Arrage v Inner West Council

Ground 1(a): Asked the wrong question and/or applied the wrong test

1. Mr Arrage submitted that the Commissioner was required, in determining whether the proposed modified development is substantially the same as the development originally approved by the Court, to undertake the comparative exercise in the manner suggested by Bignold J in Moto Projects (No 2) Pty Ltd v North Sydney Council (1999) 106 LGERA 298; [1999] NSWLEC 280 at [55], [56] and [58]: "The requisite factual finding obviously requires a comparison between the development, as currently approved, and the development as proposed to be modified. The result of the comparison must be a finding that the modified development is 'essentially or materially' the same as the (currently) approved development. The comparative task does not merely involve a comparison of the physical features or components of the development as currently approved and modified where that comparative exercise is undertaken in some type of sterile vacuum. Rather, the comparison involves an appreciation, qualitative, as well as quantitative, of the developments being compared in their proper contexts (including the circumstances in which the development consent was granted). Qualitatively appreciated, that difference is in respect of material and essential features of the approved development, that materiality involving the importance attributed to the physical features of the approved development sought to be modified."
2. In the Court below, Mr Arrage's then counsel had submitted that "there is no essential element of the development consent that is readily identifiable from the circumstances of the grant of the Development Consent by the Court".
3. Mr Arrage's counsel submitted to the Commissioner that "the circumstances in which the development consent was granted", referred to by Bignold J in Moto Projects, were limited. Mr Arrage's counsel cited the statement by Commissioner Gray in Ahmad Corp Pty Ltd v Fairfield City Council [2018] NSWLEC 1526 at [44] that: "Whilst Moto Projects provides authority for considering 'the circumstances in which the development consent was granted', in my view care must be taken in considering anything other than the consent itself or the reasons given for the grant of consent."
4. In this case, the development consent was originally granted by the Court in accordance with the agreement of the parties reached at a conciliation conference arranged under s 34 of the Court Act. Mr Arrage's counsel submitted to the Commissioner in written submissions: "The following facts are relevant to the circumstances in which the Development Consent was granted by the Court: a. The Development Consent was granted following a conciliation conference: Mackenzie Architects International Pty Ltd v Marrickville Council [2016] NSWLEC 1123. A Commissioner conducting such a conciliation conference is required by s 34(3)(a) of the Court Act, to 'dispose of the proceedings' in accordance with an agreement reached by the parties. b. The reasons for the grant of Development Consent did not address the merits of the proposed development. To the contrary, at [3] of those reasons, it is explicitly stated: 'In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties.' c. The appeal the subject of the Development Consent was lodged following the deemed refusal of the development application and the Council has confirmed in writing that there was no assessment report prepared. d. The conditions of the Development Consent did not require the built form to be amended; e. There is no evidence that records the reasons why an agreement was reached at the conciliation conference, nor could there be having regard to s 34(11) of the Court Act."
5. Mr Arrage's counsel submitted that neither the development consent as originally granted nor the sparse reasons given by the Commissioner in the previous case for the grant of that consent in accordance with the parties' agreement under s 34(3)(a) of the Court Act, revealed any essential element of the original development consent on which the Commissioner in the present case could rely in order to find that the modified development would not be substantially the same as the development for which consent was originally granted.
6. On this appeal, Mr Arrage submitted that the Commissioner failed to uphold that submission in the Court below. The Commissioner, by giving no consideration to the circumstances in which the development consent was granted, "erred in his application of the test, as derived from Moto Projects".
7. The Council contested that the Commissioner "gave no consideration to the circumstances in which the development consent was granted" or that he did not identify the essential elements of the consent. As the Commissioner's reasons for judgment make plain, the Commissioner undertook the comparative exercise suggested by Bignold J in Moto Projects.
8. The Commissioner identified the quantitative differences between the proposed modified development and the development as originally approved: [26] of the judgment. The Commissioner evaluated the qualitative differences between the originally approved development and the proposed modified development: [27]-[29] of the judgment. The Commissioner concluded that the proposed modified development differs, both quantitatively and qualitatively, from the originally approved development (at [30]), and that such differences will result in the proposed modified development not being substantially the same as the originally approved development (at [31]).
9. The Council submitted that this comparative analysis reveals that the Commissioner did identify what he considered to be the essential elements, both quantitative and qualitative, of the originally approved development that would be changed by the proposed modification of that development.
10. The Council noted that this first ground of appeal appears to be contrary to the submission made to the Commissioner that there was no essential element of the original development consent that was readily identifiable.
11. I reject ground 1(a) of the appeal for three sets of reasons.
12. The first set of reasons is that Mr Arrage's argument on this ground is founded on an unsound basis. The "test" the Commissioner was obliged to apply was not some dicta of Bignold J in Moto Projects, but rather the statutory provision of s 4.55(2)(a) of the EPA Act. Judicial decisions interpreting similar or identical legislative provisions may guide, but cannot control, the meaning of the legislative provision to be construed and applied by the court. Judicial decisions are not substitutes for the text of the legislation, although by reason of the doctrine of precedent and the hierarchical nature of the court system, particular courts may be bound to apply the decision of a particular court as to the meaning of legislation: Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority (2008) 233 CLR 259; [2008] HCA 5 at [31].
13. Bignold J did suggest in Moto Projects that the comparative exercise required by the former s 96(2), now s 4.55(2), of the EPA Act involves a comparison of the proposed modified development and the originally approved development "in their proper contexts (including the circumstances in which the development consent was granted)", but this did not substitute a different or additional test for the test imposed by the statutory provision giving the power to modify a development consent. The test remained that stated in the statutory provision that the modified development "is substantially the same development" as the originally approved development.
14. Accordingly, the Commissioner was not bound by the terms of s 4.55(2)(a) to compare the modified development and the originally approved development "in their proper contexts (including the circumstances in which the development consent was granted)". Insofar as the Commissioner might be seen not to have given consideration to the circumstances in which the development consent was granted, that did not involve him failing to apply the correct test: he was not obliged in law to do so.
15. Even clearer than this conclusion that the Commissioner was not obliged in law to apply the dicta of Bignold J in Moto Projects, is that the Commissioner was not obliged to apply the dicta of Commissioner Gray in the Ahmad case. Believing that it was a relevant inquiry to identify the circumstances in which the development consent was granted, the Commissioner in Ahmad, endeavoured to do so by having regard to the facts of that case. There, the original consent had been granted by the Court in accordance with the parties' agreement under s 34(3)(a) of the Court Act. The Commissioner unsurprisingly found little assistance in the Court's formulaic and perfunctory judgment granting consent in accordance with the parties' agreement.
16. The Commissioner in the present case was not obliged "to adopt the reasoning" of the Commissioner in Ahmad, as Mr Arrage had submitted in the Court below. The dicta of the Commissioner in Ahmad did not, and could not, impose any "test" for undertaking the comparative exercise required by s 4.55(2)(a) of the EPA Act.
17. The second set of reasons for rejecting ground 1(a) of the appeal is that Mr Arrage's submission in the Court below, that "no essential element of the development consent is readily identifiable from the circumstances of the grant of the development consent by the Court", was unappealing sophistry. Moto Projects had suggested that there needs to be a comparison of the material and essential elements of the originally approved and the modified development in order to assess whether the modified development is substantially the same as the originally approved development. Mr Arrage believed that if no essential element of the originally approved development could be identified, then there could be no basis for reaching a conclusion that a modified element is not substantially the same development as the originally approved development. With this belief, Mr Arrage argued before the Commissioner that no essential element of the original development consent could be readily identified from the circumstances of the grant of the development consent by the Court. But this argument was fallacious.
18. First, the essential elements to be identified are not of the development consent itself, but of the development that is the subject of that development consent. The comparison required by s 4.55(2) is between two developments: the development as modified and the development as originally approved: see Scrap Realty Pty Ltd v Botany Bay City Council (2008) 166 LGERA 342; [2008] NSWLEC 333 at [16].
19. Second, the essential elements are not to be identified "from the circumstances of the grant of the development consent"; they are to be derived from the originally approved and the modified developments. It is the features or components of the originally approved and modified developments that are to be compared in order to assess whether the modified development is substantially the same as the originally approved development.
20. The choice of language in the judicial decisions of "material and essential features" or a "material and essential physical element" of the development (see, for example, Moto Projects at [58], [59] and [64]) derives from judicial interpretations of the statutory test that the modified development be "substantially the same" development as the originally approved development. In Vacik Pty Ltd v Penrith City Council [1992] NSWLEC 8, p 2 Stein J interpreted the word "substantially" in the former s 102(1)(a) of the EPA Act to mean "essentially or materially or having the same essence". That interpretation of the word "substantially" was accepted in North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468 at 475 by Mason P (with whom Sheppard AJA agreed at 403) and at 481-482 by Stein JA and in Moto Projects by Bignold J at [30] and [55].
21. This interpretation of the statutory test that the modified development be substantially the same development as the originally approved development, that the modified development be "essentially or materially" the same or "having the same essence" as the originally approved development could support an inquiry to identify the material and essential features of the originally approved and modified developments in order to undertake the comparative exercise required, but it does not demand such an inquiry.
22. That is one way, probably in most cases the most instructive way, to identify whether the modified development is substantially the same development as the originally approved development, but it is not the only way to ascertain whether the modified development is substantially (in the sense of essentially or materially) the same development as the originally approved development. For example, comparison could be made of the consequences, such as the environmental impacts, of carrying out the modified development compared to the originally approved development: see Moto Projects at [62] and Tipalea Watson Pty Ltd v Ku-ring-gai Council (2003) 129 LGERA 351; [2003] NSWLEC 253 at [17].
23. But if that way is selected, then the material and essential features or elements are to be identified from the originally approved and modified developments, not from the circumstances in which the original development consent was granted.
24. Third, the argument is self-fulfilling. The circumstances of the grant of the development consent in this case are that the consent was granted in accordance with the parties' agreement under s 34(3)(a) of the Court Act. There was no contested hearing or adjudication of the appeal against the Council's refusal of the development application for the originally approved development. In these circumstances, there will be no reasons given as to the merits of granting consent to the originally approved development, only reasons as to why the decision is one that can be made in the proper exercise of the Court's functions. Hence, it will not be possible to identify any essential element from the circumstances of the grant of consent.
25. Fourth, it reverses the statutory test and the onus of proof to establish that test required by s 4.55(2) of the EPA Act. Under s 4.55(2), the consent authority must form the positive opinion of satisfaction that the modified development is substantially the same development as the originally approved development. Mr Arrage bore the onus of persuading the Commissioner to form this positive opinion of satisfaction that the modified development is substantially the same development as the originally approved development: Vacik Pty Ltd v Penrith City Council at p 2, North Sydney Council v Michael Standley & Associates Pty Ltd at 475 and 481 and Trinvass Pty Ltd v The Council of the City of Sydney [2018] NSWLEC 77 at [22].
26. Mr Arrage could not discharge this onus by showing that there were no essential elements identifiable from the circumstances of the grant of development consent by the Court and therefore nothing on which the Commissioner could rely to form the opinion that the Commissioner did reach that the modified development is not substantially the same as the originally approved development. To argue that the Commissioner could not form the negative opinion of satisfaction does not establish a basis for the Commissioner to form the positive opinion of satisfaction that was required by s 4.55(2)(a).
27. The third set of reasons for rejecting ground 1(a) is that the Commissioner did apply what Mr Arrage argued is the correct test suggested by Bignold J in Moto Projects. As the Council submitted, the Commissioner undertook the comparative exercise required by identifying and comparing the material and essential elements, both quantitative and qualitative, of the modified development and the originally approved development. No misdirection is revealed in the comparative exercise undertaken by the Commissioner.

Ground 1(b): failure to consider a relevant matter

1. Repackaging his argument on ground 1(a), Mr Arrage contended in ground 1(b) that the Commissioner failed to consider two relevant matters: 1. the circumstances in which the development consent was granted and 2. the material or essential elements for which consent was originally granted.
2. Mr Arrage's arguments on ground 1(b) were essentially the same as his arguments on ground 1(a).
3. In addition, Mr Arrage submitted that the Commissioner failed to consider a third relevant matter, being the controls derived from the relevant environmental planning instrument of Marrickville Local Environmental Plan 2011 ("MLEP"). Mr Arrage noted that the Commissioner listed the relevant environmental planning instruments, including MLEP, relevant to the application (including in [12] of the judgment), but failed to make any further reference to the controls in undertaking the comparative exercise under s 4.55(2)(a) of the EPA Act. Mr Arrage submitted that this is apparent in [30] of the judgment where the Commissioner performed a numeric comparison of the modified development and the originally approved development with no reference to MLEP or any other relevant environmental planning instrument.
4. Mr Arrage submitted that the Commissioner was obliged to consider the relevant environmental planning instruments, including MLEP, relying on the fact that Moore J had done so in Trinvass Pty Ltd v Council of the City of Sydney. In that case, Moore J found that the modification proposed would increase the height and floor space compared to what had been originally approved, but the increases would still be compliant with the relevant controls in the local environmental plan. Moore J therefore found that the increases: "cannot be regarded as being quantitatively inappropriate so as to modify - if permitted - the development to be in a form that would not be substantially the same as that for which consent was granted in the first instance" (at [31]).
5. Mr Arrage argued that the Commissioner in this case should have done likewise: "Trinvass demonstrates that, when comparing the quantitative elements, the Court must consider the planning instruments which govern the site."
6. The Council succinctly rebutted Mr Arrage's argument. As to the first two matters, the Council submitted, as it had on ground 1(a), that the Commissioner's judgment reveals that, as a matter of fact, the Commissioner did consider both of the matters. As to the third matter, the Council also submitted that the Commissioner considered all relevant environmental planning instruments, including MLEP (as evidenced in [12] of the judgment).
7. I reject ground 1(b) of the appeal. As to the first two matters said not to have been considered by the Commissioner, I repeat my reasons for rejecting ground 1(a). In particular, the Commissioner was not legally bound, by s 4.55(2)(a) of the EPA Act, to consider the circumstances in which the development consent was originally granted or the material or essential elements of the original development consent: neither are mandatory relevant matters, such that a failure to consider them is an error of law: see Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-40.
8. As to the third matter, Mr Arrage's argument, based on Moore J's comment in Trinvass Pty Ltd v Council of the City of Sydney, is equally fallacious. Just because Moore J considered, on the facts of that case, that the increases in height and FSR were not "quantitatively inappropriate", by reason of their being compliant with the relevant controls in the local environmental plan, does not make such a consideration a mandatory relevant matter. The matters that a consent authority are bound to consider in making a decision under s 4.55(2)(a) are to be determined by a construction of that statutory provision in its context.
9. It is true that s 4.55(3) requires a consent authority to take into consideration such of the matters in s 4.15(1) of the EPA Act as are of relevance to the development the subject of the modification application and that one of those matters is the applicable environmental planning instruments, which would include in this case MLEP. But that consideration occurs "in determining an application for modification of a consent" under s 4.55. This determination cannot occur unless and until the preconditions in s 4.55(2) have been satisfied, one of which is in s 4.55(2)(a) that the consent authority has formed the positive opinion of satisfaction that "the development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted and before that consent as originally granted was modified (if at all)". The consent authority is therefore not bound by s 4.55(3) to consider the provisions of applicable environmental planning instruments at the stage of determining whether the precondition in s 4.55(2)(a) is met.
10. This is not to say that it would not be permissible for a consent authority to consider the provisions of applicable environmental planning instruments in determining whether the precondition in s 4.55(2)(a) is met, only that the consent authority is not bound in law to do so. There is a difference between a relevant matter that a repository of power is bound to consider and a permissible matter that the repository of power is entitled to consider.
11. In these circumstances, the Commissioner would not err on a question of law by not expressly considering the provisions of MLEP in determining whether he was satisfied of the precondition in s 4.55(2)(a) of the EPA Act.
12. Mr Arrage also has not established that, as a matter of fact, the Commissioner did fail to consider the provisions of MLEP. The Commissioner set out the relevant provisions of MLEP in [12] of the judgment. In doing so, the Commissioner noted that there is no applicable height control or FSR control for the site. The Commissioner therefore was aware that the proposed modification, which he found would increase both the height and the FSR of the modified development from those of the originally approved development, would not contravene any height or FSR control in MLEP.

Ground 1(c): consideration of an irrelevant matter

1. Mr Arrage contended in ground 1(c) that the Commissioner took into consideration an irrelevant matter when he concluded that the "proposed modifications are not beneficial nor facultative in comparison to the development for which consent was originally granted": at [31(2)] of the judgment.
2. Mr Arrage noted that the power to modify a development consent (now in s 4.55(2) of the EPA Act) has been recognised to be "beneficial and facultative" (see, for example, North Sydney Council v Michael Standley and Associates Pty Ltd at 475 and 482) and that modifications may "involve beneficial cost savings and/or improvements to amenity" (North Sydney Council v Michael Standley and Associates Pty Ltd at 475).
3. Mr Arrage submitted, however, that the decision in Michael Standley should not be interpreted to mean that "the modification sought by an applicant needs to be beneficial and facultative for the Court to determine that a development is substantially the same development in order to exercise jurisdiction under s 4.55(2) of the EPA Act." Mr Arrage submitted that the Commissioner misinterpreted the test in Michael Standley and thereby took into account an irrelevant consideration.
4. The Council submitted that no error of law arises from the Commissioner's statement in [31(2)] of the judgment that the proposed modifications are not beneficial or facultative. This factual finding does not indicate any misunderstanding of the decision in Michael Standley. The Commissioner quoted in [22] of the judgment Mr Arrage's then counsel's submission referring to the statement in Michael Standley that "the process of permitting modification of a development consent is one which should be regarded as beneficial and facultative". The Commissioner summarised that proposition at [23(2)] of the judgment. No misunderstanding is revealed in this quotation from Mr Arrage's counsel's submission or the Commissioner's summary of the proposition from Michael Standley that the power to modify a development consent is beneficial and facultative.
5. In these circumstances, where the Commissioner has correctly summarised the proposition in Michael Standley, no inference should be drawn from the Commissioner's later finding in [31(2)] that the Commissioner misinterpreted the proposition in Michael Standley.
6. The Council noted that Mr Arrage's then counsel had submitted before the Commissioner that the modifications of the originally approved development: "were beneficial, including improvements in landscaping outcomes, an enhancement of the dwelling mix available within the development, including a higher proportion of adaptable dwellings" (summarised at [29] of the judgment). Similar submissions were made in oral submissions (at T38.45, T40.50 and T137.10-15).
7. The Council submitted that the Commissioner's later finding in [31(2)] is a factual consideration of the character of the proposed modifications, which responded to Mr Arrage's submission of the beneficial character of the modifications proposed. The Commissioner's factual response to Mr Arrage's submission did not reveal that the Commissioner misinterpreted the "test" in Michael Standley or took into account an irrelevant matter.
8. The Council accepted that the Commissioner had added that the proposed modifications were not "facultative" as well as being not "beneficial", but submitted that this does not reveal that the Commissioner misinterpreted the proposition in Michael Standley. The word "facultative" is an ordinary English word and could sensibly be used by the Commissioner in explaining his finding concerning the proposed modifications. The Council invoked the caution often given by appellate courts not to apply a fine tooth comb to Commissioner's reasons in order to find any infelicity in language.
9. I reject ground 1(c) of the appeal. I agree with and adopt the Council's submissions. The Commissioner's finding that the proposed modifications were not beneficial or facultative in comparison to the development for which consent was originally granted was factual and responsive to Mr Arrage's submission in the Court below. The finding does not reveal that the Commissioner misinterpreted the dicta in Michael Standley that the power to modify a consent is beneficial or facultative.
10. In any event, whether the proposed modifications are or are not beneficial or facultative is not an irrelevant matter in the required sense of being a matter that the consent authority is bound by the statutory provision conferring the power not to take into account: see Minister for Aboriginal Affairs v Peko Wallsend Ltd at 40. Here, there is no express or implied limitation in s 4.55(2)(a) on a consent authority having regard to whether the proposed modification of the development as originally approved might be beneficial or facultative. Accordingly, such a consideration is not an irrelevant matter.

Ground 1(d): failure to determine and give reasons for a principal contested issue

1. Mr Arrage further repackaged grounds 1(a) and 1(b) of the appeal as a failure to determine and to give reasons for a principal contested issue. Mr Arrage submitted that the Commissioner was obliged to perform the quantitative and qualitative comparison required by s 4.55(2)(a) by having regard only to the essential elements of the original consent. To determine the essential elements of the original consent, the Commissioner was obliged to consider only "the consent itself or the reasons given for the grant of the consent", citing the statement by the Commissioner in Ahmad.
2. Mr Arrage submitted that the Commissioner did not undertake the comparison in the manner submitted by Mr Arrage and he thereby failed to determine, and give reasons for determining, a principal contested issue. Mr Arrage submitted that the Commissioner did not make reference to or provide any consideration of the essential elements of the original consent.
3. Insofar as the Commissioner identified the differences between the modified development and the originally approved development in [30] of the judgment, the Commissioner did not expressly state that these are differences in the essential elements of the modified and originally approved development. The Commissioner's identified differences omit other differences that were identified by the parties' experts, both quantitative differences such as the difference in landscaping (referenced in [26(2)(h)] of the judgment) and adaptable housing (referred to in [26(2)(d)] of the judgment) and qualitative differences such as the improvements in landscaping outcomes, an enhancement of the dwelling mix within the development and a higher proportion of adaptable dwellings (referred to in [29] of the judgment). Mr Arrage submitted that the Commissioner failed to give reasons for his selection of some but not all of the differences between the modified and originally approved developments identified by the experts.
4. Mr Arrage submitted that the facts of the proposed modification before the Commissioner and the modification upheld in Ahmad were substantially the same, yet the Commissioner came to a significantly different conclusion on whether he had power to grant the modification to that reached by the Commissioner in Ahmad.
5. The Council contested this ground essentially for the same reasons it had advanced on grounds 1(a) and 1(b). The Commissioner did identify and compare the essential elements of the modified development and the originally approved development, as his judgment evidences: see [26]-[30] of the judgment. The Commissioner's conclusions in [31] drew on that comparative exercise.
6. The Council noted that Mr Arrage's submission confuses the essential elements of the original development consent with the essential elements of the originally approved and modified developments. It is the latter that the Commissioner was required to consider in undertaking the comparative exercise required by s 4.55(2)(a), not the former.
7. The Council observed that the real complaint is that the Commissioner did not come to the same conclusion as the Commissioner in Ahmad. No error on a question of law is revealed by the Commissioner coming to a different factual conclusion to that reached by another Commissioner in another merit appeal.
8. Insofar as Mr Arrage was critical of the Commissioner's reasoning, the Council submitted that the reasons given by the Commissioner were adequate to explain his findings and his conclusions on the principal contested issue concerning whether the Commissioner was satisfied that the modified development was substantially the same development as the originally approved development. The Council invoked the caution urged in a number of appeal cases that judgments of Commissioners of the Court should not be reviewed narrowly or with a fine tooth comb or with an eye keenly attuned to the perception of error: Brimbella Pty Ltd v Mosman Municipal Council (1985) 79 LGERA 367 at 368; Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 291-292; Bellenger v Randwick City Council [2017] NSWLEC 1 at [3].
9. The Council also submitted that there is not an obligation to address in the reasons for judgment each and every argument advanced by a party. Not every argument is tenable or needs to be addressed in the reasons: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30 at [9] and [235]. Reasons do not need to be lengthy or elaborate: Beale v Government Insurance of NSW (1997) 48 NSWLR 430 at 443.
10. The Council submitted that the Commissioner's reasons are perfectly adequate. The Commissioner referred to the experts' evidence on the aspects of the modified development that remained unchanged from the originally approved development (at [26(1)] of the judgment) and that changed from the originally approved development, both quantitatively (in [26(2)]) and qualitatively ([27]-[29]). The Commissioner set out his findings of fact regarding the quantitative and qualitative changes, based on this evidence (in [30]). It was open to the Commissioner to select the aspects of difference that he found to be significant in order to decide whether the modified development was substantially the same development as the originally approved development. The Commissioner then set out his conclusions on the issue under s 4.55(2)(a) to be determined (in [31] and [32]). The Council submitted these reasons were adequate in law.
11. I reject ground 1(d) of the appeal. I agree with and adopt the Council's submissions. When distilled, ground 1(d) adds nothing to grounds 1(a) and ground 1(b). For the reasons I have given in relation to grounds 1(a) and 1(b), the Commissioner was not obliged to consider, or give reasons for determining, whether there were any "essential elements of the development consent that is readily identifiable from the circumstances of the grant of the development consent of the Court". This issue, raised by Mr Arrage's counsel before the Commissioner, was misguided and unnecessary to determine.
12. In any event, as the Council submitted, the Commissioner did in fact identify what he considered to be the material or essential features or components of the modified and originally approved developments. These are the features or components that the Commissioner identified in [30] of the judgment as materially changing by reason of the proposed modification. The differences identified in [30(1)] are the quantitative differences between the modified development and the originally approved development and the differences identified in [30(2)] are the qualitative differences between the modified development and originally approved development. It was not necessary for the Commissioner to have described these differences in the language of "material or essential features" or "essential elements".
13. Again, as the Council submitted, it was open on the evidence for the Commissioner to select many but not all of the differences between the modified and originally approved developments identified by the experts. Indeed, that was the task required of the Commissioner under s 4.55(2)(a) in order for the Commissioner to form his opinion of satisfaction of whether or not the modified development is substantially the same development as the originally approved development.
14. The Commissioner gave reasons for his findings and conclusions in reaching his decision that he was not satisfied that the modified development was substantially the same development as the originally approved development. As the Council submitted, the Commissioner's reasons are to be read fairly, not with an eye attuned to finding error. The Commissioner did deal with the principal contested issue and in a way that adequately explained why he had made the findings of fact and drew the conclusions that he did in order to reach his decision that he was not satisfied that the modified development was substantially the same development as the originally approved development.
15. At base, as the Council rightly observed, Mr Arrage's gripe is that the Commissioner did not come to the same conclusion as the conclusion reached by the Commissioner in Ahmad. But there is no error on a question of law in the Commissioner not coming to the same conclusion as another Commissioner in another merit appeal. The Commissioner was not obliged to refer to the decision in Ahmad in order to distinguish it on its facts or otherwise find that it was wrong: Segal v Waverley Council (2005) 64 NSWLR 177; [2005] NSWCA 310 at [56], [64] and [99(f)]. Nor was the Commissioner obliged to give reasons for not referring to or following the decision in Ahmad: Segal v Waverley Council at [94], [99(g)].

Ground 1(e): findings without evidence

1. Mr Arrage contended in ground 1(e) that there was no evidence in support of the Commissioner's finding at [30(2)] of the judgment that: "the proposed development under the modification application differs qualitatively when compared to the development for which consent was originally granted in that it would result in: (a) a reduction in the space and functionality in the communal open space on the rooftop due to the removal of all internal communal room space on the rooftop, and some facilities important to the functionality of the space, such as a toilet; (b) an increase in competition for use of the communal open space as a result of the larger number of residents under the modification proposed."
2. Alternatively, Mr Arrage submitted that the conclusion was against the weight of the evidence.
3. The Council contested that the Commissioner's finding lacked evidentiary support. The Council submitted that the Commissioner's finding concerning the communal open space was supported by the evidence referred to by the Commissioner in [26(2)(g)], [27(2)] and [30] of the judgment. The Commissioner at [26] of the judgment was referring to the table prepared by the experts summarising the differences between the modified and the originally approved development. That table expressly referred to the changes in the communal open space resulting from the proposed modification.
4. The Commissioner had before him Mr Richardson's evidence, to which the Commissioner referred in [27(2)] of the judgment. Mr Richardson's written evidence was in the joint expert report tendered in evidence, supplemented by Mr Richardson's oral evidence.
5. The Commissioner had before him in evidence the amended statement of environmental effects. In the description of the proposed modification, the amended statement of environmental effects described in words and on plans the modification of the fifth floor to delete all of the communal open space and replace it with three additional dwellings and the modification to add a sixth floor containing another dwelling and communal open space (outdoor only).
6. The Commissioner also had full sets of plans showing the differences between the modified development and the originally approved development, from which the Commissioner was able to draw his own conclusions as to the changes in communal open space.
7. In these circumstances, the Council submitted that it cannot be tenably argued that there was no evidence to support the Commissioner's findings in [30(2)] of the judgment concerning the communal open space.
8. The Council submitted that the argument that the Commissioner's finding was against the weight of the evidence does not isolate an error on a question of law.
9. I reject ground 1(e) of the appeal. I agree with and adopt the Council's submissions. Whilst a decision reached in the absence of evidence to support it constitutes an error of law (see Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390 at [91]-[92] and Hoy v Coffs Harbour City Council (2016) 218 LGERA 411; [2016] NSWCA 257 at [28]), provided there is some evidence for a finding of fact, no error on a question of law will arise. A finding that is perverse or against the weight of the evidence is wrong in fact, but not in law: Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 156 and Randwick Municipal Council v Manousaki (1988) 66 LGRA 330 at 333-334.
10. Here, as the Council points out, there was some evidence for the Commissioner's finding in [30(2)] of the judgment. That is all that is required. No error on a question of law is established.

Conclusion and orders

1. Mr Arrage has not established any of the grounds of the appeal. The appeal should be dismissed with costs.
2. The Court orders: 1. The appeal is dismissed. 2. The appellant is to pay for the respondent's costs of the appeal.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 June 2019