Baron Corporation Pty Limited v Council of the City of Sydney

Land and Environment Court (NSW)|2019-04-11|Before: Preston CJ, Dr J

Jurisdiction: Class 1 Citation: [2018] NSWLEC 1552 Date of Decision: 19 October 2018 Before: Gray C File Number(s): 2018/88767

Development consent is sought to alter an approved building

Baron Corporation Pty Ltd ("Baron") was granted a deferred commencement consent to demolish existing warehouse buildings and erect a 7 storey residential flat building containing 27 apartments and associated basement parking at 17-19 Dunning Avenue, Rosebery ("the land"). The Land and Environment Court granted consent on 4 October 2016 ("the 2016 consent"): Bettar v Council of the City of Sydney [2016] NSWLEC 1456. The deferred commencement conditions needed to be satisfied within 24 months of the date of determination, which would be by 4 October 2018, before the consent would operate.

The appeal to the Court against the deemed refusal of consent

The consent authority, the Council of the City of Sydney ("the Council"), did not determine Baron's development application within the time period prescribed for the determination of the application and Baron appealed to the Court, after the date of deemed refusal under s 8.11 of the EPA Act of the development application, on 20 March 2018.
The Council's first contention, in its statement of facts and contentions, was that the submitted written request under cl 4.6 seeking to justify the contravention of the development standard in cl 4.4(2) of SLEP did not demonstrate that complying with the development standard is unreasonable or unnecessary in the circumstances of the case or that there are sufficient environmental planning grounds to justify contravening the development standard, as required by cl 4.6(3) of SLEP.
The appeal was heard by Commissioner Gray on 3 October 2018. Prior to the hearing, Baron had provided amended plans to the Council and, at the hearing, the Commissioner granted leave to Baron to amend the development application to rely on these amended plans. At the hearing, Baron submitted, and the Commissioner accepted into evidence, an amended written request under cl 4.6 seeking to justify the contravention of the development standard in cl 4.4(2) of SLEP.

The Commissioner refuses development consent

The Commissioner reserved her judgment at the end of the hearing of the appeal. The Commissioner delivered judgment on 19 October 2018: Baron Corporation Pty Limited v Council of the City of Sydney [2018] NSWLEC 1552. The Commissioner dismissed the appeal and refused the development application. The basis on which the Commissioner refused consent to the development application was that she was not satisfied, as she was required to be by cl 4.6(4)(a)(i) of SLEP, that Baron's written request had adequately addressed the matters required to be demonstrated by cl 4.6(3) of SLEP.
First, the Commissioner was not satisfied that the written request had adequately addressed the matter in cl 4.6(3)(b) that there are sufficient environmental planning grounds to justify contravening the development standard in cl 4.4(2) of SLEP. The Commissioner found, at [58]-[59] of the judgment: "Firstly, I am not satisfied that the written request has adequately addressed that there are sufficient environmental planning grounds to justify contravening the development standard. The environmental planning grounds identified are not sufficient grounds to justify the intensity caused by the additional floor space that exceeds the FSR development standard. There must be some identifiable grounds that justify, or inform, the non-compliance with the FSR development standard. In the words of Preston CJ in Initial Action, "The environmental planning grounds advanced in the written request must justify the contravention of the development standard, not simply promote the benefits of carrying out the development as a whole" (at [24]). The written request simply promotes the benefits of carrying out the proposed altered development. Those benefits include maintaining the approved building envelope to ensure that there are no additional adverse impacts, maintaining compliance with the ADG requirements, and increasing the number of residential units. None of those benefits justify a contravention of the FSR development standard. Conversely, there is nothing in the request that outlines why the additional floorspace is required to achieve any of those ends. Specifically, maintaining the approved amenity outcomes is a product of the nature of the application and does not justify the additional FSR. Further, it is not sufficient to state that the units all maintain compliance with the ADG. Both the ADG (through SEPP 65) and the FSR development standard apply to the development, and compliance with one does not justify non-compliance with the other. Nor is it sufficient that the proposal provides additional housing which represents a "more efficient use" of the approved building envelope. Whilst that is a benefit of the proposed development, it does not justify the breach of the FSR development standard. As such, the request does not advance any environmental planning grounds that justify the contravention of the FSR development standard or the increased intensity caused by that contravention. This reason alone is sufficient to prevent me from reaching the state of satisfaction required by cl 4.6(4)(a), and therefore prevents development consent from being granted."
Secondly, the Commissioner was not satisfied that the written request had adequately addressed the matter in cl 4.6(3)(a) that compliance with the development standard in cl 4.4(2) of SLEP is unreasonable or unnecessary in the circumstances of the case. The Commissioner found, at [60]-[61] of the judgment: "Secondly, I am not satisfied that the request has adequately addressed that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case. Consistent with the first of the five Wehbe ways, the request goes some way to outline why compliance is unreasonable and unnecessary. It does so in two separate parts. The first part (p 3 of the request) outlines the absence of impacts, the reason for the application, and the financial contributions made associated with other development at the site. The second part (pp 4-5) outlines consistency with the objectives of the FSR development standard, and therefore seeks to demonstrate how the objectives are achieved notwithstanding the non-compliance with the FSR development standard. As a result, I am satisfied that the request demonstrates that each of objectives (a), (c) and (d) of the FSR development standard are met, as the built form remains the same and there are no adverse impacts caused by the increased intensity. However, I am not satisfied that the request demonstrates that objective (b) is achieved notwithstanding non-compliance with the FSR development standard. Objective (b) is "to regulate the density of development, built form and land use intensity and to control the generation of vehicle and pedestrian traffic". It is therefore concerned with the "regulation" of density, built form and land use intensity (and its impact on vehicular and pedestrian traffic). In the context of the present application, involving an increased intensity, there is nothing in the request that demonstrates how the land use intensity of the proposed altered development is consistent with the regulation sought to be achieved by the FSR development standard. As per Ms McGrath's evidence, the standard is in place to strategically manage densities, and an increase in the FSR in one development may have the effect of incremental increases across multiple developments which would be contrary to this. Objective (b) is concerned with this strategic management. There is nothing in the request that demonstrates that this is maintained notwithstanding the non-compliance, such as by demonstrating that what is sought is commensurate with the intensity of other development in the area. Further, the submissions made on behalf of Baron, concerning the operation of the SLEP 2012 to allow departures from the FSR development standard, and seeking to establish the third and fourth Wehbe ways in which it can be demonstrated that compliance is unreasonable or unnecessary, are not made out by the request. Whilst this could have been the subject of a further amended cl 4.6 request, even if I was to be satisfied that one of the five Wehbe ways was established by the request, the request would nonetheless fall short of establishing sufficient environmental planning grounds to justify the contravention of the FSR development standard."
Having not reached the state of satisfaction required by cl 4.6(4)(a)(i), the Commissioner was not able to grant development consent for the development that would contravene the development standard, by operation of cl 4.6(4) of SLEP. The Commissioner therefore refused the development application (at [62]-[63] of the judgment).

The appeal against the Commissioner's decision

Baron appealed against the Commissioner's decision, under s 56A of the Land and Environment Court Act 1979 ("Court Act"), on questions of law. In the summons commencing the appeal, the grounds of appeal primarily concerned the Commissioner's finding that the written request had not adequately addressed the matter required to be addressed by cl 4.6(3)(a) that compliance with the development standard is unreasonable or unnecessary in the circumstance of the case. This finding was in [60] and [61] of the Commissioner's judgment. Baron's written submissions explicitly stated this focus: "The focus of the present appeal is the error arising from the way the Commissioner addressed that part of the applicant's cl 4.6 request to the extent that it contended that compliance with the FSR standard was, in the circumstances of the case, unreasonable or unnecessary."
The grounds of appeal stated in the summons, which were reproduced in Baron's written submissions, alleged the Commissioner erred on questions of law in the following ways: 1. misconstruction of the development standard: the Commissioner misconstrued objective (b) of the development standard in cl 4.4(1) of SLEP (ground 1(a)); 2. failed to apply the correct test under cl 4.6(4)(a)(ii): the Commissioner failed to apply the correct test under cl 4.6(4)(a)(ii) of SLEP as to consistency with the objectives of the development standard (ground 1(b)); 3. applied the wrong test under cl 4.6(4)(a)(i): the Commissioner applied the wrong test under cl 4.6(4)(a)(i) of whether she was directly and personally satisfied that compliance with the development standard is unreasonable or unnecessary rather than whether the written request has adequately addressed that matter (ground 2); 4. misdirection in applying cl 4.6 to the development standard: the Commissioner misdirected herself by focusing on the non-compliant element of the development in circumstances where it was not possible to identify any element of the development that did not comply with the FSR development standard (ground 3); and 5. misdirection concerning lack of adverse amenity impacts: the Commissioner misdirected herself by proceeding on the basis that the lack of adverse amenity impacts on adjoining properties is not a sufficient ground justifying the development contravening the development standard when at law one way of demonstrating consistency with the objectives of a development standard is to show a lack of adverse amenity impacts (ground 4).
In submissions on the hearing of the appeal, Baron sought to expand the grounds of appeal so as to challenge the Commissioner's finding that the written request had not adequately addressed the matter required to be demonstrated by cl 4.6(3)(b) that there are sufficient environmental planning grounds to justify contravening the development standard. This finding was in [58] and [59] of the Commissioner's judgment. Baron submitted in reply, that: "The Commissioner's findings at [58]-[59] are infected by the same defect as that identified in [60] of the judgment. In relation to [58] of the judgment the Commissioner was in error by finding that: (a) the 'benefits' of the proposal cannot be environmental planning grounds; (b) the appellant needed to demonstrate that FSR is 'required' to achieve these ends; (c) the appellant did not advance any environmental planning grounds or any justification for the 'increased intensity'."
Baron did not, however, seek to amend its grounds of appeal in the summons to raise these grounds.

The misconstruction of the development standard

The written request under cl 4.6 sought to justify the contravention of the development standard in cl 4.4(2) of SLEP by demonstrating that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case. One of the ways in which the written request sought to justify the contravention of the development standard was to demonstrate that the objectives of the development standard in cl 4.4 are achieved notwithstanding the development exceeding the maximum floor space ratio permitted by the development standard. This is the most commonly invoked way of establishing that compliance with a development standard is unreasonable or unnecessary: see Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118 at [17].
The objectives of the development standard are specified in cl 4.4(1) of SLEP: "The objectives of this clause are as follows: (a) to provide sufficient floor space to meet anticipated development needs for the foreseeable future, (b) to regulate the density of development, built form and land use intensity and to control the generation of vehicle and pedestrian traffic, (c) to provide for an intensity of development that is commensurate with the capacity of existing and planned infrastructure, (d) to ensure that new development reflects the desired character of the locality in which it is located and minimises adverse impacts on the amenity of that locality."
The Commissioner found, in [60] of the judgment, that she was "satisfied that the request demonstrates that each of objectives (a), (c) and (d) of the FSR development standard are met, as the built form remains the same and there are no adverse impacts caused by the increased intensity." The Commissioner was not satisfied, however, that "the request demonstrates that objective (b) is achieved notwithstanding noncompliance with the FSR development standard".
Baron submitted that the Commissioner's finding in [60] of the judgment that she was not satisfied that objective (b) is achieved was in error in five ways.
First, Baron submitted that there is "unexplained inconsistency" in the Commissioner's reasoning. Matters of the "intensity" of development are the subject of both objectives (b) and (c) of the development standard, objective (b) referring to "land use intensity" and objective (c) referring to "intensity of development". The Commissioner found that the written request demonstrated that objective (c) was achieved, but inconsistently found that objective (b) was not achieved. The Commissioner did not explain this inconsistency in her reasoning.
Secondly, in construing and applying objective (b), the Commissioner equated "intensity" with "density". The Commissioner stated that objective (b) is concerned with the regulation of "density, built form and land use intensity" but proceeded to state that the present application involved "an increased intensity" and that the request did not demonstrate how "the land use intensity" of the proposed development is consistent with the regulation sought to be achieved by the development standard.
Thirdly, the Commissioner construed objective (b) to involve the "regulation" of the density of development, built form and land use intensity by fixing the maximum floor space ratios of buildings in the local area and that the regulation imposed by the development standard is "immutable". Any exceedance of the maximum floor space ratio permitted for a building on land would undermine the regulation sought to be achieved by the development standard.
Baron submitted that this construction of objective (b) was erroneous. It involved reading objective (b) as a regulation or standard in itself, rather than as an objective of the development standard. Objective (b) is explanatory of the purpose of the floor space ratio development standard. The purpose of the floor space ratio development standard is not "regulation" of the density of development, built form and land use intensity for its own sake but instead is to control the density of development, built form and land use intensity in order to achieve the various goals identified in objectives (a), (c) and (d) and the goal in objective (b) of controlling the generation of vehicle and pedestrian traffic. The Commissioner, however, construed the purpose of the floor space ratio development standard to be "regulation" by itself.
Baron submitted that this construction of objective (b) of the development standard in cl 4.4 effectively excluded the operation of cl 4.6 as it applied to the FSR development standard under cl 4.4 of SLEP. There could never be a circumstance in which contravention of the development standard could be justified. Any exceedance of the maximum FSR would be inconsistent with the "regulation" sought to be achieved by cl 4.4 under this construction.
Baron submitted that the Commissioner's construction that the regulation imposed by the development standard is immutable "ignores the circumstance that cl 4.6, with its expressed objective 'to provide an appropriate degree of flexibility' in the application of development standards, is as much a provision of the SLEP as is cl 4.4". Clause 4.6 is a facultative provision, permitting a consent authority to grant development consent for development even though that development would contravene a development standard, citing Initial Action Pty Ltd v Woollahra Municipal Council at [9].
Baron noted that if the objective of the FSR development standard was to "regulate" buildings in the City of Sydney in the manner construed by the Commissioner, one would have expected SLEP to have excluded the FSR development standard from the operation of cl 4.6 (see cl 4.6(2)), as was done for other development standards in cl 4.6(8) of SLEP, but this was not done for cl 4.4.
Baron submitted that the Commissioner's construction of objective (b) unlawfully fettered the operation of cl 4.6, leaving that clause with no work to do.
Fourthly, the Commissioner accepted the evidence of the Council's planner, Ms McGrath, that the development standard in cl 4.4 "is in place to strategically manage densities, and an increase in the FSR in one development may have the effect of incremental increases across multiple developments which would be contrary to this" (at [60] of the judgment). Baron submitted that the meaning of this sentence is obscure. It may be referring to Ms McGrath's evidence, as summarised by the Commissioner in [39] of the judgment, that "it is in the public benefit to maintain the FSR standard, thereby prohibiting incremental increases to the envisaged density such as what would occur through the proposed development." That is to say, by always ensuring compliance with the FSR development standard, there can be no increase in the density of development, built form and land use intensity. But if this is what the Commissioner meant, it reinforces the argument that the Commissioner's approach was that, by reason of objective (b), the development standard is immutable, a conclusion that is inconsistent with cl 4.6.
Fifthly, the final sentence in [60] of the judgment confirms the Commissioner's erroneous approach. The Commissioner said: "There is nothing in the request that demonstrates that this is maintained notwithstanding the non-compliance, such as by demonstrating that what is sought is commensurate with the intensity of other development in the area."
The phrase "this is maintained" refers back to the Commissioner's references in the previous sentence to strategic management of densities of development. Baron submitted that if the Commissioner was referring to the densities of development that might be or might have been achieved elsewhere, so that in a given area some perceived limit on densities is not to be exceeded, this would be inconsistent with the requirement that each development application for development, and any supporting written request under cl 4.6, must be assessed separately.
Baron submitted that this statement is further evidence that the Commissioner erroneously construed objective (b) to require the written request to demonstrate that strategic management of densities of development in the local area have been maintained, notwithstanding the noncompliance of the proposed development with the FSR development standard. This is to ask the wrong question.
The Council submitted that the Commissioner did not misconstrue objective (b) of the development standard in cl 4.4 or ask the wrong question.
As to the first alleged error of the unexplained inconsistency, the Council submitted that even if there were to be inconsistency between the finding that objective (c) was achieved and finding that objective (b) was not achieved, any inconsistency in reasoning does not disclose an error on a question of law Perversity or unreasonable findings of fact do not comprise an error of law: Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 155-156.
As to the second alleged error of equating density with intensity, the Council submitted that it is not evident from the Commissioner's findings in [60] of the judgment that the Commissioner did confuse the "density of development" with "land use intensity". The Commissioner did refer to both density and intensity at different places in the paragraph, but her choice of words may be deliberate - she intended to refer to density or intensity as was appropriate to the point the Commissioner was making. Primarily, the Commissioner was concerned with land use intensity. She found the present application involved increasing land use intensity but there was nothing in the written request that demonstrated how the land use intensity of the proposed altered development achieved objective (b) of the FSR development standard. The Council submitted that the Commissioner was not confused about the meaning of each concept and did not equate one with the other.
As to the third to fifth alleged errors, being differing examples of the Commissioner's alleged misconstruction of objective (b) of the FSR development standard, the Council submitted that the Commissioner's findings in [60] concerning the content of the written request under cl 4.6 ("I am not satisfied that the request demonstrates that objective (b) is achieved..", "there is nothing in the request that demonstrates how the land use intensity of the proposed altered development is consistent with the regulation sought to be achieved by the FSR development standard" and "there is nothing in the request that demonstrates that this is maintained notwithstanding the noncompliance..") are no more than findings of fact concerning the cl 4.6 request.
The findings impugned by Baron do not indicate that the Commissioner regarded the development standard in cl 4.4 as "immutable". The Commissioner did not ask the wrong question or apply the wrong test. The Commissioner asked the correct question in ascertaining whether the written request demonstrated that objective (b) is achieved notwithstanding noncompliance with the FSR development standard. Objective (b) refers to "regulation". The concept of "regulation" can connote "strategic management", as Ms McGrath suggested in her evidence. The Commissioner did not err in accepting that suggestion in construing objective (b). The Commissioner correctly asked whether the written request demonstrated that strategic management of the density of development, built form and land use intensity would be achieved (or maintained) notwithstanding the noncompliance with the development standard.
Further, the Council submitted that the reference in [60] to "the intensity of other development in the area" was not a different test which the Commissioner required the cl 4.6 request to meet. Having already found, as a fact, that the applicant's cl 4.6 request had not demonstrated why the proposal did not meet the objective, the Commissioner was doing no more than giving an example of the kind of matter that might have addressed the objective had the request done so.
The Council submitted that Baron's challenge to the Commissioner's findings concerning the cl 4.6 request "amount to no more than a complaint that the Commissioner's reasoning was perverse or illogical given the findings she had made at [54]-[56]. Perversity or illogicality of reasoning is not an error on a question of law: Azzopardi (supra)."
I find the Commissioner did misdirect herself in finding that the written request under cl 4.6 had not demonstrated that objective (b) of the development standard in cl 4.4(2) of SLEP is achieved, notwithstanding the development's noncompliance with the development standard. The Commissioner misconstrued objective (b) and asked the wrong question regarding whether objective (b) of the development standard is achieved, notwithstanding the development's noncompliance with the development standard. These errors on questions of law are illustrated by the third to fifth errors raised by Baron in its submissions. I do not find that the first and second errors raised by Baron in its submissions are errors on questions of law for the reasons advanced by the Council in its submissions.
The central problem in the approach of the Commissioner to objective (b) of the development standard is the Commissioner's elevation of the regulation that is the subject of objective (b) to be an end in itself. Objective (b) is explanatory of the central purpose of the floor space ratio development standard to regulate the density of development, built form and land use intensity of buildings on land in the local area. By fixing different maximum floor space ratios for buildings on land in different areas by means of the Floor Space Ratio Map, the clause does regulate the density of development, built form and land use intensity. But the regulation of the density of development, built form and land use intensity is not the end to be achieved by the clause, rather it is a means to achieve the goals identified in objective (a) "to provide sufficient floor space to meet anticipated development needs for the foreseeable future", objective (c) "to provide for an intensity of development that is commensurate with the capacity of existing and planned infrastructure" and objective (d) "to ensure that new development reflects the desired character of the locality in which it is located and minimises adverse impacts on the amenity of that locality", and the particular goal in object (b) "to control the generation of vehicle and pedestrian traffic".
The Commissioner, however, viewed "the regulation sought to be achieved by the FSR development standard" as being the end in itself. This is evident from the Commissioner's choice of language in the critical paragraph [60] of her reasons. The Commissioner, immediately after quoting objective (b), identifies that the objective "is therefore concerned with the 'regulation' of density, built form and land use intensity (and its impact on vehicle and pedestrian traffic)". The Commissioner's use of the quotation marks around the word "regulation" emphasises her focus on regulation. The Commissioner applies this approach focused on "regulation" to the applicant's written request seeking to justify the contravention of the development standard. The Commissioner finds that "there is nothing in the request that demonstrates how the land use intensity of the proposed altered development is consistent with the regulation sought to be achieved by the FSR development standard."
The Commissioner's adoption of the Council planner's evidence also reveals that the Commissioner approached her task by focusing on regulation. The Council planner, Ms McGrath, had given evidence that she construed the FSR standard as being "in place to strategically manage densities that correspond with the capacity of existing and planned infrastructure" (as found by the Commissioner at [39]). That evidence echoes objective (c) of the FSR development standard, "to provide for an intensity of development that is commensurate with the capacity of existing and planned infrastructure". The Commissioner, however, deployed this evidence of Ms McGrath in aid of the Commissioner's finding on objective (b).
Ms McGrath also gave evidence that "allowing an exceedance to the FSR in this manner would set an undesirable precedent in the area." Ms McGrath opined that "it is in the public benefit to maintain the FSR standard, thereby prohibiting incremental increases to the envisaged density such as what would occur through the proposed development" (as found by the Commissioner in [39] of the judgment). This evidence was not based in any particular objective of the development standard in cl 4.4, but instead reflected Ms McGrath's opinion that it was not in the public benefit for exceptions to the FSR development standard to ever be made.
The Commissioner deployed this evidence in her finding that "an increase in the FSR in one development may have the effect of incremental increases across multiple developments which would be contrary to this." The word "this" in the concluding phrase harks back to the Commissioner's finding earlier in the sentence that the FSR development standard is "in place to strategically manage densities." The Commissioner reiterated this in her next sentence that "objective (b) is concerned with strategic management." The Commissioner uses "strategic management" as a synonym for the "regulation" of density of development, built form and land use intensity to which the Commissioner had earlier referred.
The Commissioner applied this approach focused on "strategic management" or "regulation" to the written request under cl 4.6: "There is nothing in the request that demonstrates that this is maintained notwithstanding the non-compliance…" The word "this" is again a reference to the strategic management or regulation of the density of development, built form and land use intensity.
In so finding, the Commissioner has accepted Ms McGrath's evidence that allowing an exceedance of the maximum floor space ratio permitted by the development standard for this development would set an undesirable precedent, setting in train incremental increases in floor space ratio across multiple developments. This would be contrary to the "regulation" or "strategic management" sought to be achieved by the development standard. Only by maintaining compliance with the maximum floor space ratio fixed by the development standard can the regulation or strategic management of the density of development, built form and land use intensity be maintained.
This approach of the Commissioner involved misconstruction of the objectives of the development standard, particularly objective (b), and caused the Commissioner to ask the wrong question. I reject the Council's submission that the findings of the Commissioner in [60] of the judgment are merely findings of fact and do not reveal misdirection as to law. Of course, the findings are framed as findings of fact, such as "I am not satisfied that the request demonstrates…" or "there is nothing in the request that demonstrates…", but the terms in which the findings are expressed reveal the erroneous approach to the task taken by the Commissioner.
The Commissioner sought to ask whether the written request under cl 4.6 demonstrated that objective (b) of the development standard in cl 4.4.(2) is achieved, notwithstanding the development's noncompliance with the development standard. But the Commissioner did this by asking whether the written request demonstrated that the regulation or strategic management of the density of development, built form and land use intensity is maintained, notwithstanding the noncompliance. This was to ask the wrong question. It was a question that could never be answered in the affirmative. As Baron submitted, a written request seeking to justify the contravention of the floor space ratio development standard by one building could never establish that the regulation or strategic management of the density of development, built form and land use intensity of all buildings in the local area has been maintained.
I find, therefore, that the Commissioner erred on a question of law in construing and applying objective (b) of the development standard in cl 4.4(2) of SLEP.
However, for the reasons I give later, this error is not material to the decision made by the Commissioner and does not vitiate the decision. The error occurred in the Commissioner finding that she was not satisfied that the written request had adequately addressed the matter in cl 4.6(3)(a) of SLEP that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case. This was one of the matters required to be demonstrated by cl 4.6(3). The other matter required to be demonstrated was in cl 4.6(3)(b) that there are sufficient environmental planning grounds to justify contravening the development standard. The Commissioner found that she was not satisfied that the written request had adequately addressed this matter in cl 4.6(3)(b). For the reasons I give below, Baron has not established that the Commissioner erred on a question of law in making this finding. As a consequence, the Commissioner's decision is not vitiated by any error regarding the matter in cl 4.6(3)(a) of SLEP.

The alleged failure to apply correct test under cl 4.6(4)(a)(ii)

Ground 1(b) contended that the Commissioner erred by failing to apply the correct test under cl 4.6(4)(a)(ii) of SLEP, being a demonstration only of consistency with the relevant objectives of the development standard in cl 4.4 of SLEP. Baron submitted that the test applied by the Commissioner, that development "achieve" the objectives of the development standard (this word being used by the Commissioner in [60] of the judgment), set a higher bar than the test required by cl 4.6(4)(a)(ii) that the development "is consistent with" the objectives of the development standard. The Commissioner thereby applied the wrong test.
Baron submitted that the Commissioner's finding that any development exceeding the maximum floor space ratio fixed by the development standard is not capable of being consistent with the objectives of the standard ignores the meaning of "consistency" established in Schaffer Corporation Ltd v Hawkesbury City Council (1992) 77 LGRA 21 at 27, that "a development will be generally consistent with the objectives if it is not antipathetic to them. It is not necessary to show that the development promotes or is ancillary to those objectives, nor even that it is compatible". The test of "consistency" is less onerous than that of "achievement". Clause 4.6 does not require the objective to be met.
The Council responded that this contention is misconceived. The Commissioner did not address cl 4.6(4)(a)(ii) of SLEP, only cl 4.6(4)(a)(i). The Commissioner's decision was founded on her not being satisfied that the applicant's written request had adequately addressed the matters required to be demonstrated by cl 4.6(3). As the Commissioner held, "having not reached the state of satisfaction required by cl 4.6(4)(a)(i), cl 4.6(4) makes it clear that development consent must not be granted" (at [62] of the judgment). Accordingly, the Commissioner did not need to go on to consider whether she was satisfied of the matter in cl 4.6(4)(a)(ii) that the proposed development will be in the public interest because it is consistent with the objectives of the development standard in cl 4.4.
The Council submitted that there was no need for the Commissioner, when considering whether she was satisfied that the applicant's written request had adequately addressed the matters required to be demonstrated by cl 4.6(3), to ask whether the proposed development is consistent with the objectives of the development standard. That is not the correct test to be applied in considering whether the Commissioner was satisfied as to the matter in cl 4.6(4)(a)(i).
The Council accepted that the Commissioner, in determining whether she was satisfied that the applicant's written request had adequately addressed the matter required to be demonstrated by cl 4.6(3)(a) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, did ask whether the development achieved the objectives of the development standard notwithstanding the development's noncompliance with the development standard. But this was a legitimate enquiry. The most commonly invoked way to demonstrate that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case is to establish that the objectives of the development standard are achieved notwithstanding noncompliance with the development standard: see Initial Action Pty Ltd v Woollahra Municipal Council at [17]. The terms of cl 4.6(3)(a) do not mandate establishing that the development, which contravenes the development standard, is "consistent with" the objectives of the development standard.
The Council further submitted that the term "achieved" does not self-evidently set a higher bar than the term "consistent with". As was held in Initial Action Pty Ltd v Woollahra Municipal Council at [97], the Commissioner's use of a different term to "consistent with" (in that case "comply with") does not necessarily reveal that the Commissioner misdirected herself by substituting a different test. The words used need to be read in context. Here, the Council submitted, the Commissioner used the term "achieve" as a different way of saying that the objectives of the development standard are met or not met, as the case may be, and hence that the development is consistent or not consistent with the objectives.
I reject ground 1(b), for the reasons given by the Council. Foremost, the Commissioner cannot have misdirected herself or applied the wrong test as to cl 4.6(4)(a)(ii) of SLEP because the Commissioner did not, and did not need to having regard to the basis of her decision, consider whether she was satisfied as to the matter in cl 4.6(4)(a)(ii) that the proposed development would be in the public interest because it is consistent with the objectives of the development standard in cl 4.4(2) of SLEP. The Commissioner only considered, and only needed to consider having regard to the basis of her decision, whether she was satisfied under cl 4.6(4)(a)(i) that the applicant's written request had adequately addressed the matters required to be demonstrated by cl 4.6(3). Consideration of these matters did not mandate applying a test of the development's consistency with the objectives of the development standard.

The alleged failure to apply the correct test under cl 4.6(4)(a)(i)

Ground 2 contended that the Commissioner, in assessing whether the written request under cl 4.6 has adequately addressed the matters required to be demonstrated by cl 4.6(3), erred by applying the wrong test of whether she was directly and reasonably satisfied with the applicant's reasons given in the written request. Baron submitted that the correct test was that the Commissioner "does not have to directly form the opinion of satisfaction regarding the matters in cl 4.6(3)(a) and (b), but only indirectly form the opinion of satisfaction that the applicant's written request has adequately addressed the matters required to be demonstrated by cl 4.6(3)(a) and (b)", citing Initial Action Pty Ltd v Woollahra Municipal Council at [25].
Ground 2 of the grounds of appeal nominated [61] of the judgment as disclosing that the Commissioner applied the "erroneous test". Baron did not otherwise identify, in its submissions, where else the Commissioner had applied the erroneous test.
The Council noted that Baron had only identified [61] of the judgment as disclosing that the Commissioner had applied the wrong test. In that paragraph, however, the Commissioner was addressing the submissions made by Baron concerning the third and fourth commonly invoked ways of demonstrating that compliance with a development standard is unreasonable or unnecessary, referred to in [19] and [20] of Initial Action Pty Ltd v Woollahra Municipal Council in turn referring to [46] and [47] of Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827. As the Commissioner correctly observed, neither of those approaches had been adopted by Baron in its written request.
The Commissioner simply stated that, as the written request did not demonstrate that compliance with the development standard is unreasonable or unnecessary by reason of "the third and fourth Wehbe ways", she could not be satisfied that the written request demonstrated that compliance with the development standard was unreasonable or unnecessary by reason of the third and fourth Wehbe ways.
The Council submitted that the Commissioner's consideration in [60] of the judgment of the first Wehbe way of showing that compliance with the development standard is unreasonable or unnecessary, namely that the objectives of the development standard are achieved notwithstanding the noncompliance with the development standard, makes clear that the Commissioner addressed herself to the applicant's written request. In three separate parts of the paragraph, the Commissioner addressed the written request. In the first, the Commissioner found that she was satisfied that the request demonstrated that objectives (a), (c) and (d) of the development standard were met. In the second and third, the Commissioner found that "there is nothing in the request that demonstrates…" various matters.
In these circumstances, the Council submitted that it has not been established that the Commissioner did apply the wrong test.
In any event, however, the Council submitted that it would not necessarily have been an error for the Commissioner to have formed her own opinion about the matters required to be demonstrated by cl 4.6(3) in order to determine whether she was satisfied that the applicant's written request had adequately addressed those matters. The Council submitted that: "It is one thing to say that the Court on appeal is not required to form its own state of satisfaction as to the matters in cl 4.6(3), but only indirectly needs to be satisfied that the applicant has addressed them in the written request. That is not the same as saying that the Court must not, or would be wrong to, form its own opinion."
I find that ground 2 has not been established, factually or legally. Factually, Baron has not established that the Commissioner has applied the wrong test. As the Council submitted, the Commissioner's discussion in [60] and [61] of the judgment does not reveal that she applied the wrong test. To the contrary, the Commissioner's discussion focused on the applicant's written request and the ways in which that request sought to demonstrate that compliance with the development standard was unreasonable or unnecessary.
Legally, it would not necessarily have been an error for the Commissioner to have formed her own opinions about the matters required to be demonstrated by cl 4.6(3) provided this was done in order to, first, consider the applicant's written request under cl 4.6(3) and, secondly, determine whether the Commissioner was satisfied under cl 4.6(4)(a)(i) that the applicant's written request had adequately addressed the matters required to be demonstrated by cl 4.6(3).
By cl 4.6(4)(a)(i), a consent authority, or the Court on appeal exercising the functions of the consent authority, needs to be satisfied that the applicant's written request has " adequately addressed" the matters required to be "demonstrated" by cl 4.6(3). Clause 4.6(3) requires the consent authority to have "considered" the applicant's written request that seeks to justify the contravention of the development standard by "demonstrating" the matters in cl 4.6(3)(a) and (b).
The requirement that the matters in cl 4.6(3) be demonstrated by the written request refers to an outcome, not a process. Although the written request "seeks" to justify the contravention of the development standard, it must do this by "demonstrating" the matters in paragraphs (a) and (b) of cl 4.6(3). These matters are outcomes: that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case and that there are environmental planning grounds to justify contravening the development standard.
The consent authority's consideration of the applicant's written request, required under cl 4.6(3), is to evaluate whether the request has demonstrated the achievement of the outcomes that are the matters in cl 4.6(3)(a) and (b). Only if the request does demonstrate the achievement of these outcomes will the request have "adequately addressed the matters required to be demonstrated" by cl 4.6(3), being the requirement in cl 4.6(4)(a)(i) about which the consent authority must be satisfied. The request cannot "adequately" address the matters required to be demonstrated by cl 4.6(3) if it does not in fact demonstrate the matters. Again, the requirement is one of outcome, not process.
The upshot is that a consent authority, and the Court on appeal, in order to determine whether the applicant's written request has demonstrated the achievement of the matters (the outcomes) in cl 4.6(3)(a) and (b), might need to form a view about whether the matters have in fact been achieved. Take, for example, the matter in cl 4.6(3)(a). One of the ways in which compliance with the development standard might be shown to be unreasonable or unnecessary in the circumstances of the case is if the development achieves the objectives of the development standard, notwithstanding that the development contravenes the development standard. Demonstrating that the development achieves the objectives of the development standard involves identification of what are the objectives of the development standard and establishing that those objectives are in fact achieved. The applicant's written request will need to demonstrate both of these things: correctly identifying the objectives of the development standard and establishing that the objectives are in fact achieved. The consent authority may not be in a position to be satisfied that the applicant's written request does demonstrate both of these things unless the consent authority forms its own view about these things.
To recognise that a consent authority might need to form its own view about whether the matters in cl 4.6(3) have been achieved, in order to discharge its responsibility to determine whether it is satisfied that the applicant's written request has adequately addressed the matters required to be demonstrated by cl 4.6(3), is not to apply the wrong test. The test remains that set by the terms of cl 4.6(4)(a)(i). It simply recognises that application of that test might involve the consent authority forming its own view about the matters in cl 4.6(3). I read Basten JA's remarks in Al Maha Pty Ltd v Huajun Investments Pty Ltd (2018) 233 LGERA 170; [2018] NSWCA 245 at [21]-[23] as making a similar point.
In this case, I do not read the Commissioner's reasons as revealing that the Commissioner did apply the wrong test. In so far as the Commissioner did form a view about the matters in cl 4.6(3), she did so for the purpose of determining whether she was satisfied that the applicant's written request had adequately addressed the matters required to be demonstrated by cl 4.6(3). The Commissioner found that the applicant's written request had not in fact demonstrated the matters required to be demonstrated by cl 4.6(3). In doing so, the Commissioner applied the correct test.

The alleged misdirection in applying cl 4.6 to the development standard

Ground 3 contended that the Commissioner erred by requiring the applicant's written request to focus on "the non-compliant element of the development". Baron submitted that with a floor space ratio development standard, it is not possible to identify any element of a development that is noncompliant with the development standard.
The development standard in cl 4.4(2) of SLEP is that the maximum floor space ratio for a building on any land is not to exceed the floor space ratio shown for the land on the Floor Space Ratio Map. "Floor space ratio" is defined in cl 4.5(2) of SLEP as: "The floor space ratio of buildings on a site is the ratio of the gross floor area of all buildings within the site to the site area."
Baron submitted that, where the floor space ratio is a measure of all gross floor area on a site, it follows that any exceedance can only ever be a number, not a physical component or element of the building that one can identify. Baron submitted that, as a matter of logic, it is not possible to identify where on the site any proposed additional floor space ratio for the purposes of the written request under cl 4.6 could be located. Baron nominated, in a footnote to its written submissions, [53]-[56] and [58] of the judgment as the places where the Commissioner is said to have required Baron's cl 4.6 request "to focus on the non-compliant element of the development". Baron argued that the Commissioner erred in the application of cl 4.6 in her focus on the "unidentifiable" non-compliant element. Accordingly, that finding was not open to the Commissioner on the proper application of the facts and the definitions of the floor space ratio development standard.
The Council responded that neither ground 3 of the summons nor Baron's submissions identify where the Commissioner made the alleged error. Indeed, the Council submitted that it could not identify anywhere in the judgment where the Commissioner focused on a particular element of the proposed development in her consideration of the applicant's written request under cl 4.6.
I reject ground 3. As the Council submitted, Baron has not identified where in the judgment the Commissioner made the error of requiring the applicant's written request to focus on the non-compliant element of the development. In the paragraphs of the judgment nominated by Baron, the Commissioner did not say that the applicant's written request needed to, but did not, focus on "the non-compliant element of the building". Indeed, the Commissioner does not seek to identify any physical component or element of the building that is non-compliant. The Commissioner simply refers to the "additional floor space" that occurs by reason of the contravention of the floor space ratio development standard. The Commissioner has not made the error alleged by Baron.
On one view, Baron's concern is a problem of its own making. Baron chose to make a development application, not for a new residential flat building embodying the alterations and additions to the approved residential flat building, but merely for the alterations and additions to the approved residential flat building. This was the "development" the subject of the development application and for which development consent was sought. This was the development that needed to be assessed, under s 4.15 of the EPA Act generally and cl 4.6 of SLEP particularly.
Clause 4.6(2) permits development consent to be granted for development even though the development would contravene a development standard. Clause 4.6(3) and (4) prohibit the grant of development consent for development that contravenes a development standard unless the conditions in those subclauses are satisfied. These subclauses focus attention on the "development" for which development consent is sought and which contravenes the development standard.
In this case, that development is the alterations and additions to the approved residential flat building. Baron's selection of that development as the subject of its development application leads to complications when making and evaluating the written request under cl 4.6 seeking to justify that development's contravention of the development standard in cl 4.4(2) of SLEP. As Baron pointed out, the floor space ratio development standard in cl 4.4(2) cannot readily be applied to the development of alterations and additions to the approved residential flat building. The concept of floor space ratio applies to the whole building on the land, not a part or parts of the building. But this problem is engendered by Baron's selection of the development for which it would seek consent.
The Council suggested that the problem could be, and was in the appeal before the Commissioner, side stepped by recognising that the development standard in cl 4.4(2) of SLEP operates by reference to "a building on any land". The development standard is that the maximum floor space ratio for a building on any land is not to exceed the floor space ratio shown for the land on the Floor Space Ratio Map. In this case, the development proposed alterations and additions to the approved residential flat building, which would result in an altered building. The Council submitted that the development standard should be construed as applying to the altered building, so that the maximum floor space ratio of that altered building is not to exceed the floor space ratio shown for the land on which the altered building would be erected.
This is a practical way to approach application of the floor space ratio development standard, but it does not entirely solve the problem. Clause 4.6 still operates on the development for which development consent is sought and which contravenes the development standard. This is the development to which development consent may be granted under cl 4.6(2) and to which development consent must not be granted if the conditions in cl 4.6(3) and (4) are not satisfied. In this case, that development remains the alterations and additions to the approved residential flat building only and not any resultant, altered building.
In these circumstances, although I do not read the Commissioner's reasons as revealing that she did require the applicant's written request to focus on the noncompliant element of the development, it would not necessarily have been an error for the Commissioner to have considered the particular development of the alterations and additions to the approved residential flat building for which development consent was sought in order to evaluate the applicant's written request seeking to justify that particular development's contravention of the floor space ratio development standard.

The alleged misdirection concerning lack of adverse amenity impacts

Ground 4 contended that the Commissioner misdirected herself by holding incorrectly that the lack of adverse amenity impacts on adjoining properties is not a sufficient ground justifying the development contravening the development standard, when one way of demonstrating consistency with the objectives of a development standard is to show a lack of adverse amenity impacts. Baron referred to Randwick City Council v Micaul Holdings Pty Ltd (2016) 225 LGERA 94; [2016] NSWLEC 7 at [34] that "establishing that the development would not cause environmental harm and is consistent with the objectives of the development standard is an established means of demonstrating that compliance with the development standard is unreasonable or unnecessary".
Baron nominated, in its submissions, [60] of the judgment as the place in which the Commissioner incorrectly held that the lack of adverse impacts caused by the increased intensity is not a sufficient ground justifying the development contravening the development standard.
The Council responded that the difficulty with this ground is that the Commissioner did not find in [60] of the judgment that the lack of adverse amenity impacts caused by the increased intensity is not a sufficient ground, as alleged by Baron. On the contrary, the Commissioner acknowledged that there were no adverse impacts and for that reason found that objectives (a), (c) and (d) were met. The Commissioner's reasons for finding that objective (b) was not achieved had nothing to do with any lack of adverse amenity impacts.
I reject ground 4. As the Council submitted, Baron has misread the Commissioner's findings in [60] of the judgment. The Commissioner did not make the error alleged by Baron.

The alleged errors in findings on cl 4.6(3)(b)

In its summons commencing the appeal and its written submissions on the appeal, Baron only challenged the Commissioner's finding that she was not satisfied that the applicant's written request has adequately addressed the matter required to be demonstrated by cl 4.6(3)(a) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case. The Commissioner had also found that she was not satisfied that the applicant's written request has adequately addressed the matter required to be demonstrated by cl 4.6(3)(b) that there are sufficient environmental planning grounds to justify contravening the development standard (in [58] and [59] of the judgment). However, Baron did not challenge these findings in [58] and [59] of the judgment.
The Council in its written submissions on the appeal pointed out this omission to challenge the Commissioner's findings concerning cl 4.6(3)(b): "None of the grounds challenge the essential findings at [58] and [59] which the Commissioner expressly found to be determinative". The Council submitted that, as a consequence, even if the Commissioner were to have erred on a question of law in her findings concerning cl 4.6(3)(a) in [60] and [61] of the judgment, any such error would not be material and would not vitiate the Commissioner's decision.
In response, Baron sought, in its written submissions in reply and in its oral submissions at the hearing of the appeal, to challenge the Commissioner's findings in [58] and [59] of the judgment concerning cl 4.6(3)(b). However, no application was made to amend the summons to raise additional grounds of appeal challenging the Commissioner's findings in [58] and [59] of the judgment.
This is not merely a formality, it is jurisdictional. Identification of a decision on a question of law by the Commissioner is not merely a precondition to the right of appeal under s 56A of the Court Act, it identifies the subject matter of the appeal: Minister Administering Crown Lands Act v Bathurst Local Aboriginal Land Council (2009) 166 LGERA 379; [2009] NSWCA 138 at [195]; Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority (2009) 168 LGERA 1; [2009] NSWCA 178 at [20]; Dial A Dump Industries Pty Ltd v Roads and Maritime Service (2017) 94 NSWLR 554; [2017] NSWCA 73 at [165]. It is the decision of the Commissioner, not the appeal against the decision, that must be on a question of law: Roads and Traffic Authority of NSW v Peak [2007] NSWCA 66 at [139] and B & L Linings Pty Ltd v Chief Commissioner of State Revenue (2008) 74 NSWLR 481; [2008] NSWCA 187 at [70]. The essential first task in an appeal under s 56A of the Court Act is to identify the express or implied decision on a question of law. Without the existence and identification of such a decision, the Court will have no jurisdiction to review the decision of the Commissioner: Edyp v Brazbuild Pty Ltd [2011] NSWCA 218 at [33], [35]. The Court's jurisdiction on an appeal under s 56A of the Court Act is confined to addressing the grounds of appeal challenging the Commissioner's decision on questions of law; it does not extend to addressing errors on questions of law not raised in the grounds of appeal.
Nevertheless, as I consider that Baron's challenges to the Commissioner's findings in [58] and [59] of the judgment are not established, I will address the challenges and explain why I consider them not to be established.
Baron submitted that the Commissioner's findings in [58]-[59] are "infected" by the same errors that the Commissioner made in her findings in [60] of the judgment. Baron submitted, in [2] of its written submissions in reply, that the Commissioner was in error in finding that: 1. the benefits of the proposal cannot be environmental planning grounds; 2. the applicant (Baron) needed to demonstrate that the additional floor space ratio is "required" to achieve these benefits; and 3. the applicant did not advance any environmental planning grounds or any justification for the "increased intensity".
In oral submissions, Baron first focused on the Commissioner's finding in [58] of the judgment that the written request "simply promotes the benefits of carrying out the proposed altered development" but "does not advance any environmental planning grounds that justify the contravention of the FSR development standard". That finding was made in purported application of the statement in Initial Action Pty Ltd v Woollahra Municipal Council at [24] that: "The environmental planning grounds advanced in the written request must justify the contravention of the development standard, not simply promote the benefits of carrying out the development as a whole…".
Baron submitted that the Commissioner misconstrued this statement in two ways: first, that benefits of carrying out the development cannot be environmental planning grounds and, secondly, that if a benefit could be an environmental planning ground, it cannot justify the contravention of the development standard. Either way, this involved misdirection. The Commissioner thereby applied the wrong test in determining whether the applicant's written request demonstrated that there are sufficient environmental planning grounds to justify contravening the development standard.
Baron contrasted the Commissioner's findings in [56] of the judgment that the increase in intensity and density of development can be accommodated on the site and in the locality with the findings in [60] that there are no environmental planning grounds that justify the contravention of the FSR development standard. The inconsistency in findings can only be explained by the Commissioner believing that the benefits of the development cannot justify the contravention of the development standard.
Baron next focused on the Commissioner's statement in [58] of the judgment that: "Conversely, there is nothing in the request that outlines why the additional floorspace is required to achieve any of those ends." Baron submitted that this is not the test in cl 4.6(3)(b), which does not require the applicant to establish any need or positive benefit. The Council had submitted that "the cl 4.6 request does not outline any need for the change and there is no reason given as to why the proposal was warranted" (at [49] of the judgment). The Commissioner evidently accepted this submission by her statement in [58] of the judgment. But, Baron submitted, it was the wrong question to ask whether the additional floor space is required to achieve any of the benefits advanced in the applicant's written request.
The Council responded that Baron has misread the Commissioner's reasons. On a fair reading, the Commissioner did not misdirect herself or apply the wrong test in determining that the applicant's written request had not demonstrated that there are sufficient environmental planning grounds to justify contravening the development standard.
Starting with the Commissioner's application of the statement in [24] of Initial Action Pty Ltd v Woollahra Municipal Council, the Council submitted that the Commissioner's reasons do not establish that the Commissioner erroneously believed that the benefits of carrying out the development could never justify contravention of the development standard. The statement quoted from Initial Action Pty Ltd v Woollahra Municipal Council makes the point that the environmental planning grounds advanced in the written request must justify the contravention of the development standard. This is the requirement of cl 4.6(3)(b). The statement adds that it is not sufficient to "simply promote the benefits of carrying out the development as a whole." That is to say, it is not sufficient for the written request to show that the environmental planning grounds advanced in the request are benefits of carrying out the development as a whole, the request must establish why those environmental planning grounds justify the contravention of the development standard.
The Council submitted that the Commissioner so understood the statement in Initial Action Pty Ltd v Woollahra Municipal Council, as is evidenced by her application of the statement. Two sentences make this clear. Immediately after quoting the statement from Initial Action Pty Ltd v Woollahra Municipal Council, the Commissioner found that: "The written request simply promotes the benefits of carrying out the proposed altered development." The Commissioner summarised the three benefits advanced in the written request. The Commissioner then found that: "None of those benefits justify a contravention of the FSR development standard." The Commissioner followed this finding with her reasons for the finding. The two quoted sentences reveal that the Commissioner applied the statement in Initial Action Pty Ltd v Woollahra Municipal Council correctly. The Commissioner's enquiry was whether the environmental planning grounds advanced in the written request, although promoted as benefits of carrying out the proposed altered development, justified the contravention of the development standard. This was to apply the correct test.
The Council submitted that the Commissioner's reasons for finding that the benefits advanced in the written request did not justify the contravention of the development standard also reveal that the Commissioner applied the correct test. The Commissioner identified the benefits advanced in the written request to be threefold: "maintaining the approved building envelope to ensure that there are no additional adverse impacts, maintaining compliance with the ADG requirements, and increasing the number of residential units." The Commissioner dealt with each in turn. As to the first, the Commissioner found: "Specifically, maintaining the approved amenity outcomes is a product of the nature of the application and does not justify the additional FSR." As to the second, the Commissioner found: "Further, it is not sufficient to state that the units all maintain compliance with the ADG. Both the ADG (through SEPP 65) and the FSR development standard apply to the development, and compliance with one does not justify non-compliance with the other." As to the third, the Commissioner found: "Nor is it sufficient that the proposal provides additional housing which represents a 'more efficient use' of the approved building envelope. Whilst that is a benefit of the proposed development, it does not justify the breach of the FSR development standard." Having dealt with each of the three benefits advanced in the applicant's written request, the Commissioner concluded: "As such, the request does not advance any environmental planning grounds that justify the contravention of the FSR development standard or the increased intensity caused by that contravention."
The Council submitted that this reasoning reveals that the Commissioner applied the correct test to determine whether the applicant's written request demonstrated that there are sufficient environmental planning grounds to justify contravening the development standard.
The Council submitted that the finding that none of the benefits justified the contravention of the development standard, and the three reasons given for that finding, are each findings of fact that were open to the Commissioner on the evidence before the Commissioner. The findings in [58] of the judgment are not inconsistent with the findings in [56] of the judgment. They are directed to different purposes. The Commissioner in [60] was concerned to determine whether the benefits advanced in the applicant's written request (which included the lack of adverse impacts by the increased density and intensity of the development) justified the contravention of the development standard. The Commissioner found that they did not. This was not inconsistent with the findings in [56] of the judgment. Even if the findings in [60] were to be wrong (which the Council disputed), they would not constitute an error on a question of law, citing Azzopardi v Tasman UEB Industries Ltd.
The Council next addressed Baron's challenge to the Commissioner's statement that: "Conversely, there is nothing in the request that outlines why the additional floorspace is required to achieve any of those ends." The Council submitted that this was a legitimate enquiry. The Commissioner had been referred to the statement of Lloyd J in Winten Property Group Ltd v North Sydney Council (2001) 130 LGERA 79; [2001] NSWLEC 46 at [26] that, in answering the question (referred to as the fourth question) of whether compliance with the development standard is unreasonable or unnecessary in the circumstance of the case, "it seems to me that one must also look to see whether a development which complies with a development standard is unreasonable or unnecessary, as noted by Cripps J in the Hooker Corporation case [(1986) 130 LGERA 438]." The Council submitted that this was what the Commissioner was looking at when she found that there was nothing in the request that outlined why the additional floor space is required to achieve any of the benefits advanced in the request.
The Council submitted that, in any event, the finding was immaterial. It did not affect the Commissioner's finding in the preceding sentence that none of the benefits advanced in the request justified the contravention of the development standard, or the reasons given for that finding in the following sentences.
I find that the Commissioner did not err on a question of law in any of the ways alleged by Baron. I agree with and adopt the Council's submissions, summarised above. The Commissioner did not misdirect herself or ask the wrong question in finding that she was not satisfied that the applicant's written request had not adequately addressed the matter required to be demonstrated by cl 4.6(3)(b) that there are sufficient environmental planning grounds to justify contravening the development standard. For the reasons given by the Council, the Commissioner did not approach the task with the erroneous belief either that the benefits of carrying out the development could not be environmental planning grounds or that if a benefit could be an environmental planning ground, it could not justify the contravention of the development standard. To the contrary, the Commissioner's reasons in [58] of the judgment reveal that she asked the correct question of whether the benefits advanced in the applicant's written request justified the contravention of the development standard. There is no inconsistency in the findings in [56] and [58], as they were directed to different purposes. Even if there were to be a difference, it does not reveal that the Commissioner asked herself the wrong question in determining in [58] that the written request did not justify the contravention of the development standard.
The Commissioner's statement that the written request had not outlined why the additional floor space was required in order to achieve the benefits advanced in the written request did not ask the wrong question. As the Council submitted, that enquiry was open to the Commissioner, but in any event it was a diversion from the central point being made by the Commissioner that the benefits that had been advanced in the written request did not justify contravening the development standard. The statement was therefore immaterial and did not affect the Commissioner's finding on the central point.
Baron has not established that the Commissioner erred on a question of law in finding that the applicant's written request had not demonstrated that there are sufficient environmental planning grounds to justify contravening the development standard.

The Commissioner's decision is not vitiated

I have found that Baron has established that the Commissioner erred on a question of law in finding that the applicant's written request had not demonstrated that objective (b) of the development standard in cl 4.4 of SLEP is achieved. This affected the Commissioner's finding that she was not satisfied that the applicant's written request had adequately addressed the matter required to be demonstrated by cl 4.6(3)(a) that compliance with the development standard was unreasonable or unnecessary in the circumstances of the case.
I have also found that Baron has not established that the Commissioner erred on a question of law in finding that she was not satisfied that the applicant's written request had adequately addressed the matter required to be demonstrated by cl 4.6(3)(b) that there are sufficient environmental planning grounds to justify contravening the development standard.
Under cl 4.6(4)(a)(i), the Commissioner needed to be satisfied that the applicant's written request had adequately addressed both of the matters required to be demonstrated by cl 4.6(3)(a) and (b). If the Commissioner was satisfied that the applicant's written request had adequately addressed one of the matters, such as the matter in cl 4.6(3)(a), but not the other of the matters, such as the matter in cl 4.6(3)(b), the Commissioner would not be able to form the required state of satisfaction under cl 4.6(4)(a)(i) so as to enliven the power to grant development consent for development that contravenes the development standard.
Hence, the Commissioner's error in finding that she was not satisfied that the applicant's written request had adequately addressed the matter required to be demonstrated by cl 4.6(3)(a) is not material and does not vitiate the Commissioner's decision. As Moffitt P said in Leichhardt Municipal Council v Seatainer Terminals Pty Ltd (1981) 48 LGRA 409 at 419: "It is not sufficient to show that some error of law appears in the judgment or during the course of the trial. The error has to be one upon which the decision depends, so the decision is vitiated by the error. It will not suffice to establish that one or some only of a number of alternate findings upon which the decision depends, so the decision is vitiated by the error. It will not suffice to establish that one or some only of a number of alternate findings upon which the decision was given involved errors of law, if one alternative involved no error of law.": see also Yates Property Corp Pty Ltd (in liq) v Darling Harbour Authority (1991) 24 NSWLR 156 at 177 and Sydney Water Corp v Caruso (2009) 170 LGERA 298; [2009] NSWCA 391 at [8]-[12], [25]-[27], [108]-[112], [132]-[139] and [191].
In this case, the Commissioner's decision to refuse consent to the proposed development that contravened the development standard in cl 4.4 of SLEP was legally required by the Commissioner's finding under cl 4.6(4)(a)(i) that she was not satisfied that the applicant's written request had adequately addressed both of the matters required to be demonstrated by cl 4.6(3)(a) and (b). Any error in finding that the applicant's written request did not adequately address the matter in cl 4.6(3)(a) did not affect the finding that the applicant's written request did not adequately address the matter in cl 4.6(3)(b). The Commissioner's finding under cl 4.6(4)(a)(i) therefore stands unaffected by the error. The error did not affect the result. In these circumstances, the Commissioner's decision to refuse consent to the development application is not vitiated.

Conclusion and orders

Baron has established only one error on a question of law but that error did not materially affect, and hence vitiate, the Commissioner's decision to refuse consent to Baron's development application. The appeal should be dismissed.
The parties agreed that the usual order for costs on a s 56A appeal should be made, that costs follow the event. Baron has been unsuccessful on the appeal and should pay the Council's costs of the appeal.
The Court orders: 1. The appeal is dismissed. 2. The applicant is to pay 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: 06 May 2019

(2018) 233 LGERA 170

(2009) 166 LGERA 379

(2002) 123 LGERA 100

(2007) 156 LGERA 446

(1986) 130 LGERA 438

(2009) 170 LGERA 298

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