Bechara v Plan Urban Services Pty Ltd & Ors

THIRD RESPONDENT Australian Advanced Building Pty Ltd

FOURTH RESPONDENT City of Canada Bay Council

KEY ISSUES: Judicial Review :- s 96(1A) modification application - alleged misdirection - whether status of satisfaction formed by consent authority reasonably open - substantially the same and minimal environmental impact

Environmental Planning and Assessment Act 1979 s 79C, s 96 LEGISLATION CITED: Roads Act 1993 s 138 Environmental Planning and Assessment Regulation 2000 cl 119(2)

ASIC v Rich [2005] NSWSC 149; Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223; Attorney-General for the State of New South Wales v Quin (1990) 170 CLR 1; Austcorp No 459 Pty Limited v Baulkham Hills Shire Council (2002) 122 LGERA 205; Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139; King, Markwick, Taylor & Ors v Bathurst Regional Council [2006] NSWLEC 505; CASES CITED: Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Others (1996) 185 CLR 259; Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; Moto Projects (No 2) Pty Ltd v North Sydney Council (1999) 106 LGERA 298; North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468; Save our Street Incorporated v Settree (2006) NSWLEC 570; Telstra Corporation Ltd and Another v Hurstville City Council and Others (2002) 118 FCR 198; The Council of the City of Parramatta v Pestell (1972) 128 CLR 305; Wyong Shire Council v MCC Energy Pty Ltd (2005) 139 LGERA 296

APPLICANT Mr M Sahade SOLICITORS Phillips Fox

FIRST RESPONDENT Mr J A Ayling SC SOLICITORS Abbott Tout

SECOND RESPONDENT LEGAL REPRESENTATIVES: Mr J A Ayling SC SOLICITORS Abbott Tout

THIRD RESPONDENT Mr J A Ayling SC SOLICITORS Abbott Tout

FOURTH RESPONDENT Mr P Jackson (solicitor) SOLICITORS Pike Pike & Fenwick

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

PLAN URBAN SERVICES PTY LTD First Respondent

AUSTRALIAN ADVANCED BUILDING PTY LTD Third Respondent

CITY OF CANADA BAY COUNCIL Fourth Respondent

JUDGMENT Jagot J: Introduction 1 The applicant seeks a declaration that the modification of development consent 220/2004 approved by the City of Canada Bay Council ("the Council") by notice dated 24 August 2006 is invalid and of no effect, and orders consequential upon that declaration.

2 The declaration is claimed on four grounds, none of which were clearly disclosed in the applicant's points of claim. That fact caused the first, second and third respondents to object to the applicant relying on these claims, albeit without any suggestion that those respondents were incapable of dealing with the claims as articulated in the applicant's opening or were in any way prejudiced thereby. I note this merely to record that, given the way in which the applicant opened and prosecuted its case, the applicant's points of claim may be put to one side.

3 The four claims relied on by the applicant were as follows: (1) The Council had not formed the state of satisfaction required by s 96(1A)(b) of the Environmental Planning and Assessment Act 1979 ("EPA Act"), because the Council misdirected itself in law with respect to that section.

(2) It was not reasonably open to the Council to be satisfied that the development to which the consent as modified related would be 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) as required by s 96(1A)(b) of the EPA Act.

(3) It was not reasonably open to the Council to be satisfied that the proposed modification was of minimal environmental impact as required by s 96(1A)(a) of the EPA Act.

(4) The grant of the modification approval was in breach of s 96(1A)(c) of the EPA Act in that the decision of the Council that its applicable development control plan did not require notification of the modification application was itself not reasonably open.

4 There was no dispute between the parties about the primary facts from the Council's files, which I shall now record.

5 The subject site is known as 24 Walton Crescent, Abbotsford. The second respondent owns that property. The applicant owns the adjoining property to the south-east known as 22 Walton Crescent Abbotsford. The subject site falls from the street.

6 On 16 July 2004, the Council granted development consent for development described as "demolition of existing dwelling and erection of new two/three storey building, boundary fencing and associated landscaping". The approved plans for that development show that the development comprised the removal of the existing dwelling, garage and driveway crossing, the construction of a new driveway crossing and driveway to the north of the site leading into a new garage at ground level (that is, from the street) with kitchen, laundry, lounge, dining, living rooms and terrace also at that level, below which was a store and recreation area with terrace at the lower level (that is, below street level) and above which were three bedrooms, study and bathroom at the upper level. A new masonry and middle fence to the street frontage were also proposed, as well as various ancillary works.

7 On 16 March 2006, the first respondent, a firm of consulting planners, lodged an application to modify the development consent under s 96(1A) of the EPA Act.

8 Section 96(1A) provides that (1A) Modifications involving minimal environmental impact A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the consent authority and subject to and in accordance with the regulations, modify the consent if: (a) it is satisfied that the proposed modification is of minimal environmental impact, and (b) it is satisfied 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), and (c) it has notified the application in accordance with: (i) the regulations, if the regulations so require, or (ii) a development control plan, if the consent authority is a council that has made a development control plan that requires the notification or advertising of applications for modification of a development consent, and (d) it has considered any submissions made concerning the proposed modification within any period prescribed by the regulations or provided by the development control plan, as the case may be. Subsections (1), (2) and (5) do not apply to such a modification. 9 The modification application described the modification as "conversion of approved garage to a rumpus room and construction of the new garage".

10 On 24 March 2006, Mr King, Council's team leader assessment and regulatory services, wrote to the first respondent advising that it was considered that the application "substantially alters the development" and required the lodgement of a fresh development application for five reasons - namely: 1. The works propose to raise the level of the footpath crossing and relocate the approved driveway crossing to the opposite side of the frontage. 2. Works involve habitable rooms forward of the original building line. 3. The roof is higher than the ridge line of house to south which will obviously be impacted due to solar access. 4. Rumpus adds another 100m2 to the building floor space. 5. Proposal introduces added bulk to the streetscape, previously below street level, which may also impact on views for western properties. 11 The first respondent responded by letter dated 29 March 2006. Part of that response included reference to various decisions of this Court with respect to the "substantially the same" test including Moto Projects (No 2) Pty Ltd v North Sydney Council (1999) 106 LGERA 298.

12 The Council communicated again with the first respondent on 4 April 2006 to the effect that, having regard to the Court decisions to which the first respondent had referred, including Moto Projects , the Council was willing to assess the application under s 96(1A), but requested the lodgement of additional information as follows: 1. Indicate all changes to approved development that are not consistent with the approved plans and consent DA 220/2004 determined 16 July 2004. 2. Include street elevation with front fence details and building outlines on adjoining properties to either side of the subject property. 3. Shadow diagrams indicating additional overshadowing impacts on adjoining properties as a result of the proposed additions including elevational shadow diagram of the north walls to No. 22 Walton Cresent [sic] indicating all openings, their sill and head RL's and room use names. 4. Access to new garage shall be provided from the existing driveway crossing and footpath levels and plans must indicate accordingly.

13 The Council notified the modification application pursuant to its Notification and Advertising of Development Applications, Development Control Plan. The Development Control Plan, at page 6, said that: Applications under s 96(1A) are concerned with minor alterations. The same criteria will apply to notification of such applications as applied to local development.

14 The notification of local development was regulated by cl 4.3 of the Development Control Plan at page 4, which provides in part as follows: Who will be notified?

Notice, in writing, shall be forwarded to owners and occupiers of adjoining and nearby land (including properties opposite) if in the opinion of Council (or a person having delegated authority to determine the application), the enjoyment of the adjoining land may be detrimentally affected by the proposed development after construction. The person having delegated authority to determine the application will assess the extent of the notification based on the size, nature and impact of the proposed development.

Where Council is notified of any major development, newspaper advertisement will give public notification of same, this will include applications for rezoning of any major allotments.

15 Various objections were lodged to the modification application, including from the applicant and the applicant's consultant planners.

16 The Council again requested additional information on 23 May 2006.

17 On 1 June 2006, Mr Furlong, the consultant planner within the first respondent responsible for the application, lodged photographs showing that at 2.00pm on 6 May 2006 the adjoining property (No. 22) was fully overshadowed by the already approved development at No. 24.

18 A Council officer prepared a report about this modification application identified as "Delegated Section 96 Report". The report recommended refusal of the application on four grounds. The first ground set out four matters under a heading, "Not substantially the same development". Mr Patrick Robinson, the Council's manager, assessments and regulatory services, as the Council's delegate, determined that application in accordance with the recommendation. On 21 July 2006, the Council issued its notice of determination in accordance with Mr Robinson's decision refusing the modification application.

19 On 7 August 2006, the first respondent lodged a second modification application, again under s 96(1A) of the EPA Act, for "conversion of approved garage to a rumpus room and construction of a new garage". A statement of environmental effects accompanied this modification application, like the first. The statement of environmental effects, prepared by Mr Furlong of the first respondent, contained the following statements under the heading "Section 96 Considerations": The subject amendment if granted will not alter the nature of the development approved, nor the location of the building on site. The Walton Crescent frontage will be amended by the inclusion of the new garage, although this will return the streetscape to its previous appearance.

The upper level garage and use of the lower level as a rumpus room will not create any adverse environmental or amenity impacts. The major portion of the built form will be screened by the garage to the adjoining dwelling and the front fence. As there are no windows in the southern wall and as a flat roof is to be provided above the garage, there will be no privacy or shadow impacts to the adjoining dwelling (No. 22).

The proposed amendment is considered to be minor and will not result in any environmental impact. The proposal is one that a reasonable authority could consent to and if lodged as part of the original application would not likely have been refused.

As such, the consent as modified will remain substantially the same as that originally issued. There are no environmental nor amenity impacts from the proposed amendment, whilst the location, scale, size, shape and appearance of the approved development will generally remain the size.

20 The modification application was also accompanied by information referred to in a letter dated 4 August 2006 providing plans of the proposed driveway, including a detailed survey and overland flow path.

21 On 9 August 2006, Mr Robinson forwarded a memorandum to Mr Lau of the Council's Engineering Department requesting a review of the revised plans regarding the footpath "to address the original issues raised by the Council's Engineering Department". Mr Lau, the Council's civil design manager, responded on 10 August 2006 to the effect that the revised plans did not show the extent of regrading or include an engineering certificate stating that the proposed works would not cause any stormwater to be re-diverted or concentrated to the adjoining property all along the footpath nor create nuisance flooding. The memorandum noted that if satisfactory information was lodged, an approval could be granted to the footpath works under s 138 of the Roads Act 1993, subject to conditions.

22 On 14 August 2006, the Council forwarded a letter to the first respondent requesting the lodgement of further information with respect to the regrading of the footpath. With respect to, "streetscape/urban design/bulk and scale and overshadowing", the letter said that the modification application would be assessed on the basis of the information lodged and taking into account the letters of objection submitted to the first modification application.

23 On 18 August 2006 the Council issued an approval under s 138 of the Roads Act 1993 to the footpath works, subject to conditions. Condition 1 provided that: 1. Regarding Works and Stormwater Drainage - detailed construction drawings shall be provided sufficient to show that stormwater runoff can be conveyed safely to the road gutter from the footway as part of regrading works in the footway area. No stormwater runoff shall be permitted to concentrate or flow across/into adjoining private properties as a result of the regrading of the footpath to match the new driveway profile servicing No. 24 Walton Crescent. I note that the applicant does not challenge any aspect of the s 138 approval in these proceedings.

24 On 22 August 2006, Mr Robinson forwarded a memorandum to the General Manager which said that it attached, as discussed, a report for the second modification application which made a favourable recommendation, "however, the shadow diagrams requested have not been submitted and the officers have carried out their own assessment of the likely shadow impacts". The memorandum concluded, "Please advise me of any concern and I am happy to discuss".

25 The attached report of Mr Robinson described the proposed modification as follows: Application under the provisions of section 96(1A) has been made to modify Council's consent as follows:

· Convert approved garage at ground level to a rumpus room and construct a new four (4) car garage (approximately 91m2) creating a new level above the approved garage area and modify the front boundary fence. · The applicant also seeks Council's consent to raise Council footpath levels to accommodate a new vehicular ramp bridging from the front boundary to the new garage floor level (top of approved garage roof slab already constructed), in order for vehicles to be able to access the proposed garage.

26 Under the heading "Assessment", the report contained the following: Section 96 of the Environmental Planning and Assessment Act allows council to modify consent if:

(a) It is satisfied that the development to which the consent as modified relates is substantially the same development,

It is considered that the proposed modifications are significant in that they add a new level above the approved ground level garage and approximately 91m2 of additional floor space.

However, the applicant has referred to the position held by the Land and Environment Court of NSW in respect of substantially the same development and the principles established by Bignold J in Moto Projects No. 2 P/L v North Sydney Council in that, both qualitative and quantitative aspects of an application were relevant to its remaining substantially the same. Council agreed has that the development will remain substantially the same and will assess the application under Section 96(1A) of the Environmental Planning and Assessment Act 1979.

(b) Has consulted with the relevant Minister, public authority or approval body in respect of a condition imposed as a requirement of a concurrence to the consent or in accordance with the general terms of an approval,

(c) Has notified the application in accordance with the Regulations and Council's Development control Plan for Notification, and

(d) Has considered any submissions made concerning the proposed modification within the period prescribed by the regulations or provided by the Development Control Plan.

Council did not consider it necessary to notify adjoining and nearby property owners and occupiers of the proposed modifications as the development remains unchanged from the previous Section 96 refused. The insufficient information related to the previous application has been submitted with the current Section 96 application and the following assessment is considered with the previous submissions.

27 The report then addressed considerations under s 79C of the EPA Act. It identified the revised front and side setback non-compliances with the applicable development control plan as "minor and reasonable in the context of surrounding development". It observed that the already approved building on No. 24 did not provide a minimum of three hour's sunlight to No. 22's north-western windows and said that, "the proposed modifications will not affect the level of direct solar access to the north-western windows of the adjoining property at No. 22. Any additional shadow created by the proposed garage will be cast on the roof of the house of No. 22 Walton Crescent and on its blank masonry wall to the two storey garage structure". In this context the report referred to the photographs lodged by the first respondent as supporting this analysis.

28 With respect to bulk and scale, the report said that: Bulk and Scale

The original modification proposed created a dominant garage structure when viewed from the street and the front outdoor private living area of adjoining property No. 22 Walton Crescent. The original proposal did not consider the visual amenity of the adjoining property No. 22 Walton Crescent. The application has reduced the bulk and scale of the new garage by complying with side setback and maximum unarticulated wall length controls and has lowered the overall height of the garage.

It is considered that the bulk and scale of the garage modification is acceptable in the context of the subject site's residential 2(b) zoning and surrounding development that includes a mix of multi-level residential flat buildings (adjoining) and large single dwelling houses. The appearance of bulk and scale is further reduced by the proposal to raise and re-grade Council's footpath, effectively reducing the height of the new garage. The additional information submitted to Council by the applicant regarding the re-grading of Council's footpath has satisfied the requirements of Council's assessing Engineer subject to conditions.

29 The report concluded that: The proposed modification to the development originally consented to is considered acceptable having regard to the provisions of s 79C and 96 of the Environmental Planning and Assessment Act 1979.

30 A section headed "Resolution" at the end of the report was signed by Mr Robinson stating as follows: The Manager Assessments and Regulatory Services acting under authority delegated pursuant to S378 of the Local Government Act, 1993 having considered the report dated 18 August 2006 in respect of DA No 220/2004 in accordance with the relevant provisions of the Environmental Planning and Assessment Act, 1979, specifically S.79C and applicable environmental planning instruments hereby resolved that the report be adopted and implemented as recommended. 31 The Council issued the modification approval to the second modification application on 24 August 2006, subject to the conditions set out in the report.

32 Mr Russell Hand, town planner, gave evidence on behalf of the applicant. Mr Hand said that in his opinion the proposed modification had significant visual impacts by reason of the bulk and scale of the elevated double wide garage which was uncharacteristic of the street. Mr Hand did not consider that these impacts could be described as "minimal". Mr Hand said that the garage would reduce solar access to at least one of the bedroom windows along the northern elevation of No. 22 Walton Crescent, which he also did not consider a "minimal" impact. Mr Hand did not consider that the modified development would be substantially the same as the approved development for six reasons: - (i) adding substantial bulk and scale to the streetscape, (ii) adding an additional level forward of the approved building line, (iii) converting the approved garage to habitable floor space forward of the approved building line, (iv) adding 91 sqm of floor space to the development, (v) relocating the vehicle access point from the north-west to the south-east corner of the site, and (vi) significant bulk and scale, overshadowing and potential flooding impacts. Mr Hand had five years experience as a planner, including two years undertaking development assessment at Blacktown City Council.

33 Mr David Furlong, town planner, gave evidence for the first to third respondents. Mr Furlong was the author of the Statement of Environmental Effects. Mr Furlong, having read Mr Hand's affidavit, considered that the modification was substantially the same development and that the modification was minor and involved insignificant environmental impact for various reasons including: - (i) there was no loss of privacy, (ii) the western side of No. 22 was already overshadowed by the approved development, (iii) all internal and external living areas of No. 22 had no impact from the modification, (iv) the overall height of the garage was lower than the approved height for the dwelling, and (v) given the eclectic nature of the streetscape, there was no impact on the street and the street was the back door of properties along it which were all orientated to the water. Mr Furlong also said that there was no capacity for directing stormwater flows on to No. 22 as claimed by Mr Hand, as the existing garage at No. 22 was set at a higher level than the proposed access point to No. 24. Mr Furlong is a town planner of some 20 years experience and was formerly the Director of Planning and Environmental Services at Drummoyne Council and Canada Bay City Council. The applicant's counsel cross-examined Mr Furlong, but I do not consider that anything material turns on that cross-examination.

34 Importantly, Mr Robinson, the decision-maker, gave evidence. Mr Robinson is a town planner. He has held the position of Senior Manager, Assessment and Regulatory Services at the Council for some four years. Prior to that, Mr Robinson was in private practice and was also employed by North Sydney, Auburn, South Sydney, City of Sydney, Fairfield and Singleton Councils. He holds a degree in Urban and Regional Planning with honours from the University of New England, conferred 1988.

35 In his affidavit, Mr Robinson said that: 31. On 24 August 2006 I approved the second modification application under delegation. Hereunto attached as Annexure Z is a copy of the Notice of Determination of 24 August 3006 relating to the second modification application. Exhibited to me at the time of swearing this affidavit and marked PR3 are the approved modification drawings.

32. When I prepared my report on the second modification application, I was aware that it was an application lodged pursuant to section 96(1A) of the Act. The form of the application submitted to Council specified the nature of the application being one pursuant to section 96(1A) as well as the supporting Statement of Environmental Effects lodged with the second modification application.

33. In assessing the second modification application I was satisfied that the proposed modification would have minimal environmental impact for the following reasons: a The site inspection carried out by me as part of the assessment when I considered the nature of the proposed works in the context of surrounding development. b The surrounding development, particularly at the street frontages including built form by way of fencing and/or garage structures having a bulk and scale similar to the proposed built form of the garage structure and in my opinion reflective of the type of built form envisaged within the 2(b) zone. c All of the properties opposite the subject premises being on the high side of the street with there being little or minimal loss of views enjoyed by these premises caused by the proposal. d These being minimal loss of views to the Parramatta River from the public pathway at the front of the subject premises. e The fact that the improvements on the premises prior to the 2004 consent included a double garage structure at the street frontage. f There being no or minimal overshadowing impact caused by the proposal to the premises immediately adjoining the subject premises. g No part of the proposal being visible from the Parramatta River. h The relevant matters pursuant to section 79C of the Act referred to in my report assessing the application. 34. When I assessed the second modification application I was aware of and took into consideration the submissions made by G Bechara and S Sciacca copies of which submissions are attached to my affidavit as annexures "K" and "L" respectively.

It was not necessary to notify the second modification application because I was of the opinion that the amenity of the adjoining and nearby premises including the properties of G Bechara and S Sciacca would not be detrimentally affected by the proposed modification. I was also of the opinion that the second modification application did not give rise to any new or additional works beyond the works set out in the first application for modification, which would be likely to result in any new issues or concerns beyond those in the two submissions received by Council from G Bechara and S Sciacca. Further, the second application for modification was ameliorative, in respect of height and scale of the proposed garage when compared with the first application for modification. 35. When I assessed the second modification application I did so having regard to the provision of s96(1A) including whether or not the proposal would be substantially the same after approval as the consent granted by Court on 16 July 2004. In arriving at my decision to approve the modification I formed the opinion that the modified proposal would be substantially the same development to which consent was granted on 16 July 2004. In this respect I had regard to the following matters, in arriving at my opinion: a The comparison made by me of the consent plans of 2004 and the second modification plans. b The application and all supporting documentation. c The nature of the changes sought, generally being garaging at the street frontage associated with a dwelling house use, having regard to garaging of similar floor area forming part of the 2004 consent albeit that such garaging was generally below street level. d Consideration of all of the matters in paragraph 33 above. e The additional floor space attributed to the second application for modification having no impact upon amenity of streetscape issues. f I also considered the decision of Justice Bignold in Moto Projects No. 2 v North Sydney Council .

36 Mr Robinson responded to Mr Hand's affidavit explaining in some detail his reasons for concluding that the proposed modification would be of minimal environmental impact and substantially the same development with respect to issues including bulk and scale and streetscape overshadowing and stormwater.

37 Mr Robinson was cross-examined by the applicant's counsel. Mr Robinson agreed that he had meant what he said on page three of his report, that the proposed modifications were significant in that they added a new level above the approved ground level garage and approximately 91 sqm of additional floor space. He agreed that the building form was significant. He rejected the proposition that this observation in his report was questioning whether the proposed modification was substantially the same development. He said that he was very familiar with the decision of Bignold J in Moto Projects. He agreed that he had decided that notification of the second modification application was unnecessary and that his report said that this was so because the second modification application was substantially unchanged from the first. He said he had also considered that the second modification application was "ameliorative". He agreed that this was not reflected in his report but said that not all his thought processes were reflected in the report. With respect to the stormwater issue Mr Robinson said, amongst other things, that he had taken advice from the Council's engineer. With respect to overshadowing, Mr Robinson did not consider further shadow diagrams necessary.

38 Both Mr Furlong and Mr Robinson were asked questions by the applicant's counsel about the fact that Mr Furlong used to be Mr Robinson's supervisor at the Council and that Mr Robinson was aware that Mr Furlong was an experienced planner. The applicant's counsel explained this line of questioning as related to a submission that Mr Hand was the only independent planner and that, accordingly, his opinion ought to be given determining or greater weight. The applicant's counsel relied on ASIC v Rich [2005] NSWSC 149 to support this submission. I do not consider this submission tenable by reference either to the facts readily acknowledged by both Mr Furlong and Mr Robinson about Mr Furlong's former employment or the decision in ASIC v Rich. In particular, Mr Robinson was the decision maker giving evidence about the reasons he concluded that the second modification application could and should be approved under s 96(1A). The cross-examination left intact the whole of Mr Robinson's evidence as set out in his affidavit. The process of cross-examination did not, for example, disclose that Mr Robinson had been unaware of the nature of the application lodged (that is, under s 96(1A) not s 96(2)) or had been unaware of or misunderstood some important factual matter which undermined the validity of the reasoning process in which he had engaged. This is critical to my consideration of the applicant's claims below in the context of the applicable principles.

39 The applicant submitted that the Council had misdirected itself in law with respect to the statutory test set by s 96(1B) of the EPA Act. The applicant said that the misdirection was apparent from that part of Mr Robinson's report under the heading "It is satisfied that the development to which the consent as modified relates is substantially the same development" on page three and quoted above. The applicant said that the facts found by Mr Robinson (that is, the proposed modifications were "significant") necessarily fell outside the statutory requirement in s 96(1AB). The subsequent attempt by Mr Robinson, by reference to Moto Projects, to bring the facts within the statutory remit, the applicant said, necessarily involved an error of law (Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 156).

40 This claim involved several difficulties. First, Moto Projects itself was a class one appeal against a council's refusal to modify a development consent under s 96(2). In that context, Bignold J set out the history of the power to modify consent and concluded at [54] - [56] that: 54. The relevant satisfaction required by s96(2)(a) to be found to exist in order that the modification power be available involves an ultimate finding of fact based upon the primary facts found. I must be satisfied that the modified development is substantially the same as the originally approved development. 55. 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. 56. 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).

41 As the trier of fact vested with all the functions that the Council had when it determined the application, Bignold J in Moto Projects concluded that the different access arrangement proposed in that matter was a difference in the essence and essential features of the development, with the consequence that the modification power in s 96(2) was not available. Nothing in that conclusion suggests that it was, or would be, an error of law for a primary decision maker to describe one or more aspects of a proposed modification as "significant", and nevertheless conclude that the modified development would remain substantially the same as the approved development. Similarly the decision of Cowdroy J in Austcorp No 459 Pty Limited v Baulkham Hills Shire Council (2002) 122 LGERA 205, another merit appeal, does not support the applicant's argument.

42 Mason P in North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468 at 475, characterised the gateways through which an applicant for modification had to pass as "narrow". Although the section was subsequently amended, the provision requiring the consent authority to be satisfied that the modified development would be "substantially the same" remained, and unquestionably is a constraint on the power of a consent authority. It is a constraint expressed, however, not by reference to an objective fact, but to a state of satisfaction of the consent authority, in this case Mr Robinson as the Council's the delegate. That feature of the statutory scheme does not immunise the decision from judicial review. The required state of satisfaction must be formed absent any material misdirection in law and must be reasonably open in the particular circumstances. n this context, see the review of Gummow J in Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at [130] to [137]. Mr Robinson said that he formed the required state of satisfaction in terms. Pointing to one paragraph in his report describing the additional level as significant, does not establish that Mr Robinson asked the wrong question or gave an incorrect meaning to the statutory test.

43 Secondly, Mr Robinson rejected the applicant's construction of that part of his report when the applicant's counsel put this matter to him. Mr Robinson said that he had not concluded that the modified development was not substantially the same by reason of the additional built form being significant, and then applied Moto Projects in order to reach a different conclusion. I accept Mr Robinson's evidence to that effect.

44 Thirdly, the applicant's approach is inconsistent with the fundamental requirement that a decision maker's reasons must be read as a whole and fairly (Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Others (1996) 185 CLR 259 at 291 per Kirby J). Leaving aside Mr Robinson's evidence in the proceedings, it is quite artificial to focus on one paragraph in a 14 page report and suggest that that paragraph, by reason of its content and location, discloses that the decision maker had reached a final conclusion on a matter by reference only to what had been said in the report to that point. Mr Robinson was the supervisor of Mr King and had signed off on the earlier recommendation for refusal of the first modification application. He was obviously well aware of the issues with respect to the proposed modification before he put pen to paper. It would be wrong to approach his report as if it involved some lock step reasoning process with each thought standing in perfect isolation, and uninformed by the whole. For example, I have no doubt that when Mr Robinson wrote that the proposed modifications were significant in that they added a new level of 91 sqm of floor space, he was aware that the earlier report had said the same thing. I also have no doubt that Mr Robinson was aware that, in his own mind, the new built form would not create any unacceptable impact (as the report subsequently stated).

45 Fourthly, as Mr Robinson said, the report does not set out the whole of his thought processes. While reasons in a report are readily attributed to collegiate decision makers who adopt a report as their own without more (see for example Telstra Corporation Ltd and Another v Hurstville City Council and Others (2002) 118 FCR 198 at [50]), that process of inference drawing cannot be applied in cases where the individual decision maker comes forward, gives evidence, discloses precisely why he reached the opinions he did and says that the whole of his reasoning process was not disclosed in the report.

46 Finally, provided the decision maker addresses the correct question (is the development to which the consent as modified related 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 range of facts relevant to the answer to that question is left to the decision-maker. Minds may reasonably differ about those facts.

47 The applicant has neither pleaded nor pointed to any fact that Mr Robinson did not consider as one mandatory and material to the discharge of the statutory obligation. There is no principle of law that a proposed modification identified by the decision maker as one that adds an additional level to part of an approved development, comprising additional floor space (even a material amount of additional floor space) is necessarily incapable of falling within s 96(1A)(b). The statutory question must be asked and answered with respect to the particular circumstances of the individual modification application, which is precisely what Mr Robinson said he did.

Section 96(1A)(b) state of satisfaction not reasonably open

48 The principles applicable to review for Wednesbury unreasonableness are well known (Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223). Biscoe J surveyed many of the familiar judicial admonitions about the very confined nature of review on this ground in Save our Street Incorporated v Settree (2006) NSWLEC 570 at [27] to [31]. To that survey, I would add only a reference to The Council of the City of Parramatta v Pestell (1972) 128 CLR 305 at 323 where Menzies J observed that: There is, however, a world of difference between justifiable opinion and sound opinion. The former is one open to a reasonable man; the latter is one that is not merely defensible - it is right. The validity of a local rule does not depend upon the soundness of a council's opinion; it is sufficient if the opinion expressed is one reasonably open to a council. Whether it is sound or not is not a question for decision by a court.

49 The distinction drawn by Menzies J focuses attention on the critical difference between a decision which is so devoid of plausible justification as to amount to an abuse of power (with which the courts will interfere) and a decision which is reasonably open even though the court may not consider that decision to be sound or right (with which the courts will not interfere). This distinction must be kept in mind in a case such as the present where, as I have said, minds may reasonably differ about the application of ss 96(1A)(a) and (b) to any particular modification application.

50 The applicant pointed to five matters as making it patent that the state of satisfaction formed by Mr Robinson under s 96(1A)(b) was not reasonably open, namely: - (i) the increase in bulk and scale, (ii) the very different appearance to the street, (iii) the additional level of floor space in the new garage, (iv) the additional habitable floor space introducing the new rumpus room use, and (v) the increased footpath level and associated potential stormwater issue. According to the applicant, something of this magnitude could not possibly be a modification application, having regard to the requirement that the essence of the development remain the same.

51 Mr Robinson was an experienced planner, well familiar with the terms of s 96 who reached an opinion about an application readily able to be understood by reference to the modification application plans and the statement of environmental effects. All of the facts relied upon by the applicant, support the applicant's claim of manifest unreasonableness, were obvious on the face of the modification application and were otherwise addressed by Mr Robinson through the assessment process. The cross-examination of Mr Robinson did not disclose any matter about which he was unaware or which was capable of undermining the conclusions he reached as conclusions reasonably open in all of the circumstances.

52 The fact that Mr Hand reached a contrary view, and Mr Furlong shared Mr Robinson's view, support the conclusion that it was reasonably open for a decision maker to reach different opinions about this modification application in terms of s 96(1A)(b). Finding that I prefer one opinion to another cannot advance resolution of this claim. That would be required if the modification application had come before me on a merit appeal in class one, in which event I would be bound not only to reach a reasonably open opinion about s 96(1A)(b), but also the opinion that I believed sound and right.

53 In this matter, I am unable to characterise Mr Robinson's opinion with respect to s 96(1A)(b) as one so devoid of plausible justification as to be an abuse of power (Wyong Shire Council v MCC Energy Pty Ltd (2005) 139 LGERA 296 at [79]). The applicant has not discharged its onus to establish that Mr Robinson's state of satisfaction under s 96(1A)(b) was not reasonably open.

Section 96(1A)(a) state of satisfaction not reasonably open.

54 Decisions made by consent authorities as to the powers available under s 96 have potentially important consequences, particularly for notification. All s 96(2) applications must be notified by operation of cl 119(2) of the Environmental Planning and Assessment Regulation 2000, but s 96(1A) applications need only be notified if a development control plan so provides (because the regulations makes no provision for notification of such applications). In this matter, the applicant was notified of the first but not the second modification application. That fact may well have played a part in the applicant's sense of grievance about the Council's handling of this modification application. However, the Court's jurisdiction is to declare and enforce the law, not to cure perceived administrative justice (Attorney-General for the State of New South Wales v Quin (1990) 170 CLR 1 at 35-36 per Brennan J).

55 Mr Robinson provided detailed reasons for the conclusion he reached that the proposed modification was of minimal environmental impact. Mr Robinson's affidavit was particularly important in this regard, because it is apparent that the assessment section of the Council's report, which I infer to be a pro-forma document in terms of its structure, does not have a section specifically directed to this required statutory matter. Instead questions of impact were dealt with in that part of the report dealing with s 79C considerations. A report that adopts that structure is undesirable because it involves a risk of an inference being drawn that the question of impact was dealt with by reference to s 79C and not s 96(1A)(a) - when the test imposed by the latter is different from the former. In this case however, not only did the applicant not make any claim to that effect, but also Mr Robinson gave evidence which excluded the possibility of any such inference being drawn.

56 Mr Robinson said that he considered the test as set out in s 96(1A)(a) and reached his conclusion that the proposed modification was of minimal environmental impact by reference to various facts including all matters relied upon by the applicant. I accept that evidence. The applicant's cross-examination did not disclose any matter about which Mr Robinson was unaware or which was capable of undermining the conclusions he reached, as conclusions not reasonably open in all of the circumstances.

57 In King, Markwick, Taylor & Ors v Bathurst Regional Council [2006] NSWLEC 505 at [84], I said that "minimal", in the context of s 96 construed as a whole, must take its ordinary meaning of "very small" or "negligible". The "minimal" requirement qualifies the "environmental impact" of the proposed modification, rather than the proposed modification itself - which is subject to the "substantially the same" requirement in s 96(1A)(b). Hence, the focus must be on the impact or effect of the modification on the environment. Given the very broad and inclusive definition of "environment" in s 4(1) of the EPA Act, it is necessarily a matter for the consent authority to identify for itself the relevant categories of potential impacts.

58 Nothing in the evidence suggested that Mr Robinson applied a different test from that required by s 96(1A)(a) and no such suggestion was put to him by the applicant's counsel. The fact that Mr Hand did not share Mr Robinson's opinion or indeed that I myself may have reached a different opinion in a merits appeal, is not capable of resolving this judicial review application against the respondents. Having regard to the principles applicable to a claim of Wednesbury unreasonableness, the applicant has not discharged its onus to establish that Mr Robinson's state of satisfaction under s 96(1A)(a) was not reasonably open or so devoid of plausible justification as to amount to an abuse of power.

59 I have quoted the relevant extract from the DCP above.

60 Had the evidence consisted only of Mr Robinson's report, there might have been some basis to infer that the necessary opinion under the DCP had not been formed, because the report identified the prior notification as the reason notification of the second modification application was not undertaken. However, the applicant made no such claim and Mr Robinson's affidavit excluded the possibility of drawing any such inference. Mr Robinson said that he formed the opinion required by the DCP in terms. I accept that evidence. Nothing was disclosed in cross-examination capable of supporting the applicant's submission that the opinion reached by Mr Robinson under the DCP was other than properly formed and reasonably open in the circumstances.

61 The applicant has not discharged its onus to establish that the opinion formed under the DCP by Mr Robinson was so devoid of plausible justification as to amount to an abuse of power. It necessarily follows that the applicant has not established any breach of s 96(1A)(c) of the EPA Act.

62 I observed above that the applicant was not notified of the second modification application. As Mason P observed in Michael Standley at 475, decision making under the EPA Act is "no stranger to controversy". More pertinently for present purposes, his Honour observed that nothing prevented a Council from carrying out public consultation "if it thinks that this would aid it in its decision making referable to a modification". A council is entitled to take the view that its administrative decision-making will be enhanced by notification. A more, rather than less, liberal approach to notification, (irrespective of the absence of an obligation to notify) can contribute to the objects of the EPA Act, (see s 5(c) in particular). Ultimately, of course, these are matters of policy for a consent authority on a case-by-case basis - in respect of which this Court has no jurisdiction to interfere.

63 The applicant's grounds of challenge to the modification approval of 24 August 2006 have not been upheld. The class four application must be dismissed and I propose the following orders: (1) The class four application is dismissed.

(2) The applicant is to pay the respondent's costs of the proceedings as agreed or as assessed.

(3) Order that exhibit 4 be returned to the fourth respondent. ****************************

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