	125
Conclusion	150
Conditions of consent	155
Directions	161

Introduction

1 SENIOR COMMISSIONER: An appeal concerning a proposal to erect a carport at the front of a suburban dwelling, as is this appeal, would not, ordinarily, lead to consideration and discussion of the Land and Environment Court Act 1979 (the Court Act) and the Land and Environment Court Rules 2007 (the Court Rules).

2 However, during the course all this appeal, I refused leave to Mr. Creighton to appear as agent for Mr. Davies. This judgement sets out my reasons for making that decision during the course of the hearing and, having provided those reasons, then moves to consider and determine the substantive merit issues associated Mr. Davies' carport application.

3 During the course of dealing with those merit issues, I also discuss the planning principle in Pafburn v North Sydney Council [2005] NSWLEC 444, the reasons why revision of that planning principle is appropriate and then publish the revised planning principle that has been derived through the Court's collegiate processes for consideration of such broader matters of principle.

Introduction to refusing Mr. Creighton leave to appear as agent

4 To put my decision to refuse Mr Creighton leave to appear in its proper context, it is necessary to set out, at some length, the history of these proceedings as they encompass the matters that lead up to and formed the framework within which I made that decision during the course of the hearing in court.

5 Mr Scott Nash has appeared, since the first return date as the barrister for Penrith City Council (the council). The council's in-house lawyers have instructed him in the proceedings.

6 Mr Creighton has sought, pursuant to s 63 of the Court Act, to appear as Mr Davies' agent in these proceedings.

7 I initially place on the record my opinion that it is clear that any activities undertaken by Mr Creighton purporting to be Mr Davies' agent after the conclusion of the Registrar's directions hearing on 7 May 2013 were made without Mr Creighton having any authority, whatsoever, to appear as agent for Mr Davies in these proceedings.

8 It is necessary for that matter to be made clear from the outset - not only for the integrity for the process that has been undertaken in this Court but also in the event that there needs to be a clear and express delineation of what activities Mr Creighton may have carried out purportedly as Mr Davies agent if that matter needs to be examined by some other body such as the Consumer Trader and Tenancy Tribunal. My reasons for having so concluded are set in the following portion of this decision before I turn to the merits (or lack thereof) of the carport proposal involved.

9 I do not know how Mr Davies came to engage Mr Creighton to commence this appeal pursuant to s 97 of the Environmental Planning and Assessment Act 1979 (the EPA Act) nor do I need to know how that occurred

Legislative history of agents' roles in the Court

10 To understand my procedural concerns and why it is appropriate, in my opinion, to set out what has happened in this matter, it is necessary to recite a little of the recent history concerning the legislative provisions that relate to the permitting of agents to appear in merit appeal proceedings in this Court.

11 Ordinarily in civil litigation, individuals are represented by a barrister or solicitor or appear for themselves as self-represented litigants.

12 For a court, representation by a barrister or solicitor provides the assurance that the advocate is an officer of the court; has statutory responsibilities to the court; and is bound by and must adhere to the additional responsibilities, including ethical responsibilities, imposed by the Barristers' Rules or the Solicitors' Rules (as appropriate).

13 For self-represented parties, the court itself accepts a responsibility to assist with procedural and other court process matters whilst not assisting with the presentation of the merits of that party's case. The Land and Environment Court has accepted its responsibilities to self-represented litigants by providing an extensive range of plain English explanatory materials on the Court's website including, for some areas of the Courts jurisdictions, step by step explanations of the process.

14 Relevant to these proceedings, a residential development appeal that commenced as a conciliation conference under s 34AA of the Court Act, such a step-by-step guide from the filing of an application through the complete process until the giving of a decision (and the making of orders of the Court to give effect to it) is available. This has been provided in order to encourage those wishing to challenge a council's refusal of their development application for a small-scale project to do so without going to the expense of engaging a lawyer or any other expert for that purpose.

15 Unusually, however, the Court Act has permitted, in the Court's civil jurisdictions, a person to be represented by an agent authorised by the person in writing.

16 As first enacted in 1979, this right was provided for in the following terms:

63 . A person entitled to appear before the Court may appear in person, or by a barrister or solicitor, or (except in proceedings in Class 5 of the Court's jurisdiction) by an agent authorised by the person in writing.

17 In the form that prevailed immediately prior to 28 October 2012, the legislation continued to permit such representation through s 63, a provision that read, immediately prior to that date:

63 Right of appearance

(1) A person entitled to appear before the Court may appear in person, or by an Australian legal practitioner, or (except in proceedings in Class 5, 6 or 7 of the Court's jurisdiction) by an agent authorised by the person in writing.

(2) Despite subsection (1), a person may not appear before the Court by an agent in proceedings in Class 8 of the Court's jurisdiction except with the leave of the Court.

18 In 2012, the Court Act's provisions permitting representation by agents were amended by the Courts and Other Legislation Amendment Act 2012. The amended s 63 commenced on 28 October 2012 by proclamation. The amended s 63 applied to proceedings commenced after that date (as is the case with these proceedings - ones which were commenced on 16 April 2013).

19 The now operative s 63 is in the following terms:

63 Right of appearance

(1) A person entitled to appear before the Court may appear in person, or by an Australian legal practitioner, or (except in proceedings in Class 5, 6 or 7 of the Court's jurisdiction) by an agent authorised by the person in writing.

(2) Despite subsection (1), a person may not appear before the Court by an agent except with the leave of the Court.

(3) In determining whether to grant leave for a person to appear by an agent the Court is to consider:

(a) whether the agent has provided the person with the information required by the rules, and

(b) whether granting leave is in the best interests of the person.

(4) Leave granted under this section may:

(a) be granted subject to conditions, and

(b) be revoked at any time for any reason.

 

20 The significant change in s 63 [as it has had effect for new proceedings (of relevant types including that of these proceedings) since 28 October 2012] is that leave of the Court is now required before an agent can appear for a person in proceedings.

21 In my view, the matters mandated to be considered by s 63(3) do not constitute some limiting codification of the proper range of matters permitted to be taken into account in any s 63(2) determination of whether or not to grant leave.

22 For example, it would be relevant in any proceedings where such leave was sought, in my view, for any person constituting the Court to consider not only the competence of the proposed agent but also whether or not the Court could trust what was being put to it by that proposed agent. A further example would be whether permitting such an agency would further the overriding purpose for civil litigation contained in s 56 of the Civil Procedure Act 2005 (the Civil Procedure Act) to facilitate the just, quick and cheap resolution of the real issues in the proceedings.

23 The alteration to the provisions concerning representation by agents has given the Court the ability to provide, through the Court Rules, for proper levels of disclosure by agents, to those they propose to represent, of a range of matters that are generally analogous to those required of members of the legal profession (whether barristers or solicitors).

24 The Land and Environment Court Rules (Amendment No 1) 2013 was published on the NSW legislation website on 15 February 2013 and took effect on that day. This new rule requires matters listed in the rule to be disclosed to the principal(s) by persons seeking leave to appear as an agent. It is in the following terms:

7.7 Granting of leave for a person to appear by agent

(1) For the purposes of section 63 (3) (a) of the Act, the following information is required to be provided by an agent to the person for whom the agent wishes to appear:

(a) that the person is under a duty to assist the Court to further the overriding purpose of facilitating the just, quick and cheap resolution of the real issues in the proceedings and, to that effect, to participate in the processes of the Court and to comply with directions and orders of the Court,

(b) that the person is under a duty to take reasonable steps to resolve or narrow the issues in the proceedings,

(c) that the agent must not, by the agent's conduct, cause the person to be in breach of a duty referred to in paragraph (a) or (b),

(d) that the Court may take into account any failure to comply with a duty referred to in paragraph (a), (b) or (c) in exercising a discretion with respect to costs,

(e) that the Court may make a costs order against the person in proceedings to which rule 3.7 applies if the Court considers it fair and reasonable in the circumstances and in any other proceedings if the person is unsuccessful,

(f) the knowledge and experience of the agent with respect to the type of matter that is the subject of the proceedings,

(g) whether the agent proposes to charge for the agent's services and, if so, the agent's proposed written costs agreement, a written estimate of the likely total of the agent's charges and the likely disbursements to be incurred by the person.

Note. Section 63 (3) of the Act provides that in determining whether to grant leave for a person to appear by an agent the Court is to consider:

(a) whether the agent has provided the person with the information required by the rules, and

(b) whether granting leave is in the best interest of the person.

(2) Before the Court determines whether to grant leave for a person to appear before the Court by an agent, the agent must acknowledge to the Court in writing, unless the Court waives the writing requirement, that the agent has provided the information referred to in subrule (1) to that person.

25 As can be seen from the provisions of Rule 7.7(2), the Court is to be provided with written confirmation by the proposed agent that the necessary disclosures have been made. The Court is, in addition, given a general discretion to waive the requirement for such written disclosure if the circumstances of the particular case make this appropriate.

26 For example, in applications made under the Trees (Disputes Between Neighbours) Act 2006, where the overwhelming bulk of proceedings involve at least one self-represented party (and frequently self-represented applicants and respondents in the same proceedings), it is not unusual for one person to speak on behalf of both members of a domestic partnership or for a daughter or son to speak on behalf of one or both parents.

27 In these circumstances, it is unlikely that written disclosure of the nature provided for in rule 7.7(1) will be required and appropriate verbal disclosure (including on site at a hearing) will suffice. A simple form is used by the Court to provide authorisation for the agency or, commonly, for the requirement for any written authorisation to be dispensed in the particular circumstances.

28 For persons such as Mr Creighton who make a commercial business of representing parties to proceedings, it might not ordinarily be appropriate to waive the requirements of Rule 7.7(2). However, each application for leave will need to be determined as and when it is made.

Mr Creighton's initial participation

29 The inappropriateness of Mr Creighton's behaviour in these proceedings provides a demonstration of why disclosure should be required to be made and the desirability of the Court having the power either to limit the appearance of an agent (as was done by the Assistant Registrar in these proceedings as described more fully later) or refuse leave, completely, if the person seeking to appear as an agent acts in an inappropriate fashion.

30 To enable a complete understanding of Mr Creighton's conduct in these proceedings, I have arranged for the relevant portion of the recording of the Registrar's directions hearings for 7 May 2013 (this being the first return date in these proceedings) to be transcribed. I have also had the transcript taken out of the hearing before me on 25 June.

31 On 7 May, the Assistant Registrar enquired of Mr Creighton where was the written confirmation, pursuant to rule 7.7(2), of the disclosure to Mr Davies of those matters required by rule 7.7(1) of the Court Rules. The exchange between the Assistant Registrar and Mr Creighton concerning the written confirmation of the appropriate disclosures, as required by rule 7.7(2) is in the following terms:

CREIGHTON: Ross Creighton, agent for the applicant, Registrar, and I seek leave to represent as agent in Court. I've made application in writing.

REGISTRAR: Have you provided the relevant information required under Rule 7.7 for the client?

CREIGHTON: Yes, Registrar.

REGISTRAR: And you put that in writing to say so?

CREIGHTON: Yes, I have, Registrar.

REGISTRAR: Where's that, has that been filed?

CREIGHTON: On the file.

REGISTRAR: It doesn't actually say that, Mr Creighton. The client has basically consents to you acting as agent. There's nothing on file that you acknowledge to the Court in writing that you've provided the required information to the client.

CREIGHTON: I do have a letter there, Registrar, filed at the time of

REGISTRAR: So you have filed it with the Court?

CREIGHTON: Yes, I have.

REGISTRAR: Have you got a copy of it, Mr Creighton?

CREIGHTON: No, I didn't bring it in, sorry, Registrar.

REGISTRAR: I don't have it on file so it could be somewhere in transit, so I'll grant you leave to appear at the directions only at this stage.

CREIGHTON: Thank you, Registrar.

32 As there was no letter, in fact, on the Court file, the Assistant Registrar made the following notation on the file coversheet:

Letter filed with Court re 7.7(2) but not on file. Grant leave to appear at Directions only

33 The transcript of the ensuing elements of the Registrar's direction hearing in this matter is in the following terms:

REGISTRAR: Yes, Mr Nash?

NASH: Registrar, the parties had some consent orders, could I hand a copy up? It's proceeding under the provisions of s 34AA being an application for a carport structure attached to a residential dwelling. If the dates are convenient to the Court, I note that it currently indicates the 18th and the 19th, however, the parties can't find mutual agreement on those, but 24 to 26 June would be suitable to the parties, either the 24th and 25th or alternatively the 25 and 26 June is suitable.

REGISTRAR: So we've got the 24th and the 25th, Mr Creighton.

CREIGHTON: Thank you, by consent, thank you, Registrar.

REGISTRAR: So I'll just change that to 24 and 25 June 2013, and that's direction 1.

NASH: It's a matter where the parties are not proposing to lead any expert evidence.

REGISTRAR: I see that. I'll make the orders in accordance with the document that's been handed to the Court, and I note that the matter is listed for a s 34AA on 24 and 25 June commencing on site, thank you.

34 The Assistant Registrar also made the following notation on the file coversheet:

No expert evidence

35 It is clear from Mr Creighton's silence on this point that there was an agreement between Mr Creighton and Mr Scott Nash that there would be no expert evidence relied upon in these proceedings. The formal directions given by the Assistant Registrar (and embodied in the Short Minutes of Order that are in the Court's file), relevantly, omit all of the directions that would conventionally be made concerning provision of expert reports; joint conferencing between experts and the provision of a joint expert report. There was no grant of leave to adduce expert evidence pursuant to rule 31.19 of the Uniform Civil Procedure Rules 2006 (UCPR).

36 As can be seen from the transcribed extract, the Assistant Registrar set the matter down for a conciliation conference pursuant to s 34AA of the Court Act - setting it down to commence onsite at 9.30am (that being the Court's customary practice in such matters) on Monday 24 June.

The period until the site inspection

37 For the next six weeks or so, until the Thursday immediately prior to the Monday appointed for the onsite conciliation conference, there is no record of any activity in the Court concerning these proceedings. What exchanges, if any, may have taken place between the parties are unknown to me and are matters, if such exchanges occurred, that can only be of relevance to the parties. If Mr Creighton purported to act as Mr Davies' agent in the proceedings during this period (although he had no leave to do so after the termination of the Registrar's directions hearings), that is not a matter to detain me in these proceedings.

38 However, on Thursday 20 June 2013, a document dated 20 June was purportedly filed (bearing, on the cover sheet, Mr Creighton's name as the person responsible for the filing). The document's cover sheet describes it as Position Paper For Section 34AA Hearing. The Court's records note the filing as taking place at 10.13am.

39 As was recorded in the subsequent proceedings in the Court (described in more detail later) the opening sentence in this document (which had been prepared by Mr Kerry Nash, a consultant Town Planner who regularly gives expert town planning evidence in the Court - for both applicants and councils), is in the following terms:

This position paper has been prepared on the instructions of Mr Ross Creighton, Agent for the Applicant, Mr Glynn Davies.

40 Although, in the Court proceedings, the document was marked for identification only and, for reasons dealt with later in this decision, was not admitted as evidence, I also noted that the document recorded that Mr Kerry Nash was aware of, had regard to and agreed to be bound by the relevant statutory provisions concerning and code of conduct binding experts taking part in proceedings such as these (MFI A at page 1).

41 A copy of the cover sheet (showing in the top right corner the Court's stamp including the date) is reproduced below:

42 From what followed, a copy was served on the council at 5pm that day. Unsurprisingly, the service of such a document under the euphemism of a position paper (a creature that has no foundation in any statutory provision) that had all the hallmarks of a statement of expert evidence immediately caused concern on the part of the council's legal representatives.

43 The council's solicitor communicated with the Registrar at 11.06am on 21 June, through eCourt (the Courts electronic communication process), in the following terms:

This matter is listed for a s.34AA conference on 24 and 25 June 2013.
I am the employed Solicitor for the Council and I have briefed Mr Scott Nash of Counsel. Ms MayLee Saw has been briefed directly by the applicant's agent, Mr Ross Creighton.
Council was served with an expert report of Mr Kerry Nash at 5pm on 20 June 2013.
At the directions hearing on 7 May 2013, Mr Scott Nash appeared for the Council and Mr Creighton appeared for the applicant, with leave.
Both parties indicated to the Court that they were not relying on any expert evidence in the proceedings. I understand that was noted on the Court transcript.
Council seeks to have the matter urgently listed today where it will seek a direction from the Court that the applicant be diallowed [sic] from relying on the material on the basis that:
1.The applicant agreed it would not be relying on expert evidence;
2.Mr Creighton informed the Court of that fact on 7 May 2013;
3.The Court noted that fact on 7 May 2013
4.No orders have been made permitting the service of any expert evidence;
5.No prior notice has been given of any intention to serve and rely on expert evidence;
6.No joint reporting has thus occurred;
7.Council is prejudiced by the belated proposal to rely on expert evidence.
I have emailed a copy of this communication to Ms MayLee Saw.

44 By this time, the Chief Judge had directed me to hear and dispose of the matter (see s 36(1)(a) of the Court Act). His direction, in addition having me undertake the conciliation process and, if unsuccessful, to proceed to hear and determine the appeal, made me responsible for procedural matters between his assignment to me and the finalisation of the matter.

45 As a consequence, the council's communication was referred to me for response. I examined the file and, in addition to reading on the file cover the earlier notation concerning the limited leave granted to Mr Creighton to act as agent for Mr Davies, I read that the Assistant Registrar had also noted the agreement concerning no expert evidence as set out at [33] to [35] above.

46 Being aware of the fact that, at that time, Mr Creighton did not have leave to appear for Mr Davies (and being aware, from my examination of the file, that no letter of the nature required by rule 7.7(2) of the Court Rules was yet on the file - despite Mr Creighton's statement to the Registrar some six weeks earlier as noted at [31] and [32] above) I expressly considered that it was inappropriate to have the staff of the Listings Section to have contact with Mr Creighton to deal with the council's concerns about the "position paper" document.

47 As a consequence, I had the staff of the Court's Listings Section endeavour to contact the council's solicitor and Ms Saw, as the council's eCourt communication advised she had been retained to act as the applicant's advocate and that she had been briefed directly by the applicant's agent, Mr Ross Creighton.

48 It did not prove possible to make contact with Ms Saw. When this was reported to me, I asked the Listings Section to advise the council's legal representative that the question of the "position paper" would be dealt with the following Monday during the course of the proceedings.

49 It is against this early procedural background that I attended Mr Davies' property in Glenmore Park.

The site inspection

50 Upon my arrival, I had a short discussion with Mr Scott Nash and Ms Saw. It was obvious for this conversation that there was no prospect of any agreement being reached so I terminated the conciliation phase and commenced the determinative process. This conversation, at the commencement of the conciliation phase in these proceedings, was subsequently agreed to be able to be considered in the determinative phase pursuant to s 34(12) of the Court Act.

51 Mr Scott Nash indicated that the council was not prepared to agree to the proposal that was the subject of the appeal (that is for a three car carport structure with two of the carports to be located to the front of the existing double garages of the property with the third carport to be of a rhomboid shape because of the shape of the allotment and located to the rear of the building line at the side of the current garages).

52 To enable an understanding of the proposal, an extract from the plans (properly drawn plans that were subsequently relied on pursuant to leave granted without opposition - see below at [78]) is reproduced below:

53 In response to my question of what the council might agree to, Mr Scott Nash indicated that a single carport at the side of the garages and behind the building line would be acceptable. Ms Saw sought instructions on whether such a single carport was acceptable to Mr Davies and was advised that it was not. As the difference between the parties was stark, uncomplicated and there was absolutely no discernable compromise capable of acceptance by both parties, I terminated the conciliation process and indicated that I proposed to proceed to determine the matter.

54 Having taken this step, I then indicated that there were a number of procedural matters that were of concern to me, including the issues relating to the "position paper" prepared by Mr Kerry Nash. I informed Mr Scott Nash and Ms Saw that these were such, when taken together, I proposed to return the matter to Court later that day.

55 I informed them that, prior to returning to Court, I proposed that I inspect any examples of carports in the front setback in the vicinity of Mr Davies' dwelling that were ones upon which Mr Davies' case sought to rely.

56 I also indicated that I did not propose to let Mr Kerry Nash participate in the proceedings, in any fashion, until I had dealt with the question of whether or not he should participate and, if so, on what basis, as part of the procedural matters to which I proposed to turn my attention after returning to Court.

57 Ms Saw indicated that there were four structures within walking distance of Mr Davies' house that she wished me to inspect. I inquired as to whether one of them was in Kiber Drive, the street in which Mr Davies' residence is located, and I was advised that this was so. I indicated that I had driven past that structure on my way to the site. I inquired as to whether a further inspection of it was necessary. Both Mr Scott Nash and Ms Saw indicated that they did not require a further inspection of that structure and were content to rely upon my observation on it as I drove to the site.

58 I then undertook a walk around the streets in the vicinity of Mr Davies' house to observe the three further carports in front of dwellings that Ms Saw said that were relevant to the appeal. As a consequence, the four structures actually observed by me has been relied upon in support of Mr Davies' appeal were located at:

• 23 Kiber Drive;
• 38 Bujan Street;
• 10 Dungara Crescent; and
• 31 Dungara Crescent.

59 I note, for completeness in the context of the procedural matters with which it has proved necessary to deal, that Mr Creighton was present throughout this process but did not endeavour to speak to me before or during the walkabout. At the conclusion of the walkabout, I adjourned the matter to Court at 12 noon on the same day.

"Appearing" - the process

60 Solicitors who initiate proceedings appear as a consequence of the filing of the initiating process. The proper practice for solicitors appearing for a respondent is to file a Notice of Appearance that makes them the respondent's representative on the record of the Court. Having filed the initiating process or having filed such a Notice, such solicitors or firms of solicitors continue that appearance in undertaking the filing and serving of documents and undertaking such other procedural court activities as may be necessary preliminaries to the hearing.

61 They do not foreswear that appearance if they retain a barrister to act as the advocate in the proceedings - they continue to "appear", in my opinion, through that barrister.

62 It is also appropriate now to record my opinion that the word "appear" as used in s 63 of the Court Act is used in a fashion analogous to that for lawyers, whether barristers or solicitors or firms of solicitors that provide advocacy services or those solicitors who provide support to barristers who are briefed to act as advocates in proceedings.

63 I consider the word "appear" as it applies to agents through the terms of s 63 of the Court Act extends to the full range of activities that are associated with the Court-based activities in the proceedings.

64 The question of whether such an agent can act as an intermediary between a party in whose name proceedings have been commenced and a barrister engaged to act as an advocate for that party is a matter to be considered by others in the context of the statutory regime for the legal profession and the Barristers' Rules or the Solicitors' Rules (as appropriate). From my own past experience as a barrister prior to my appointment as a Commissioner of the Court, I had always understood that a barrister could only be instructed to appear in court in one of two ways, they being either by acceptance of a direct access brief from a party to the proceedings or by accepting a brief by an instructing solicitor.

65 It is appropriate to record, before embarking on further exploration of procedural issues in these proceedings, that those acting as advocates are requested to fill in a bench sheet to provide the presiding member of the Court with details of who they are and who is giving them instructions in the proceedings.

The proceedings in court

66 At the commencement of the court hearing in this matter, a bench sheet was provided to those acting as advocates to record their details together with the details of those instructing them and of their proposed witnesses. The bench sheet in these proceedings is reproduced below:

67 I indicated that Mr Creighton had been granted leave by the Assistant Registrar to appear solely for the purposes of that directions hearing and did not extend beyond that time. I indicated that the letter that Mr Creighton had informed the Assistant Registrar had been sent to the Court to satisfy rule 7.7(2) was still not on the Court's file. I indicated that I was concerned that, in addition, Mr Creighton (or someone on his behalf) had purported to file a document from Mr Kerry Nash that was clearly intended to be an expert report to be used in the proceedings (even though it was described as a "position paper") and that this was contrary what took place before the Assistant Registrar - see [31] and [32]).

68 I then observed Mr Creighton provide Ms Saw with a document that she sought to tender as a copy of the letter upon which Mr Creighton relied as being in satisfaction of rule 7.7(2) of the Court Rules. The document was admitted as evidence as Exhibit B.

69 To enable a proper understanding of my comments that will follow concerning this letter, a copy of the letter is reproduced below:

70 There are a number of observations that I must make concerning this letter.

71 First, it is dated 19 March 2013, approximately a month before the proceedings were commenced. As a consequence, it does not have any Matter Number contained in it and thus, if it had been received by the Court, would not be able to be placed on the Court's file when the matter was first initiated.

72 Second, in light of the fact that there was no Matter Number for reference and the letter had not found its way to the Court file, I requested the Registrar to examine the general correspondence records of the Court to see if such a letter had been received and, if so, what had happened to it - given the absence of any case identifying material contained in it. In response, she has been advised by one of her senior staff as follows:

I have looked at the generic mail box around 19 March and also around the time of lodgment 16 April but cannot see anything that relates to this matter, nor emails from Mr Creighton. I have checked everyone's desk in Client Service and we are unable to find any correspondence from Mr Creighton.

73 Third, to take the matter at its highest for Mr Creighton (by assuming that the letter was sent and received and has been inadvertently both misplaced and not recorded in any of the Court's systems), the express terms of the letter cannot act in satisfaction of the requirements of rule 7.7(2) of the Court Rules. There is no possible construction of the words contained in the document reproduced above that could be regarded as an affirmation that those matters required to be disclosed to Mr Davies by rule 7.7(1) had been so disclosed - this being the necessary requirement for such a letter to be used in satisfaction of the requirement in rule 7.7(2) that such disclosure be identified, in writing (unless otherwise waived by the Court).

74 During the course of the proceedings in Court, after the tender of this letter, I indicated that such letter could not be accepted as satisfaction of rule 7.7(2) and that the absence of a compliant letter, together with Mr Creighton failure to observe the agreement that there be no expert evidence in the proceedings, caused me to conclude that I would not grant him leave to appear as Mr Davies' agent in the proceedings.

75 I now interpose that the late filing and service of Mr Kerry Nash's "position Paper" is, in my view, particularly egregious breach of the no expert evidence agreement because of the extreme lateness of the breach - service of the document on the council being at the close of business on the Thursday prior to a Monday onsite start and over six weeks after the agreement was made with the council's counsel that there would be no such evidence in these proceedings.

76 I then granted Ms Saw a short adjournment to permit her to discuss the resultant position with Mr Davies.

77 At the conclusion of that adjournment, Ms Saw advised me that she now appeared on Mr Davies' behalf pursuant to her acceptance of a direct access brief from him for that purpose. Ms Saw's now appearing on this basis permitted me to continue to hear and determine the appeal on a proper procedural basis.

Amendment to the plans

78 During the course of the hearing, Mr Scott Nash pointed out that, in addition to the plans that had been submitted to the council and were the subject of the refusal, the application that had been lodged by Mr Creighton on Mr Davies behalf included a second set of plans that differed from the first - in that these second plans had been professionally drawn - but were nonetheless generally reflective of Mr Davies' hand-drawn ones.

79 The second plans were ones for which no application had been made for leave to amend the application to substitute them in lieu of the hand drawn plans that had been submitted to the council. Mr Creighton had, obviously, simply filed two, slightly different, plans as part of the application without checking what plans were subject of the rejected development application (and thus able to be subject to an appeal to the Court) or whether there was an additional set of plans for which it was necessary, before they could be relied upon, for the leave of the Court to be sought and granted. This, in my view, is a further example of a basic failure by Mr Creighton (whether by commission or by omission) to observe a fundamental procedural requirement in an appeal such as this.

Mr Creighton's post hearing communication

80 To complete the broad discussion of procedural matters, I should note that I received, emailed to the Court on 2 July, a copy of an unsigned letter (on Mr Creighton's company's letterhead) concerning these proceedings. A copy of that letter is reproduced below:

81 There are three observations to be made concerning this document. These are:

• The cover sheet of the position paper (reproduced above at [41]) makes it clear that, whether or not the document was filed personally by Mr Creighton, it was clearly filed in these proceedings on his behalf;
• The opening sentence of Mr Kerry Nash's position paper makes it clear that it was commissioned by Mr Creighton for the purposes of these proceedings; and
• In the letter, Mr Creighton asserts that he did not undertake any activities with respect to this position paper on or about 14 June. That statement is undoubtedly correct. However, the copy of the coversheet of the position paper clearly discloses that the document was filed on 20 June and the communication from the council's legal representative also makes it clear that it was served on that date. A careful examination of the Court's file makes it clear that no procedural matters involving Mr Creighton's actually occurred on or about 14 June.

82 This letter is therefore entirely irrelevant to my overall concerns about Mr Creighton's conduct. If Mr Creighton was, in fact seeking to refer to events of 20 June, the letter discloses inattention to detail (at best). If it intended to refer to 14 June, it is irrelevant (again at best).

The scope of s 56 of the Civil Procedure Act 2005

83 The foundational objective of civil litigation (which includes merit appeals such as these proceedings) is contained in s 56 of the Civil Procedure Act. The section is in the following terms:

56 Overriding purpose

(1) The overriding purpose of this Act and of rules of court, in their application to civil proceedings, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings.

(2) The court must seek to give effect to the overriding purpose when it exercises any power given to it by this Act or by rules of court and when it interprets any provision of this Act or of any such rule.

(3) A party to civil proceedings is under a duty to assist the court to further the overriding purpose and, to that effect, to participate in the processes of the court and to comply with directions and orders of the court.

(3A) (Repealed)

(4) Each of the following persons must not, by their conduct, cause a party to civil proceedings to be put in breach of a duty identified in subsection (3):

(a) any solicitor or barrister representing the party in the proceedings,

(b) any person with a relevant interest in the proceedings commenced by the party.

(5) The court may take into account any failure to comply with subsection (3) or (4) in exercising a discretion with respect to costs.

(6) For the purposes of this section, a person has a relevant interest in civil proceedings if the person:

(a) provides financial assistance or other assistance to any party to the proceedings, and

(b) exercises any direct or indirect control, or any influence, over the conduct of the proceedings or the conduct of a party in respect of the proceedings.

Note. Examples of persons who may have a relevant interest are insurers and persons who fund litigation.

(7) (Repealed)

84 Of particular relevance, in these proceedings, are the provisions of ss 4(a) and (5). Although these provisions do not fetter the broad costs discretions that are applicable in Class 1 proceedings in this Court (see Grant v Kiama Municipal Council [2006] NSWLEC 70), this element of s 56 does provide a cautionary warning to members of the legal profession.

85 It does not, however, deal, in its terms, with the position of agents appearing in proceedings in this Court after having been granted leave to do so pursuant to s 63 of the Court Act. It may well be appropriate, in light of the matters that have been canvassed in this preliminary section of this judgement, that consideration might need to be given to incorporation specifically of a provision in the subsection to make it expressly clear that agents are subject to the same costs exposures for their conduct as are members of the legal profession (whether barristers or solicitors).

Concluding comments concerning Mr Creighton's behaviour

86 Before turning to consider what is, as I noted at the outset of this procedural discursion, a modest and uncomplicated planning appeal, there are a number of further comments I feel compelled to make concerning Mr Creighton's behaviour.

87 Although barristers and solicitors have express obligations to the Court, as officers of the Court, it is also reasonable for the Court to expect a proper level of knowledge of and compliance with the rules governing the Court's processes (whether under the UCPR or the Court Rules) by those persons who seek leave of the Court to appear as agents pursuant to s 63 of the Court Act (at least if such appearance is sought in the more structured processes of a development application appeal - more informality and flexibility is likely in tree disputes (see [26] and [27]).

88 The promulgation and commencement of rule 7.7 - the new rule concerning disclosure requirements for agents - appeared as a news item on the opening page of the Court's website together with a link to the terms of the rules themselves. It is, in my opinion, entirely reasonable to expect that a person such as Mr Creighton who seeks to act as an agent and who frequently initiates appeals in Class 1 of the Court's jurisdictions to be aware of - and comply with - the terms of the Court Rules, including, importantly in this context, the obligation to advise the Court, in writing (unless the Court were to waive that requirement), that the provisions of rule 7.7(1) had been complied with.

89 To provide fairness to Mr Creighton, for the purposes of the comments that I now make, I propose to assume that Exhibit B was sent and that Mr Creighton believed that it had been received.

90 On that basis, the best possible construction that can be placed on the assertion (made by Mr Creighton to the Assistant Registrar on 7 May) that he had written a letter to the Court that satisfied the terms of rule 7.7(2) is either that Mr Creighton does not understand the express terms of that provision of the Court Rules, or that he has understood it but decided not to comply with it.

91 As a consequence, the nature and timing of the breach of the agreement with the legal representative of the council concerning there being no expert evidence in the proceedings, rendered it, in my view, not appropriate to grant leave for him to appear as Mr Davies' agent in these proceedings. Indeed, in light of all the matters set out above, I also consider that it was not in the broader public interest to permit Mr Creighton so to appear.

Mr Davies' proposed carport

The relevant planning framework

92 In its Statement of Facts and Contentions, the council has contended that Mr Davies proposed carport is not compatible with:

• the existing residential character of the area;
• the existing amenity of the area; and
• the existing outlook of the area.

93 It is against those three, broad-brush contentions (ones particularised by reference to provisions of the Penrith Local Environmental Plan 1998 (Urban Land) (the LEP) and the Penrith Development Control Plan 2006 (the DCP) provisions said to be relevant by the council) that I turn to set out the provisions of those two documents relied upon by the council.

94 At the outset, it is appropriate to note that Mr Davies' house falls within the Zone 2 (B) Residential (Low Density) zone in the land use table of the LEP. There are three zone objectives for this zone with the council submitting that Mr Davies' proposal is contrary to the second of those objectives, an objective that reads:

(ii) to promote the established urban and landscape character of traditional residential subdivisions by limiting the range of permissible uses,

95 In the list of permitted uses within this zone, "building or other structures ordinarily associated with dwelling houses" are permissible with development consent. Mr Davies' carport is, therefore, potentially capable of approval when assessed against other relevant provisions of the LEP and against relevant provisions of the DCP.

96 The other provisions of the LEP that are said by the council to be relevant are said to be contained in three other clauses of the LEP. The first, cl 7, sets out the aims and objectives of the LEP where the council raises the following:

(e) Residential character

(i) to promote the community's desired character by ensuring that future development in all residential localities reflects features or qualities of traditional detached houses that are surrounded by private gardens, and

(ii) to enhance the essential character and identity of established residential areas,

97 Second, the council also presses the broader provisions in cl 9 concerning zone objectives and the development control table. The relevant provisions of cl 9 are in the following terms:

(2) Except as otherwise provided by this plan, the council must not grant consent to development of land to which this plan applies unless the council:

(a) is satisfied that the carrying out of such development is consistent with:

(i) the aims of this plan, and

(ii) the objectives of the zone within which the development is to be carried out, and

(iii) the objectives of the development controls contained within this plan, and

(b) has considered the objectives of any development control plans applying to the land.

98 Finally, of the provisions in the LEP, the council relies on three elements of cl 14, Provision for design principles in development generally. The three elements of this clause upon which the council relies on the following terms:

(b) reflection of the forms, features or qualities of traditional residential neighbourhoods across Penrith local government area,

(c) consistency or compatibility with the scale, design and amenity of neighbouring development,

(d) contribution to attractive streetscapes through the diversity of building forms and landscaped areas that can be seen from any public place nearby

The Development Control Plan

99 The DCP came into force on 15 December 2006. It contains no savings provision. Although it has been amended since the original operative date, none of the amendments are relevant in these proceedings. As a consequence, any carport construction approved after that operative date was subject to the provisions set out below whilst any carport structure that was erected prior to that date (whether or not such a structure had been granted development consent by the council) was not subject to those provisions of the DCP. This is of particular relevance when considering a range of others structures within Glenmore Park upon which Ms Saw relies as providing foundational precedents to support this application.

100 As a matter of broad structure, DCP includes what are described as "mandatory controls" and "advisory controls". These concepts are defined in the DCP in the following terms:

C. Mandatory Controls

Mandatory provisions of this Section will be required to be met by all developments and, if applicable, will follow either the objectives or the rationale. These are supported by detailed principles and deemed to comply design solutions that will meet the objectives or detailed principles. Illustrations that demonstrate either principles or design solutions may also be included on the left-hand side of the page.

D. Advisory Controls

Where they are included in the clause advisory controls will either follow the mandatory controls or will follow the objectives or rationale. Like the mandatory controls the advisory controls are also supported by detailed principles and deemed to comply design solutions that will meet the objectives or detailed principles.

Illustrations that demonstrate either principles or design solutions may also be included on the left-hand side of the page.

101 The relevant portion of the DCP that requires consideration in assessing Mr Davies' application is contained in Part 4.2 Residential - Single Dwellings. Within Part 4.2 of the DCP, there are provisions dealing with front and side setbacks for residential development. This element of Part 4.2 (contained in 5.3 of the Part) contains an objective for this set of setback provisions. That objective is in the following terms:

A. Objective

Setbacks are to reflect the character of established garden suburbs, and provide for development of flora and fauna corridors.

102 There then follows an explanatory note that it is described as providing the rationale for the setback provisions. That explanatory note is in the following terms:

B. Explanatory Notes - Rationale

Planning of new developments should recognise the configuration of buildings, gardens and private open spaces on neighbouring allotments.

103 Finally, and critically, in the mandatory controls for setbacks, there appears mandatory control number 5, a control in the following terms:

Garages and parking spaces are not permissible within the front setback, other than stacked parking or driveways leading to a garage.

104 The parties conducted the proceedings on the implicit assumption that "garages" in this mandatory control encompassed carports - an assumption I consider appropriate in the broader context of Part 4.2 of the DCP.

The weight to be given to the DCP

105 Mr Davies' application was lodged with the council on 23 May 2012 and is therefore not one subject to the 2012 amendments to the EPA Act concerning development control plans.

106 As to the emphasis I should give to the DCP, Zhang v Canterbury City Council [2001] NSWCA 167; (2001) 115 LGERA 373 deals, inter alia, with the issue of consideration of relevant provisions of a DCP in determining whether to grant development consent. From what was said in Zhang by Spigelman CJ at para 75, three propositions emerge. First, although the Court has a wide-ranging discretion, the discretion is not at large and is not unfettered. Secondly the provisions of a DCP are to be considered as a fundamental element in, or a focal point to, the decision-making process particularly, if there are no issues relating to compliance with the Local Environmental Plan. Thirdly, a provision of the DCP directly pertinent to the application is entitled to significant weight in the decisionmaking process but it is not in itself determinative.

107 My assessment, however, must be made after having considered all other matters that are relevant under s 79C of the EPA Act.

The setting and an introduction to the application

108 To commence the consideration of the merits of Mr Davies' application, I need to describe the setting of his property and the suburban context of its location.

109 Turning, first, to the suburban context, Glenmore Park is a comparatively contemporary residential development. It is, from my observation of it during accessing the site and during the site inspection, a suburb dominantly of one and two storey detached dwellings. The suburb is broken into a number of informal precincts (although not being areas so identified in any planning documents in evidence in these proceedings) by several green belts that follow major drainage lines and/or road corridors.

110 Mr Davies' house is located on Kiber Drive, a street accessed at each of its ends by a roundabout on a more major thoroughfare. As a consequence, Kiber Drive itself acts as an element of the local road hierarchy above the level of merely a local street. This is self-evident of the existence of a significant traffic calming chicane on the street to the north of Mr Davies' dwelling and in its immediate vicinity.

111 Glenmore Park, generally, is not laid out in a traditional rectilinear grid fashion but has a more flowing, curving structure to its street patterns. For Kiber Drive, the layout has it winding through the element of Glenmore Park within which it is located. Mr Davies' dwelling is on the eastern side of Kiber Drive and located on the southwest face of an outward curve.

112 The presentation of Mr Davies' dwelling to Kiber Drive is one of a single-storey residence with an L shaped facade addressing the street. In the northern element of this facade (this element being setback approximately 2 m from the forward set element to the south) is located a double garage with living space in the dwelling to its south then the front door, addressing the street, at the elbow in the facade.

113 There is a stencilled concrete driveway, 5 m wide at the kerb crossing, and, on the street frontage at the northern boundary, some modest hedging, a metre or so high, and a low brick wall on or near the front boundary.

114 It was Mr. Davies' evidence that his household owns five cars and that these are necessary because of a lack of public transport.

115 He says that there is sufficient parking space in the driveway and to the northern side of the front of his dwelling to fit the three vehicles not able to be accommodated in the double garage. Mr Davies also gave evidence, informally during the course of the site inspection, that he considered it was necessary to have a covered area for these additional vehicles as his wife suffers from muscular dystrophy and he considers it necessary that it be possible for her to access a vehicle undercover.

Revision of the Planning Principle in Pafburn

116 As noted immediately above, Mr Davies' case is, in part, based on what is described as the necessity for the structure as his wife is suffering from muscular dystrophy. In the submissions on this point, the planning principle that was established by Roseth SC concerning, inter alia, "necessity" was raised as potentially relevant. That planning principle, set out in Pafburn v North Sydney Council [2005] NSWLEC 444 at [26], is in the following terms:

Planning principle: criteria for assessing impact on neighbouring properties

26 The following questions are relevant to the assessment of impacts on neighbouring properties:

• How does the impact change the amenity of the affected property? How much sunlight, view or privacy is lost as well as how much is retained?
• How necessary and/or reasonable is the proposal causing the impact?
• How vulnerable to the impact is the property receiving the impact? Would it require the loss of reasonable development potential to avoid the impact?
• Does the impact arise out of poor design? Could the same amount of floor space and amenity be achieved for the proponent while reducing the impact on neighbours?
• Does the proposal comply with the planning controls? If not, how much of the impact is due to the non-complying elements of the proposal?

Emphasis added

117 The particular words that are of concern to me are "necessary and/or" contained in the second dot point.

118 Whilst I accept that, in some fundamental terms, some matters may be "necessary" for a development (such as potable water supply and proper sanitation, for example, for a residence), it seems to me that these would, in any event, be taken into account in assessing the reasonableness of any proposal.

119 The present language, in my view, raises the risk - through the separation of necessity from reasonableness - of an anthropocentric interpretation of this element of the planning principle.

120 It is long established law that proper planning decisions are not made on such a basis. Development consents run with the land and proposals for consent are to be assessed in that light rather than by consideration of what might be "necessary" for any present or proposed occupants or the beneficiaries of any consent.

121 I have, therefore, undertaken the internal consultation process for consideration of the establishment of a new planning principle or the revision of an existing planning principle. As a result of that consultation, it is appropriate to refine the published planning principle to delete the words "necessary and/or" so that the revised planning principle will, in future, read:

Revised planning principle: criteria for assessing impact on neighbouring properties

The following questions are relevant to the assessment of impacts on neighbouring properties:

• How does the impact change the amenity of the affected property? How much sunlight, view or privacy is lost as well as how much is retained?
• How reasonable is the proposal causing the impact?
• How vulnerable to the impact is the property receiving the impact? Would it require the loss of reasonable development potential to avoid the impact?
• Does the impact arise out of poor design? Could the same amount of floor space and amenity be achieved for the proponent while reducing the impact on neighbours?
• Does the proposal comply with the planning controls? If not, how much of the impact is due to the non-complying elements of the proposal?

Admission of evidence

122 Mr Scott Nash indicated that the council objected to the tendering of the position paper prepared by Mr Kerry Nash and its use as a statement of expert evidence. Mr Scott Nash indicated that the council was prejudiced not merely because of the preparation of this document contrary to the agreement that there would be no expert evidence but also because the lateness of service did not permit an adequate time for the council to respond (although it had taken some limited steps in that regard). After I indicated my concern about the extreme lateness of service of the document (for which no explanation was offered on behalf of Mr Davies) and the fact that the council had proceeded on the basis of Mr Creighton's agreement at the directions hearing that there would be no expert evidence, Ms Saw did not seek to tender the document.

123 Ms Saw did seek to tender a bundle of photographs, taken by Mr Davies, of other carport structures within the wider Glenmore Park developed area. Mr Scott Nash objected to these photographs as they had formed a part of the position paper prepared by Mr Kerry Nash. I rejected the objection as they were Mr Davies' photographs and those photographs were admitted and became Exhibit D.

124 Ms Saw also sought to tender an aerial photograph of the wider Glenmore Park developed area. This aerial photograph had been prepared by Mr Kerry Nash to identify the locations of the various carport structures that had been photographed by Mr Davies. Although Mr Scott Nash objected to the tender of this marked up air photo, I admitted it and it became Exhibit E. I permitted the document to be admitted as evidence, despite the fact that it had been prepared by Mr Kerry Nash as part of the position paper. I did so for two reasons:

• The document merely identified a variety of locations and did not, by doing so, provide any opinion evidence concerning those locations; and

• As the underlying photographic evidence had been prepared by Mr Davies, not to permit easy identification of the relative locations of the various structures when compared to the location of Mr Davies' property would have been to prejudice him, inappropriately, merely as a consequence of Mr Creighton's conduct.

Consideration of the planning issues

125 Although a combination of Mr. Davies' photographs and the marked up to airflow to provide information about 20 other carport style structures in Glenmore Park, I only care if detailed information about the development consent status (if any) of 15 of those 20 locations. Of the 15, three of them have no development approval whatsoever and are, therefore, to be set aside in their entirety. Of the remaining 12, 11 have development consent and one has a building certificate. The air photo is reproduced below:

126 It makes it clear that, in broad terms, there are four "clusters" into which these structures might be grouped. They are:

• Locations 1 to 4;
• Location 6 (an outlier);
• Locations 10 to 15; and
• Locations 16 to 20.

127 Five of the structures photographed by Mr. Davies are located behind the front facade of the dwelling with which they are associated. These, locations 5, 7,8, 9 and 13, have not been included on the air photo that became Exhibit C.

128 A cursory examination of the air photo shows that locations 2, 3 and 4 are in sufficiently close proximity to Mr. Davies dwelling potentially to be considered, at its most generous interpretation, as possibly being "neighbouring development". The carport at 23 Kiber Drive (location 1 on the air photo) might potentially be taken into account, and its broadest and most charitable (indeed stretched) interpretation as fitting within the concept of neighbouring development for the purposes of cl 14 of the LEP.

129 However, for the reasons discussed later, none of these can, as a matter of proper contextual interpretation, be considered as being "neighbouring development".

130 It is clear that the remainder are sufficiently remote that they could not, at the greatest degree of elasticity, be regarded in any fashion as warranting consideration as constituting neighbouring development. As a consequence, for the purposes of cl 14 of the LEP, they provide no assistance whatsoever to Mr. Davies.

131 Further, with respect to all of those more remote structures (except for locations 14 and 16), all of the approvals (where there are approvals) predated the coming into force of the current (and applicable) DCP that incorporated the prohibition on such structures in the front setback. These structures, no matter where located, provide no precedential comfort, either, to Mr. Davies application.

132 Of the structures in what might be described as the Kiber Drive precinct (that is locations 1, 2, 3 and 4), three of them (locations 1, 2 and 4) were also approved prior to the coming into effect of the DCP in mid-December 2006. For the final of these, the structure at 23 Kiber Drive (location 3), its development application was lodged on 30 November 2006 and it was approved on 29 December 2006, two weeks after the DCP came into effect. It is reasonable to assume, in my view, that this application was processed under the former planning controls (despite the absence of any savings provision in the 2006 DCP). Whether or not this is the case, it is a single, isolated incident of approval of such a structure and could not conceivably be regarded as representative of any pattern showing any regularity or consistency by the council of it not observing the prohibition set out in [103] above (see Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472 at [87]).

133 There is, therefore, no assistance provided to Mr. Davies in any rational fashion whatsoever by any of the structures elsewhere as providing a basis to set aside the prohibition in the DCP.

134 Looked at, solely, through the lens of the DCP's provisions, there is no basis upon which that element of his proposed structure that is forward of the facade of the building could be approved. That, however, is not the end of the matter. Consistent with what was said in Zhang, it is also necessary to consider the broader parameters arising from the LEP, particularly the provisions of cl 14(c) and (d).

135 Having earlier explained why, at its most charitable, only four structures could possibly be contemplated as falling within the concept of "neighbouring development" provided for in cl 14 of the LEP, it is now appropriate to explain why none of them can, in fact, be so regarded (setting aside, entirely, the dates of approval of these structures as earlier discussed).

136 First, the structure at 23 Kiber Drive is some 350 m as the crow flies (and longer when traversing Kiber Drive to its location) from Mr. Davies' dwelling. It is some 20 or so dwellings away around a bend and a right angle corner. It is clearly not neighbouring development. The other three (locations 2, 3 and 4) are not visible from Mr. Davies' residence and are on minor streets with those at locations2 and 3 being up hills and not readily visible from Kiber Drive whilst that at location 4 is up a hill and round a significant bend. It is also not visible from Kiber Drive.

137 At its broadest, in my opinion, the expression "neighbouring development" in this context must necessarily encompass not only the dwellings that immediately flank Mr. Davies' house but also those immediately opposite and some little further removed on each side of Kiber Drive. Essentially, the widest this could be would comprise the dwellings on either side of Kiber Drive within the immediate viewing catchment from Mr Davies dwelling.

138 None of these dwellings have any structures in their front setbacks whatsoever - let alone anything of the nature and extent of the intrusion into the front setback proposed in this application.

139 The proposed structure at Mr. Davies' residence is not only inconsistent with the scale, design and amenity of other neighbouring development but it would also be, by virtue of the extent of its intrusion into the front setback, jarringly inconsistent with and thus incompatible with the scale, design and amenity of neighbouring development. Any rational consideration of Mr. Davies' proposed structure does not permit me to form the opinion required by cl 14 of the LEP that the proposed development has taken into account consistency or compatibility with the scale, design and amenity of neighbouring development.

140 The extent of the inconsistency and incompatibility of the proposed development when compared with the scale, design and amenity of neighbouring development is such that there has never been the remotest prospect of a development of the style proposed by Mr. Davies being approved.

141 I now turn to consider whether it can be said that this proposal would make any contribution to attractive streetscapes through the diversity of building forms and landscaped areas that can be seen from any public place nearby.

142 I have earlier described the location of Mr. Davies dwelling as being on the eastern side of Kiber Drive and located on the south-western face of an outward curve of the road. When travelling along Kiber Drive from south to north, Mr. Davies' dwelling occupies of a prominent location of high visibility as a consequence of the pattern of the street. The proposed structure, with a flat roof and no architectural styling features associated with it, located but a little over 2 m back from the front boundary and 3 m prominent from the closest element of Mr. Davies' dwelling, will impose a jarring and unattractive elements incapable, because of the 5 m width of the driveway, of any effective screening by landscaping.

143 Although Ms Saw suggested that the present modest street frontage landscaping might provide an appropriate degree of softening, the closeness of the structure to the front of the allotment and the width of the driveway to render this an impossibility. As a consequence, it is not possible for me to form the opinion that the proposed development has taken into account contribution to attractive streetscapes through the diversity of building forms and landscaped areas that can be seen from any public place nearby.

144 Further, when assessed against zone objectives and the design principles as relevant in each of cll 9 and 14, the application cannot succeed after such consideration.

145 Clause 9(2) requires me to be satisfied that the carrying out of the proposed development is consistent with both the aims of the LEP itself and with the objectives of the development controls contained in the LEP. The first of these requirements calls up the first and second elements of the objectives of the LEP under the heading Residential character. In addition, the development controls contained in the LEP that are relevant are those earlier set out in [98] arising from the provisions of cl 14 of the LEP.

146 I turn, now, to the provisions of the LEP dealing with matters of residential character. Although the council raised the first of these provisions, I do not consider that it is relevant in the present circumstances as carports can be regarded as features of traditional detached houses and thus not in breach of this objective.

147 However, the same cannot be said in consideration of the second provision requiring me to consider whether the proposed carport enhances the essential character and identity of this established residential area within Glenmore Park. As discussed in more detail earlier in consideration of the matters raised by cl 14, when considered in its proposed streetscape context, Mr. Davies' proposed carport will be a jarring and discordant element in that streetscape, located prominently on a bend for those approaching along Kiber Drive from the south toward Mr. Davies dwelling. The appearance of the proposed structure could not, in any fashion, be regarded as enhancing the essential character and identity of this established residential area - indeed, its effect would be quite to the contrary.

148 There is no basis upon which I could be satisfied that cl 9(2)(a)(i) has been satisfied.

149 The proposal is, self-evidently from any rational examination of the plans in conjunction with a visit to the site, incapable of satisfying the relevant provisions of cll 9 and 14 of the LEP as discussed above. Although, as earlier noted, Mr. Davies will, as a result of these proceedings, achieve a development consent for that small portion of his proposed structure that is setback behind the facade and to the north of the existing dwelling, that has been available to him through conventional council processes from the outset. To the extent that these proceedings sought approval for any structure forward of the facade of his dwelling, they are (and have always been) a futility.

Conclusion

150 As I observed at the commencement of this decision, finalisation of this matter has, because of Mr. Creighton and my refusal to permit him to appear before me, necessitated the preparation of a judgement much lengthier than would ordinarily be warranted by the development proposal being considered.

151 The proceedings have, fortunately, had some additional utility in providing an appropriate opportunity to undertake a revision of the planning principle in Pafburn. However, for the reasons set out earlier, this application (indeed any application) for a carport in the front setback of Mr Davies' property has always been doomed to failure.

152 It follows that, properly advised by a competent town planner, these proceedings should never have been commenced.

153 The outcome that Mr. Davies will achieve through these proceedings is no more and no less than that which would have been available to him had he discussed the option of a more modest proposal, on the northern side of the existing dwelling and behind the building line, with the council officers - without the necessity for the delay or expense of these proceedings.

154 On the other hand, these proceedings have provided an opportunity to review the role of agents in merit proceedings of the Court and, in this fashion, some modest utility may also have been achieved by them.

Conditions of consent

155 The council has provided, as it is obliged to do so, its draft without prejudice conditions of consent. The first of those conditions is based on the assumption that the entirety of the structure is to be approved.

156 The present proposed condition one is in the following terms:

1. The development must be implemented substantially in accordance with the plan stamped approved by council, the application form and any supporting information received with the application, except as may be amended in red on the attached plans and by the following conditions.

157 To give effect to this decision, that condition is to be replaced with one that reads as follows:

1. Development consent is granted to that portion of the proposed structure shown on the Willco Consulting plan dated 9 April 2013 Sheet 1 of 1, Issue A, that is located behind the front facade of the existing dwelling. This development consent does not approve any structure to be erected closer to the front boundary of the property than the facade of the existing dwelling. Subject to the immediate foregoing, the development must be implemented substantially in accordance with the application form and any supporting information received with the application, except as it may be amended by the following conditions.

158 When the council provides a copy of the conditions of consent incorporating the revised condition 1 set out above, I will make orders to uphold the appeal and grant development consent subject to those conditions.

159 I give directions below requiring the council to provide me with an electronic copy of its proposed conditions of consent incorporating the revised condition 1. To ensure that this happens in a timely fashion, I also set the matter down for a further mention before me as provided for in the directions but, as the directions set out, if the conditions are provided electronically in a timely fashion, I will make orders in chambers and vacate the mention.

160 If it is necessary for the mention to proceed, there will be no necessity for Mr. Davies to be burdened with the expense of representation as I will merely need to deal with any failure by the council to provide the conditions of consent.

Directions

161 I therefore give the following directions:

(1) The council is to file, electronically in Word format, a copy of the conditions of consent incorporating the revised condition 1 set out above at [157];

(2) The conditions of consent are to be filed by e-mail to the Court's email address and marked for my attention;

(3) The revised conditions of consent are to be filed by the close of business on Friday 9 August;

(4) The matter is set down for mention before me at 9:30 AM on Tuesday 13 August; and

(5) If directions (1) to (3) are complied with, I will make orders in chambers and vacate the mention.

Tim Moore

Senior Commissioner

Decision last updated: 31 July 2013