Botany Bay City Council v Marana Developments Pty Ltd

CLR 1 Kirk v Industrial Commission of New South Wales [2010] HCA 1; (2010) 239 CLR 531 Kostas v HIA Insurance Services Pty Limited [2010] HCA 32; (2010) 241 CLR 390 Marana Developments Pty Limited v Botany City Council [2011] NSWLEC 1110 Maurici v Chief Commissioner of State Revenue [2001] NSWCA 78; 51 NSWLR 673 Metropolitan Local Aboriginal Land Council v Minister Administering the Crown Lands Act [2006] NSWLEC 57; (2006) 145 LGERA 276 Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1966] HCA 40; (1986) 162 CLR 24 Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611 Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 42; (2004) 207 ALR 12 Moto Projects (No 2) Pty Ltd v North Sydney Council [1999] NSWLEC 280; (1999) 106 LGERA 298 Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 R v Blakeley; Ex parte Association of Architects, Engineers, Surveyors and Draughtsmen of Australia [1950] HCA 40; (1950) 82 CLR 54 R v Connell; Ex parte v Hetton Bellbird Collieries Ltd [1944] HCA 42; (1944) 69 CLR 407 R v Federal Court of Australia; Ex parte Pilkington ACI (Operations) Pty Ltd [1978] HCA 60; (1978) 142 CLR 113 Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002; Appellant S106/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 30; (2003) 198 ALR 59 Re Refugee Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 Roads & Traffic Authority of New South Wales v Peak [2007] NSWCA 66 Scicluna v NSW Land and Housing Corporation [2008] NSWCA 277; (2008) 72 NSWLR 674 Segal v Waverley Council [2005] NSWCA 310; (2005) 64 NSWLR 177 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 Svedas v Council of the City of Sydney [2011] NSWLEC 215 Thaina Town (On Goulburn) Pty Ltd v City of Sydney Council [2007] NSWCA 300; (2007) 71 NSWLR 230 Timbarra Protection Coalition Inc v Ross Mining NL [1999] NSWCA 8; (1999) 46 NSWLR 55 Tuscany Farm Holdings v Hawkesbury City Council [2011] NSWLEC 18 Vacik Pty Ltd v Penrith City Council [1992] NSWLEC 8 Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority [2009] NSWCA 178; (2009) 168 LGERA 1 Wainohu v State of New South Wales [2011] HCA 24; (2011) 243 CLR 181 Warehouse Group (Australia) Pty Ltd v Woolworths Pty Ltd [2005] NSWCA 269, (2005) 141 LGERA 376 Waterford v Commonwealth [1987] HCA 25; (1987) 163 CLR 54 Woolworths Ltd v Pallas Newco [2004] NSWCA 422; (2004) 61 NSWLR 707 Zhang v Canterbury City Council [2001] NSWCA 167; (2001) 51 NSWLR 589 Category: Principal judgment Parties: Botany Bay City Council (Appellant) Marana Developments Pty Ltd (Respondent) Representation: Mr T Hale SC (Appellant) Mr I Hemmings (Respondent) Houston Dearn O'Connor (Appellant) Reid & Vesely Solicitors (Respondent) File Number(s): 10474 of 2011 Decision under appeal Citation: Marana Developments Pty Limited v Botany City Council [2011] NSWLEC 1110 Date of Decision: 2011-05-18 00:00:00 Before: Morris C

Judgment 1This is an appeal by Botany Bay City Council (the Council) under s 56A of the Land and Environment Court Act 1979 (the Court Act) against the decision of a commissioner to approve a modification application lodged by Marana Developments Pty Limited (Marana) in relation to a residential flat development in Marana Developments Pty Limited v Botany City Council [2011] NSWLEC 1110. The modification application was considered by the Commissioner under s 96(2) of the Environmental Planning and Assessment Act 1979 (the EPA Act). 2Such an appeal is enabled on a question of law. A number of appeal grounds are identified in the grounds of appeal. It is necessary to set these out in full to appreciate the way the matter has proceeded and the parties' submissions. 3The grounds of appeal are as follows:

1. Whether on the evidence (a)the Commissioner had jurisdiction pursuant to section 96(2)(a) of the Environmental Planning and Assessment Act 1979 ("the Act") to grant the modification application the subject of the proceedings. (b)a reasonable person could form the opinion that the requirements of section 96(2)(a) were satisfied.
2. Whether the Commissioner: (a)failed to give sufficient reasons for her finding that "the test in section 96(2)(a) is passed". (b)erred in making the finding referred to [in] (a) without first having found that within the meaning of Clause 115(1A)(c) of the Environmental Planning and Assessment Regulation 2000 ("the Regulations") "the modifications do not diminish or detract from the design quality, or compromise the intent of the development for which the development, was granted". (c)erred in holding that she did not have sufficient evidence that the size/quality of the units were an essential element of the approved development.
3. Whether the Commissioner erred in holding that there was no evidence that within the meaning of Clause 115(1A)(c) of the Regulations the modification: (a)diminished or detracted from the design quality, or compromised the design intent, of the development to which the development consent was granted; or (b)diminished the design quality of the development.
4. Whether the Commissioner failed to properly take into consideration as required by section 79C(1)(a)(iii) the following provisions of the city of Botany Bay Development Control Plan No 35 - Multi Unit Housing and Residential Flat Buildings ("DCP No 35"): (a)Clause 3.3.2 Control C6 in respect of dwelling sizes. (b)Clause 3.3.2 Control C7 in respect of unit mix. (c)Clause 3.3.15 Control C2 in respect of solar access.

Legislative provisions relevant to Commissioner's decision 5Sections 79C(1)(a)(i) and (b) of the EPA Act provide: (1) Matters for consideration-general In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application: (a) the provisions of: (i) any environmental planning instrument, ... (iii) any development control plan, ... (b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality, 6Section 96 relevantly provides: ... (2) Other modifications 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 development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted and before that consent as originally granted was modified (if at all), and ... (3) In determining an application for modification of a consent under this section, the consent authority must take into consideration such of the matters referred to in section 79C (1) as are of relevance to the development the subject of the application. (4) The modification of a development consent in accordance with this section is taken not to be the granting of development consent under this Part, but a reference in this or any other Act to a development consent includes a reference to a development consent as so modified. 7Clause 115(1A) of the Environmental Planning and Assessment Regulation 2000 (the EPA Regulation) (as then in force) provided: 115 What are the requirements for an application for modification of a development consent? ... (1A) In addition, an application for the modification of a development consent under section 96 (2) or 96AA (1) of the Act, if it relates to residential flat development for which the development application was required to be accompanied by a design verification from a qualified designer under clause 50 (1A), must be accompanied by a design verification from a qualified designer, being a statement in which the qualified designer verifies that: (a) he or she designed, or directed the design, of the modification of the residential flat development, and (b) the residential flat development, as modified, achieves the design quality principles set out in Part 2 of State Environmental Planning Policy No 65-Design Quality of Residential Flat Development , and (c) the modifications do not diminish or detract from the design quality, or compromise the design intent, of the development for which the development consent was granted. 8Clause 6 of SEPP 65 provides: 6 Relationship with other environmental planning instruments In the event of an inconsistency between this Policy and another environmental planning instrument, whether made before or after this Policy, this Policy prevails to the extent of the inconsistency. 9Clauses 30A(1) and (2) of SEPP 65 provide: 30A Standards that cannot be used as grounds to refuse development consent for residential flat buildings (1) A consent authority must not refuse consent to a development application for the carrying out of residential flat development on any of the following grounds: (a) ceiling height: if the proposed ceiling heights for the building are equal to, or greater than, the minimum recommended ceiling heights set out in Part 3 of the Residential Flat Design Code , (b) apartment area: if the proposed area for each apartment is equal to, or greater than, the recommended internal area and external area for the relevant apartment type set out in Part 3 of the Residential Flat Design Code . Note. The Building Code of Australia regulates the minimum ceiling heights for residential flat buildings. (2) Nothing in this clause permits the granting of consent to a development application if the consent authority is satisfied that the proposed development does not demonstrate that adequate regard has been given to the design quality principles in Part 2 of this Policy. Note. The provisions of this clause do not impose any limitations on the grounds on which a consent authority may grant development consent. 10Part 3 of the NSW Department of Planning's Residential Flat Design Code (RFDC) provides guidelines for improving building design including in relation to internal layout and residential amenity. Page 69 contains a table listing internal and external area sizes in square metres for different apartment types. Underneath the table is a note stating "This table and the accompanying illustrations [on p 68] provide information on a variety of unit types. Dimensions, areas and furniture layouts are included. These examples are a comparative tool for recognising well-organised, functional [sic], and high quality apartment layouts." One of the bullet points in the "Rules of Thumb" section on the bottom of that page states "Buildings not meeting the minimum standards listed above, must demonstrate how satisfactory daylighting and natural ventilation can be achieved, particularly in relation to habitable rooms ..."

Preliminary question whether appeal ground 1 available 11As framed, ground 1 raises the issue of whether the Commissioner had jurisdiction to grant the modification application because no reasonable person could form the opinion that the requirements of s 96(2)(a) were satisfied on the evidence. This was submitted to be a finding on a jurisdictional fact which required the Court in this appeal to review the relevant evidence before the Commissioner to reach a conclusion about satisfaction of the matters in s 96(2). Such a ground of appeal in a s 56A appeal is novel so far as I am aware and no authority where such a ground of appeal has been considered in that context was presented by the Council's counsel. As it was unclear whether this ground raised a question of law, I determined that the issue of whether it did should be determined first. This approach is provided for by r 28.2 of the Uniform Civil Procedure Rules 2005 (UCPR) which provides: The court may make orders for the decision of any question separately from any other question, whether before, at or after any trial or further trial in the proceedings. 12This rule applies in Class 1 proceedings as it is not an excluded rule under the UCPR Sch 1 column 4. In Tuscany Farm Holdings v Hawkesbu ry City Council [2011] NSWLEC 18, another Class 1 matter, I referred at [7] to the principles applicable to determining whether a separate question should be ordered pursuant to this rule as identified by Jagot J in Metropolitan Local Aboriginal Land Council v Minister Administering the Crown Lands Act [2006] NSWLEC 57; (2006) 145 LGERA 276 at [12]. If determined contrary to the Council's submissions the Court will not review the evidence that was otherwise before the Commissioner relevant to her finding of satisfaction in relation to s 96(2)(a). The parties have therefore filed written submissions addressed to the issue of: Whether or not the Commissioner had jurisdiction, turning upon whether the test for satisfaction in s 96(2) had been met, gives rise to a question of law for the purposes of s 56A of the LEC Act. 13The written submissions supplement oral submissions made at the hearing.

Council's submissions 14Under s 96(2)(a) a consent authority can only modify a development consent if satisfied of the matters in s 96(2)(a). The satisfaction of the consent authority (here the Commissioner) is a condition precedent to the exercise of the discretion and is a jurisdictional fact per Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 42; (2004) 207 ALR 12 at [37] per Gummow and Hayne JJ adopted with approval in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at [90] by Gummow and Kiefel JJ and at [102] by Crennan and Bell JJ. Absent satisfaction in conformity with s 96(2) the statute does not confer jurisdiction or power to exercise the discretion under s 96(2) and to grant the modification. This is self-evidently a question of law. 15If the condition precedent is not met the satisfaction was one that "can be informed by a reasonable man who correctly understands the meaning of the law under which he acts. If it is shown that the opinion actually formed is not an opinion of this character, then the necessary opinion does not exist": R v Connell; Ex parte v Hetton Bellbird Collieries Ltd [1944] HCA 42; (1944) 69 CLR 407 at [430] per Latham CJ. The formulation adopted by Crennan and Bell JJ in SZMDS (at [130]) is that "the state of satisfaction must be one that could be formed by a reasonable person". If on the evidence before the Commissioner a reasonable person could not form the opinion that the requirements of s 96(2) were satisfied then the mandated state of satisfaction had not been met: SZMDS at [130] - [131]. Consequently the condition precedent to the exercise of the jurisdiction/power under s 96(2) has not been met in that the jurisdictional fact had not been established (ground 1 of the appeal). The Commissioner determined the appeal by granting the modification on the mistaken assumption that s 96(2) had conferred jurisdiction upon her. 16The question of whether or not s 96(2) conferred jurisdiction on the Commissioner is a question of law within the meaning of s 56A(1) of the Court Act. In Kirk v Industrial Commission of New South Wales [2010] HCA 1; (2010) 239 CLR 531 similar issues arose in relation to the Industrial Court of NSW. The High Court at [55] held that any statutory provision which purports to strip the Supreme Court of a state of its authority to confine inferior courts within the limits of their jurisdiction by granting relief on the ground of jurisdictional error is beyond the powers of the state legislature. If s 56 and s 56A do not allow review in the Court or the Supreme Court then those sections are unconstitutional. 17Section 56A (and s 57) must be read with s 56. Subject to the appeal provisions in Div 2 Pt 5 of the Court Act, the Commissioner's determination is final and conclusive. The effect of Marana's argument is that the power under s 56A is not reviewable even where the Commissioner had no jurisdiction or power to modify the consent. As s 57 is in the same terms as s 56A the same approach would mean that the Court of Appeal has no power to review a decision of a judge of the Court who exceeds jurisdiction in hearing and determining an appeal in Classes 1, 2, 3 and 8. Codling v Manly Council [2011] NSWLEC 57 at [28] supports the Council's approach as it recognised that a jurisdictional fact is a question of law.

Marana's submissions 18The question sought to be raised is not a question of law but a question of fact. It requires a consideration of whether on the facts as found by the Commissioner the Court had power (jurisdiction) to hear and determine the merits of the subject modification application exercising the power of the Council under s 39(2) of the Court Act. It is self-evident that the enquiry undertaken by the Commissioner involved a question of fact not law. This ground of appeal under s 56A is not competent. 19For the Commissioner to misinform herself about the correct legal test could amount to error but that is not what is raised by the Council. She correctly stated the applicable legal test, made the findings of fact as mandated by s 96(2) and applied those facts to the correct legal question. The question of whether the Commissioner has jurisdiction is directed solely to whether the facts needed to engage s 96(2) were present. The question the Commissioner asked herself and answered was not a question of law. The Commissioner addressed the correct jurisdictional test and therefore had the power to determine the modification application if satisfied that the proposed amendments would result in a development which was "substantially the same" as originally approved. Evidence was present to support her findings. 20The Council's argument relying on s 57 of the Court Act is not supported by Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority [2009] NSWCA 178; (2009) 168 LGERA 1 at [20] per Basten JA (Beazley and Young JJA agreeing). The Commissioner did not have to identify any question of law as a precondition to engaging the Court's jurisdiction. She identified the correct legal test for engaging the Court's jurisdiction in Moto (No 2) . No question of law was the sole subject matter of the Class 1 appeal and the Commissioner's decision was not otherwise a question of law. It is the "underlying decision" from whose decision the appeal lies, and not the appeal itself which must be "on a question of law" ( Brinara Pty Ltd v Gosford City Council [2010] NSWLEC 230; (2010) 177 LGERA 296 at [29]). It is only after the identification of such a question in the decision of a commissioner that one turns to a consideration of error ( Brinara at [27]). It is not necessary that the "question of law" be explicitly stated and decided. It is sufficient if a decision is such that a resolution of a "question of law" is manifested by it ( Scicluna v NSW Land and Housing Corporation [2008] NSWCA 277; (2008) 72 NSWLR 674 at [3] - [4]; Director-General, Dept of Ageing, Disability and Home Care v Lambert [2009] NSWCA 102; (2009) 74 NSWLR 523 at [28]). It is not necessary that the answer to a question of law constitutes the ultimate decision, so long as it is a question "material" to the decision ( Brinara at [30]). Erroneous findings of fact or inappropriate or illogical inferences do not constitute an error of law. Further, a finding "contrary to the overwhelming weight of the evidence" will be insufficient to vitiate the decision per Azzopardi at 155 - 156. Findings of fact even if perverse, illogical or irrational are not open to correction in a s 56A appeal per Azzopardi at [50]. 21SZMDS concerned available grounds for judicial review relying on s 75(v) of the Constitution. The High Court has arguably expanded the available grounds to include a challenge to the making of "irrational" or "illogical" jurisdictional fact findings where a decision-maker is required to be satisfied that certain facts are met before that jurisdiction is enlivened. It has no application to whether a question of law or fact is raised in these proceedings. The findings in Cavasinni Constructions Pty Ltd v Fairfield City Council [2010] NSWLEC 65; (2010) 173 LGERA 456 at [47] - [48] concerning limits to s 56A appeals under the Court Act apply.

Consideration 22The issue raised for preliminary determination is whether the Commissioner's finding of satisfaction required by s 96(2)(a), which founds jurisdiction under s 96 to determine a modification application, is a question of law and able to be raised in this s 56A appeal. Further matters specified in s 96(2)(b), (c) and (d) must also be complied with before an application for modification can be approved but no issue is raised in relation to these. That issue arises before and separately from the question of whether the ground of review identified in appeal ground 1 based on the reasoning in SZMDS can arise. 23It is relevant to note at the outset that the Council submitted and Marana accepted that the finding of satisfaction in s 96(2)(a), that the development as sought to be modified is substantially the same as the development originally granted consent, is a jurisdictional fact which must be satisfied before an application for modification under s 96 can be considered. That the finding of necessary satisfaction is a condition precedent to the exercise of the statutory power under s 96(2) is supported by the numerous authorities identified in the Council's written submissions (par 5) which identify the nature of a jurisdictional fact, R v Federal Court of Australia; Ex parte Pilkington ACI (Operations) Pty Ltd [1978] HCA 60; (1978) 142 CLR 113, Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135 , Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611 and SGLB , and I will proceed on this basis. 24The parties disagree on whether this is a question of law. No authority has been presented by either party which deals squarely with the issue of whether an appeal on a question of law can arise as framed in the preliminary question. The only authority on this point the Council relied on was Kirk which does not consider this issue directly. The dearth of authority on this issue suggests it has not received much judicial consideration in this particular context of a limited statutory appeal. The answer is not self-evident. 25No criticism is made by the Council of the test in Moto (No 2) identified by the Commissioner as relevant to the achievement of satisfaction under s 96(2)(a) or the Commissioner's interpretation of any word in s 96(2). Grounds based on alleged errors in relation to these matters would arguably raise questions of law. The task the Commissioner undertook was correctly identified by the Council as the finding of facts in relation to forming an opinion about satisfaction under s 96(2). For the Commissioner to determine that she had jurisdiction was an inquiry about whether facts allowing consideration of the test in s 96(2)(a) existed and based on which the Commissioner could determine if she was satisfied. Marana submitted that as these are findings of fact, not findings giving rise to a question of law, they are not able to be raised in a s 56A appeal.

Cases considering jurisdictional fact 26There are many authorities in the High Court and the Court of Appeal which have considered the nature and significance of jurisdictional facts. The Council's submissions identified a number of Court of Appeal cases which have considered whether a jurisdictional fact existed and been satisfied in proceedings in this Court. Many were judicial review cases in which an appeal was enabled by s 58 of the Court Act. Appeals under s 58 are not limited to a question of law. The role of a court in judicial review proceedings is wider than in an appeal limited to a question of law in relation to the grounds able to be considered and the relief granted. In Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1 , Brennan J stated that the duty of the court in judicial review proceedings is to declare and enforce "the law which determines the limits and governs the exercise of the repository's power". 27The Council also relied on judicial review cases considering Commonwealth tribunal decisions in relation to jurisdictional fact-finding in which illogicality or irrationality in fact-finding was raised. Eshetu concerned the decision of the Refugee Review Tribunal to refuse to grant a visa under the Migration Act 1958 (Cth) which required a decision-maker to be satisfied of a certain matter before jurisdiction was enliv ened. The appellant argued that the decision of the Refugee Review Tribunal was "so unreasonable that no reasonable Tribunal, acting within jurisdiction and according to law, would have come to such a decision". Gleeson CJ and McHugh J (at [45]), and Gummow J at ([127]) recognised that the case was incorrectly framed as one of Wednesbury unreasonableness. In considering a more accurate expression for the application at [127] - [146], Gummow J stated at [127] that it was a case concerning jurisdictional facts and observed that "a court or tribunal cannot give itself jurisdiction by erroneously deciding that the fact or event exists ". His Honour stated at [131] that determination of jurisdictional facts based on satisfaction of a decision-maker are reviewable under s 75(v) of the Constitution, which enables judicial review by the High Court in its original jurisdiction, citing Quin at 35 - 36. At [145] his Honour continued that in such cases review should be permitted where "the satisfaction of the decision-maker was based on findings or inferences of fact which were not supported by some probative material or logical grounds." He found at [147] that the Refugee Review Tribunal's fact-finding and reasoning did not err in this regard. 28Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002; Appellant S106/2002 v Minister for Immigration and Multicultural Affairs [ 2003] HCA 30; (2003) 198 ALR 59 concerned, inter alia, an application for judicial review in the original jurisdiction conferred by s 75(v) of the Constitution on the basis that the Refugee Review Tribunal's decision displayed jurisdictional error. Relying on Gummow J's statement at [145] in Eshetu , the appellant argued that "its determination that the condition upon which depended the power (or duty) to grant him a protection visa was not met was irrational, illogical and not based upon findings or inferences of fact supported by logical grounds." SZMDS was also a judicial review case of a determination by the Refugee Review Tribunal brought under s 75(v) of the Constitution. It was considering in that context whether a decision-maker under the Migration Act was properly satisfied of certain facts before jurisdiction was enlivened. 29Generally, in proceedings reviewing administrative action the reviewing court can conclude that the jurisdictional fact did not exist based on error in findings of fact and of law. For example in R v Blakeley ; Ex parte Association of Architects, Engineers, Surveyors and Draughtsmen of Australia [1950] HCA 40; (1950) 82 CLR 54 , which concerned an application for mandamus under s 75(v) of the Constitution against a commissioner's decision, Fullagar J stated at 90 - 91: Generally speaking, when a tribunal, other than a superior Court in the technical sense, is called upon to exercise jurisdiction, it must, of necessity, begin by considering for itself the preliminary question whether it possesses the jurisdiction invoked. That question may depend on questions of law or questions of fact or on questions both of law and of fact. As Griffith CJ said in Federated Engine-Drivers' and Firemen's Association of Australasia v Broken Hill Pty Co Ltd : "the first duty of every judicial officer is to satisfy himself that he has jurisdiction, if only to avoid putting the parties to unnecessary risk and expense." In the same case Barton J said: "Where the jurisdiction is disputed, adequate and careful inquiry is still the duty of the court of first instance". But the important point is that the decision or finding with regard to the existence of jurisdiction, whether it be affirmative or negative, stands in a radically different position from a decision or finding given or made within jurisdiction on the merits of the case. The latter is conclusive and binding subject only to any appeal that may be given: if no appeal is given, it is absolutely conclusive and binding. The former is not conclusive or binding at all. It is open, if it be affirmative and wrong, to prohibition. It is open, if it be negative and wrong, to mandamus. (footnotes omitted) This extract of Blakeley was cited by Spigelman CJ in the Court of Appeal in Timbarra Protection Coalition Inc v Ross Mining NL [1999] NSWCA 8 ; (1999) 46 NSWLR 55 at [86]. 30In Project Blue Sky Inc v Australian Broadcasting Authority [ 1998] HCA 28; (1998) 194 CLR 355, a review of administrative action under the Broadcasting Services Act 1992 (Cth) , at [ 91] - [92] McHugh, Gummow, Kirby and Hayne JJ stated: An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition... Traditionally, the courts have distinguished between acts done in breach of an essential preliminary to the exercise of a statutory power or authority and acts done in breach of a procedural condition for the exercise of a statutory power or authority. Cases falling within the first category are regarded as going to the jurisdiction of the person or body exercising the power or authority. Compliance with the condition is regarded as mandatory, and failure to comply with the condition will result in the invalidity of an act done in breach of the condition. (footnotes omitted). 31In Enfield , which were judicial review proceedings, in determining whether a fact was jurisdictional t he High Court, Gleeson CJ, Gummow, Kirby and Hayne JJ, at [28] stated that the "term 'jurisdictional fact' (which may be a complex of elements) is often used to identify that criterion, satisfaction of which enlivens the power of the decision-maker to exercise a discretion". At [44] the joint judgment considered the role of the court in judicial review proceedings and cited Brennan J in Quin at 36 and Mason J in Minister for Aboriginal Affairs v Peko- Wallsend Ltd [ 1966] HCA 40; (1986) 162 CLR 24 at 40 . The Court then noted that while there is no error of law in making a wrong finding of fact, per Brennan J in Waterford v Commonwealth [1987] HCA 25; (1987) 163 CLR 54 at 77, such limitations did not apply to the determination by the court of the jurisdictional facts defining the activities of the decision-maker. 32Spigelman CJ in the Court of Appeal in Woolworths Ltd v Pallas Newco Pty Ltd [2004] NSWCA 422; (2004) 61 NSWLR 707 at [9] stated, "There is no bright line between jurisdictional error and error in the exercise of a jurisdiction", relying by way of example on Re Refugee Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 at [163] per Hayne J. His Honour continued, "Nevertheless, the Court ... must determine whether the repository of a statutory power has acted, or proposes to act, in a manner which transgresses the limits upon the exercise of the power that Parliament has conferred." 33In Kirk , the High Court held the Industrial Court of NSW had no power to make certain orders and it misapprehended a limit on its powers; see [24], [26]. Kirk concerned, inter alia, the Court of Appeal's refusal to quash the Industrial Court of NSW's orders convicting the appellants of offences against the Occupational Health and Safety Act 1983. A privative provision in s 179 of the Industrial Relations Act 1996 provided that a decision of the Industrial Court is final and could not be appealed against. The High Court found (at [55], [74] - [77], and [108]) that the Industrial Court committed two jurisdictional errors in misapprehending the limits on its power, warranting orders in the nature of certiorari. 34Of greater moment for current purposes is the High Court's analysis of jurisdictional error in Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 at 177 - 178 (summarised with approval in Kirk at [72]) as being that an inferior court can act beyond jurisdiction by entertaining a matter outside its limits and powers, for example, (i) in the absence of a jurisdictional fact, (ii) disregarding a matter that the relevant statute requires be taken into account as a condition of jurisdiction and (iii) misconstruction of the relevant statute. Kirk was submitted by the Council to render any limit on an appeal from a commissioner in relation to jurisdictional fact unconstitutional. Kirk does not address directly the preliminary question raised concerning the scope of an appeal under s 56A. 35The Council's submissions that a court or tribunal cannot give itself jurisdiction by erroneously deciding that the fact or event exists per Eshetu at [127] per Gummow J and Ex parte Pilkington ACI (Operations) at 125 per Mason J (with whom Stephens J at 119 and Jacobs J at 130 agreed and with whom Gibbs ACJ was in general agreement at 118) are adopted. I also refer to Project Blue Sky at [91] - [92] quoted at par 30 above. 36Judicial review of the decisions of commissioners are not provided for under s 56A so that these decisions while helpful in identifying the significance of jurisdictional fact finding to ground jurisdiction of a court or tribunal do not alone answer the question raised. Section 56A identifies the sole basis on which an appeal against a commissioner's decision can be brought.

Scope of appeals under Court Act s 56A, s 57 and other limited statutory appeals 37The Council's counsel relied on the similarity between s 56A and s 57 in support of its case submitting that it could not be correct that a similar ground of appeal was not permissible under s 57. Under s 57 of the Court Act appeals on a question of law to the Supreme Court (Court of Appeal) lie from decisions of judges inter alia of this Court in Class 1, 2, 3 and 8 proceedings. Under s 56A(2) and s 57(2) the appeal court can remit the matter for determination in accordance with the appeal court decision or make any order which seems fit. There is considerable similarity between the two sections (but for s 57 referring to appeals from interlocutory orders). 38Marana relied on a s 57 appeal in Walker where Basten JA (Beazley and Young JJA concurring) at [20] stated: As has been explained in a number of recent decisions, jurisdiction of the kind presently in question falls into one of three categories, namely an appeal where: (a) identification of a question of law is a precondition to engaging the Court's jurisdiction, but is not a limitation on that jurisdiction, once engaged; (b) the question of law is not a mere precondition to ground an appeal but is the sole subject matter of the appeal, and (c) it is the decision of the Tribunal on a question of law which is the subject matter of the appeal. According to Marana none of these tasks applied to the Commissioner's consideration but that does not assist in determining whether the finding of a jurisdictional fact can be characterised as a question of law. The Commissioner's finding of satisfaction is a precondition to engaging the Court's jurisdiction and is clearly a decision of the Commissioner which is the subject of this appeal. 39In another s 57(1) appeal Roads & Traffic Authority of New South Wales v Peak [2007] NSWCA 66 at [138] - [151] Basten JA considered in his dissenting judgment the scope of appeals under s 57 of the Court Act in the context of an appeal in Class 3 proceedings. The majority did not address this issue. At [151] Basten JA concluded that "the jurisdictional limits of a statutory court involve questions of law and fact. Whether or not a court has exceeded its jurisdiction and powers is at least a mixed question of law and fact and involves the identification of the legal limits of its powers..." While in obiter, that conclusion suggests that findings of jurisdictional fact give rise to a question of mixed fact and law. 40In B & L Linings Pty Ltd v Chief Commissioner of State Revenue [2008] NSWCA 187; (2008) 74 NSWLR 481, an appeal from the Administrative Decisions Tribunal provided for by s 119 of the Administrative Decisions Tribunal Act 1997 on a question of law, there is extensive consideration of the meaning of this phrase by Allsop P in considering the nature of that appeal to the Court of Appeal at [13] - [79]. His Honour reviews statutory appeal provisions in a number of Australian jurisdictions and within NSW including this Court. At issue was whether in the appeal pursuant to s 119 the Court of Appeal could exercise the powers of the Administrative Decisions Tribunal including making findings of fact (engaging in a merits review) when read with s 75A of the Supreme Court Act 1970. He considered the power on appeal was limited and, not surprisingly, could not include a merits review. In the course of consideration he referred to Maurici v Chief Commissioner of State Revenue [2001] NSWCA 78; 51 NSWLR 673 where the Court of Appeal held that on appeal it had no authority to make findings of fact or to exercise discretion in considering s 57(2). In Thaina Town (On Goulburn) Pty Ltd v City of Sydney Council [2007] NSWCA 300; (2007) 71 NSWLR 230 Spigelman CJ considered the Court of Appeal could re-exercise the discretion on the existing facts, rather than remit the matter of costs there in dispute back to this Court. At [110] he considered Maurici was wrongly decided on this aspect because the wording in s 57(2) did not prevent the re-exercise of discretion on undisputed facts. In B & L Linings at [77] - [79] Allsop P concluded that an appeal on a question of law does not extend to finding facts on the merits of the case. 41Basten JA also considered the approach to be taken to an appeal limited to a question of law identifying at [131] that such an appeal "is not to be equated with the exercise of the Court's supervisory jurisdiction to grant prerogative relief, although the differences may be of limited significance where the supervisory jurisdiction is exercised in relation to an inferior court ... Putting aside differences between jurisdictional error and errors of law within jurisdiction, the purpose of each procedure is similar in that it is designed to ensure that the tribunal in question operates within its legal limits and applies correct law." 42B & L Linings was not considering whether an appeal on a question of law lay in relation to an erroneous finding of jurisdictional fact so that the question arises of whether the thorough analysis therein of the limitations on limited statutory appeal rights supports the conclusion that a jurisdictional fact cannot be a question of law. The analysis of Basten JA considering the differences and also similarities between judicial review and limited appeal rights identifies at [132] the different relief that a court might grant depending on the nature of the proceedings. In judicial review cases the courts will decline to take upon themselves the decision-making functions of the tribunal so that if jurisdictional error is identified in a tribunal decision the matter will be referred back to it for redetermination in accordance with the law. In appeals limited to questions of law, final orders might be made the Court in limited circumstances, at [133]. On the assumption that I hold that the preliminary question gives rise to a question of law an additional matter not addressed in argument is the nature of the relief the Court would grant. 43In HIA Insurance Services Pty Ltd v Kostas [ 2009] NSWCA 292 the Court of Appeal considered the scope of an appeal from the District Court under the Consumer, Trader and Tenancy Tribunal Act 2001 (CTTT Act) . Such an appeal is enabled under that Act on "a question with respect to a matter of law". A matter of law is defined expressly in the statute to include a matter relating to jurisdiction of the tribunal. Spigelman CJ noted that this definition extended the scope of the appeal to include fact-finding exercises in relation to jurisdictional facts. At issue in the case was the nature of the decision of the tribunal appealed against and whether this included implicit steps in the reasoning process. The Court of Appeal held that it did not. That decision was overturned in the High Court in Kostas v HIA Insurance Services Pty Limited [2010] HCA 32; (2010) 241 CLR 390. 44The issue in Kostas was not the same as here. At [25] French CJ in a separate judgment to the plurality (which did not refer to the topic) held that the words "question with respect to a matter of law" in s 67 of the CTTT Act were wide enough to encompass a question of mixed law and fact and that questions of fact and law are often closely intertwined. The plurality at [91] held that what amounts to material that could support a factual finding is ultimately a question of law. 45More recently in Edyp v Brazbuild Pty Ltd [2011] NSWCA 218 another appeal under s 67(1) of the CTTT Act the issues arose of whether there can be an implied decision on a matter of law in the context of resolving if the Tribunal decided a question with respect to a matter of law. At [159] Basten JA considered in obiter the different statutory approaches to statutory appeals limited to questions of law 46The limits of s 56A appeals were shortly considered in Cavasinni where a claim based on manifest unreasonableness was noted to be novel (and I infer unavailable) in a s 56A appeal. Craig J identified that he was bound by Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 146G and 156A at [48]. Azzopardi is authority that findings of fact contrary to the overwhelming weight of the evidence will be insufficient to vitiate an administrative decision. Cavasinni supports a finding that judicial review grounds such as Wednesbury unreasonableness cannot be raised in a s 56A appeal as that is not a ground of review based on a question of law. That is not the nature of the ground of appeal I am considering. The finding of satisfaction giving rise to jurisdiction suggests fact-finding of a different order to that considered in Azzopardi which did not consider findings on jurisdictional fact. 47The Council did not rely on Hope v Bathurst City Council [1980] HCA 16; (1980) 144 CLR 1 and Azzopardi but they are useful to also consider. As those cases identify, the construction of a statute can give rise to a question of law. The failure to find facts can give rise to a question of law being the no evidence ground (confirmed recently by the High Court in Kostas at [91] per Heydon, Hayne, Crennan and Kiefel JJ). Whether facts fully found fall within the provisions of a statutory enactment properly construed is a question of law: Hope per Mason J at 7. This was applied in Azzopardi by Glass JA at 156C who stated that an ultimate finding of fact even in the absence of misdirection may reveal an error of law if the primary facts found are necessarily within or outside a statutory description and a contrary decision has been made citing Hope at 10, Australian Gas Light Co v Valuer-General at 138. 48Azzopardi was an appeal from the Workers Compensation Commission which appeals were limited to a grievance "in point of law" (or, less relevantly, the admission or rejection of evidence). At 156 - 157 Glass JA stated: Errors may be committed by a Workers' Compensation judge at any one of the three points viz determining the facts by way of primary findings and inferences, directing himself as to the law and applying the law to the facts found. At the first stage the determination of facts by a reasoning process marred though it be by patent error, illogicality or perversity will, as has been said, never be vulnerable to attack as an error of law by an applicant for compensation. At the second stage any error made will by definition be an error of law. At the third stage when the law correctly stated is applied to the facts found in order to produce a conclusion error may intrude again. An erroneous conclusion that facts properly determined fail to satisfy a statutory test, for example, injury arising out of the cause [sic] of employment, substantial interruption to journey, or failure to provide suitable employment will ordinarily be an erroneous conclusion of fact. It is only in marginal cases that the statutory test is satisfied or not satisfied as a matter of law, because no other application is reasonably open: Hope v Bathurst City Council (at 10); Australian Gas Light Co v Valuer-General (at 138; 55). Accordingly this Court will not entertain unexplained perversity of result as a ground for intervention although it will correct perverse or unreasonable applications of law to the facts found. 49While Hope and Azzopardi were not considering jurisdictional fact in terms it is useful to consider s 96(2) in light of the views expressed in those cases that a finding of fact may reveal error of law where these are within or outside a statutory description and a contrary decision has been made. By analogy a finding of whether a jurisdictional fact has been satisfied under a statute, which finding is necessary to establish jurisdiction, is more likely to be characterised as a question of law or at least mixed fact and law. This finding essentially distinguishes the fact finding in relation to satisfaction being a jurisdictional fact in s 96(2) from usual fact finding which Azzopardi addressed in relation to erroneous findings of fact which are illogical or wrong not being open to appeal on a question of law. 50For completeness I note that in Brinara Craig J considered Walker and B & L Linings in determining whether a question of law was raised in a s 56A appeal in a different context relating to the application of existing use right provisions to what is before me. His Honour considered at [32] that the findings of the Commissioners that they expressed satisfaction that on the statutory basis they could not grant development consent did give rise to a question of law or mixed question of fact and law. Craig J considered this formulation was consistent with the judgment of Mason J in Hope at 10 that the question whether facts fully found fall within the provisions of a statutory enactment is a question of law. 51The Council relies on my decision in Codling v Manly Council (Class 1 appeal) at [28] where I stated that the question of proper characterisation of development is a jurisdictional fact which constitutes an error of law referring to Warehouse Group (Australia) Pty Ltd v Woolworths Pty Ltd [2005] NSWCA 269, (2005) 141 LGERA 376. Warehouse Group was a judicial review case and further analysis suggests such a finding was not explicitly made in that case by the Court of Appeal. There was no dispute in Codling that the grounds of the appeal were questions of law so that my statement is obiter but that statement is of limited support only.

Conclusion on preliminary question 52I have not found this an easy matter to resolve. In light of the essentiality of findings of jurisdictional fact to ground the jurisdiction of a court or tribunal as discussed in numerous authorities outlined above at par 27 - 35; the analogy to be drawn with Hope and Azzopardi concerning the application of facts in a statutory context being a question of law; the approach in Brinara which, while not addressing a finding of jurisdictional fact, is analogous; the potential scope of an appeal under s 57 of the Court Act (and therefore s 56A appeals) considered in Peak by Basten JA albeit in obiter; the consideration of Basten JA in B & L Linings once again in obiter, of the limited differences between judicial review proceedings where prerogative writs may be issued and relief granted in statutory appeals; I consider that the preliminary question should be answered that whether the Commissioner had jurisdiction turning upon whether the test of satisfaction in s 96(2)(a) had been met gives rise to a question of mixed fact and law and can ground an appeal under s 56A of the Court Act. 53Given my conclusion above this matter should proceed to further hearing as it is now necessary for the Court to review the evidence relevant to satisfaction that was before the Commissioner in order to determine appeal ground 1. As the Council submitted, having all of the relevant evidence before the Commissioner before a judge of this Court on appeal is not unheard of. For example, an appeal on the ground of no probative evidence requires that all the available evidence be before the Court in a s 56A appeal.

Additional matters 54A further consideration in this analysis is that the Council's submissions include the statement that the jurisdictional fact in s 96(2) is of a special kind according to Spigelman CJ in Pallas Newco at [25], a matter not disputed by Marana. A special kind of jurisdictional fact means that in judicial review proceedings a Court can review whether the facts needed to establish satisfaction of a jurisdictional fact exist but will not itself determine whether there is such satisfaction. As these are merit review proceedings where the Court exercises all the powers and functions of the Council under s 39 of the Court Act it can in theory determine the existence of that jurisdictional fact in these Class 1 proceedings. That leads to another issue which will require further consideration by the parties in this appeal and that is the appropriate relief the court should grant assuming that I determine the appeal ground in the Applicant's favour, a matter referred to earlier at [41] when B & L Linings was discussed. The orders the Court can make under s 56A(2) include the matter being remitted to a commissioner or the Court making any order which seems fit. 55Separate to my conclusion on the preliminary question, ground 1 is couched in terms of whether a reasonable person would form the opinion that the requirements of s 96(2)(a) were satisfied. This was submitted by the Council to be in conformity with the approach in Connell and SZMDS . I will not rule finally on the nature of the satisfaction able to be raised in appeal ground 1 as I do not consider the parties' submissions adequately addressed this issue. The Council relies on SZMDS as identifying a potentially new ground of review based on a challenge to the illogicality of making findings of jurisdictional fact (but also relies on the much earlier case of Connell in its submissions). Marana appeared to accept that such a ground may now exist. The Council also submitted that it is not seeking a merits review of the Commissioner's conclusion of satisfaction and that it is not asking the Court to substitute its own opinion on the question of satisfaction. These submissions are not self-evidently correct given the terms of the appeal ground. 56I observe at this stage that in appeal ground 1 it is unclear that the question of satisfaction identified by the Council in appeal ground 1 reflects the finding of jurisdictional fact required. All cases where the satisfaction of a jurisdictional fact was considered by a court referred to in the parties' submissions were not couched in terms of whether satisfaction about that fact was to be considered from the viewpoint of a reasonable person. Further submissions on this issue will be necessary at the further hearing.

Ground 2(a) - Failure to give reasons not established 57The Council submitted the Commissioner did not give reasons or adequate reasons for the conclusion that "the test in section 96(2)(a) is passed" in [34]. At [30] she rejected the Council's submissions. The Commissioner failed to provide adequate reasons as identified in Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430 at [443] - [444] per Meagher JA and in Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 281. Insufficient reasons may not allow an appeal court to determine whether the trial judge's verdict was or was not based on an appellable error. The Commissioner does not identify the reasons for her conclusions as there is no explanation for why she found that the changes in modification would not render the development not substantially the same development. She does not explain how she applies the principles in Moto (No 2) . 58A consequence of the failure to give reasons is that no legal error is disclosed. That may be in the undisclosed reasons. Dixon J in Avon Downs Pty Ltd v Federal Commissioner of Taxation [1949] HCA 26; (1949) 78 CLR 353 at 360 held that a decision is reviewable even if the reasons are not known where it can be seen the decision-maker must have failed. The same inference of an error as found in Avon Downs must arise here. 59Marana submitted that in Brimbella Pty Ltd v Mosman Municipal Council (1985) 79 LGERA 367 the Court of Appeal identified that in relation to a question of law the court should be mindful that the decision appealed against was not written by a lawyer. In order for adequacy of reasons to amount to an error of law Segal v Waverley Council [2005] NSWCA 310; (2005) 64 NSWLR 177 at [46] identifies that if there is a failure to record facts the failure must make it impossible to ascertain the tribunal's reasoning process. There is no such failure in the Commissioner's reasoning.

Consideration 60The Commissioner's judgment considers the background facts, identifies the merit issues and the appropriate test to be applied to s 96(2)(a) at [24] - [25]. The differences between the original and proposed modifications are set out at [26] - [28], and the parties' submissions and planning evidence is identified at [29] - [33]. At [30] the Commissioner did not accept the Council's submissions that the variation to the floor space ratio allowed by the Council for the original consent was due to the high quality of the units and held that approval by the Council was granted because the application satisfied the objectives of the controls as outlined in that paragraph. At [34] the Commissioner stated: Having considered the quantitative and qualitative changes, I do not consider the changes to the building design, apartment mix, number of dwellings and carparking spaces are such that the final built form, in terms of its scale, bulk, appearance or use would not be substantially the same as that approved under the consent, nor do I have sufficient evidence that the size/quality of the units as put by the council, were an essential element of the approved development. Accordingly, I find that the test in s 96(2)(a) is passed and it is now necessary to undertake a merit assessment of the application. 61As identified in Marana's submissions, Brimbella at 368 identifies that decisions of tribunal members analogous to a commissioner's role should not be examined too narrowly. The duty of a commissioner to give adequate reasons is identified in Segal at [65] - [77], inter alia. Recently Svedas v Council of the City of Sydney [2011] NSWLEC 215 at [82] - [85] considered Soulemezis and Wainohu v State of New South Wales [2011] HCA 24; (2011) 243 CLR 181 which case identifies that the content and detail of reasons will vary according to the jurisdiction and nature of the matter, here a lay commissioner providing reasons in a merits review. 62Paragraph 34 identifies the Commissioner's reasoning including reference to her finding at [30] of the reason for the Council's original approval when this was done. This paragraph should be read as part of the judgment as a whole, not in isolation. The Council relied on Beale to support its contention that the Commissioner failed to articulate proper reasons. In Beale Meagher JA stated that a judge had to set out his findings on why he preferred one set of evidence over another. The Council submitted that the Commissioner failed to do this in her reasons. A fair reading of her decision does not suggest that there is a failure to give reasons or inadequacy of reasons for her conclusions on the expert evidence. This ground should be dismissed.

Council's submissions 63Grounds of appeal 2(b), (c) and 3 were presented together by the Council. The Council submitted that the combined effect of s 96(2) and cl 115(1A) of the EPA Regulation is that the modification application was required to be accompanied by a design verification statement from a qualified designer verifying in accordance with subclause (1A)(c) of the Regulation that the modifications do not diminish or detract from the design quality, or compromise the design intent, of the development for which the development consent was granted. 64If the modification does not come within cl 115(1A)(c) (does not diminish or detract from design quality) then it cannot be substantially the same development as required by s 96(2)(a). The Commissioner erred in finding that the development as modified was substantially the same development without taking into consideration the matters raised in cl 115(1A)(c) and in holding that there is no evidence that design quality is diminished at [51]. Further, cl 115(1A)(a) and subclause (b) refer to the design principles in Pt 2 of SEPP 65 which refer to amenity (room size, solar access, privacy, indoor and outdoor space, inter alia) and aesthetics (internal and external design). 65That the Commissioner has found that there is no evidence that the design quality is diminished establishes that she has failed to take into account the evidence that does establish that design quality is diminished. It also shows that she erroneously reversed the onus. It is for the developer seeking modification to establish that the requirements of cl 115(1A)(c) have been met. There is evidence establishing that the requirements of cl 115(1A)(c) were not met, identified in submissions as the evidence of Ms Bell and Mr Tayler.

Marana's submissions 66Marana submitted that a design verification statement was provided in relation to the s 96 application, as found by the Commissioner at [51]. Both parties presented expert evidence on this issue as reflected in the judgment. As reflected in her reasoning in [51] the Commissioner was satisfied that there was not a diminution in design quality.

Consideration 67The Commissioner in the judgment considered the merits by first considering the LEP requirement that residential development ensure the protection and improvement of residential areas. The conflicting expert opinions of Ms Bell and Mr Fletcher on that issue are identified at [36] - [40]. The DCP 35 and BDCDCP controls in relation to minimum size of dwellings, energy efficiency, streetscape, facades, apartment layout, size and width of balconies, solar access and overshadowing are identified. The conflicting expert evidence of the parties' planners and architects on whether the respective controls were met, and whether that matters, is discussed at [41] - [48]. Her conclusions at [51] include that she does not accept that the development as modified would diminish or detract from the design quality of the development contrary to cl 115(1A)(c) of the EPA Regulation. Firstly, a design verification statement in relation to this issue was included in the Statement of Environmental Effects. Secondly, the Commissioner did not accept there was evidence the design quality is diminished, only that the size, layout and orientation of the units had changed. 68The presence of the design verification statement before the Commissioner is an answer to ground 2(b) as cl 115(1A)(c) requires that the design verification statement include an opinion that the development as modified would not diminish or detract from the design quality of the development and such a statement was before the Commissioner. There is no basis relying on that clause for alleging an error by the Commissioner in her conclusion that the test in s 96(2)(a) is passed. This requirement is also an answer to ground 3 alleging no evidence within the meaning of cl 115(1A)(c) as the design verification statement was such evidence. 69My reading of the judgment is that the Commissioner considered the evidence on a number of matters relevant to design quality and simply did not in the exercise of her discretion accept the evidence of the Council's experts on the issue of design quality. That she chose words in the judgment "there is no evidence that the design quality is diminished" is not indicative of error in failing to consider relevant evidence. Grounds 2(c) (insufficient evidence of size/quality of units) is really a criticism of the Commissioner's findings on the merit issue before her. Ground 3 can also be considered in the same light given its wording which simply criticises the Commissioner's finding on design quality. Such grounds are not permissible in a s 56A appeal. 70Grounds of appeal 2(b), (c) and 3 should be dismissed.

Ground 6 dismissed 71The Council referred to ground 6 next. This is somewhat difficult to understand in its terms. Grounds 6(a) (b) (c) and (e) raise the issue of whether the Commissioner erred in not refusing the modification application under s 96(2) because she applied cl 30A(1)(b) (minimum apartment area) of SEPP 65. Within this context ground 6(b) raises specifically the construction of cl 30A(1)(b) of SEPP 65 and the RFDC and whether a recommended internal and external area is identified in the RFDC. Ground 6(d) appears to raise a separate allegation that the Commissioner erred in holding the areas proposed complied with SEPP 65. Ground 6(e) alleges a failure by the Commissioner to take into account DCP 35 cl 3.3.2 control C6 (dwelling sizes) because of an incorrect finding of inconsistency with SEPP 65. The Council's submissions did not address all of these grounds specifically. Ground 6 overlaps with ground 4(a). 72The Commissioner referred to DCP 35, the RFDC and SEPP 65 and the different experts' views on the impact of the minimum unit areas in DCP 35 not being met at [41] - [42]. At [53] she concluded: I note that the size of the units does not comply with the minimum areas specified in both DCP35 and BDCDCP but also note that the areas are compliant with those areas included in SEPP65. I accept Ms Bell's evidence that council has consistently applied the minimum floor areas to those developments approved in the vicinity of the site with the exception of perhaps one in Bunnerong Road where one unit was below size. As SEPP65 is a relevant consideration pursuant to s97C [sic] and, prevails in the event of any inconsistency between environmental planning instruments (EPI), (noting the development control plans are not EPIs and that this is a modification and not a development application), I find that the areas proposed are satisfactory.

(i) Failure to take DCP 35 into account in applying SEPP 65 cl 30A (ground 6(a)) 73It is common ground that the size of the proposed units do not comply with the minimum areas in DCP 35 cl 3.3.2 control C6. The Commissioner noted that the areas were compliant with those areas as specified in SEPP 65. At [53] she held that SEPP 65 is a relevant consideration under s 79C and prevails in the event of inconsistency with an environmental planning instrument. Clause 30A of SEPP 65 applies only to a development application. As this is a modification application it is not subject to cl 30A. Therefore she was required to take DCP 35 control in cl 3.3.2 into consideration yet she found the areas proposed were satisfactory. The Commissioner failed to take DCP 35 into consideration as required by s 79C(1)(a)(iii) for the reasons also given in relation to ground 4 (see par 82 - 85 below).

(ii) Misconstrued SEPP 65 cl 30A and RFDC (ground 6 (b)) 74Alternatively, the Commissioner erred in her construction of SEPP 65 cl 30A(1)(b) and Pt 3 of the RFDC in holding that the areas in the development as modified would comply with the "areas included in SEPP 65". Subclause 1(b) requires identification of the recommended internal and external area for the relevant apartment type. There are no such areas identified for the relevant apartment type in the RFDC. The table and the "Rules of Thumb" section on p 69 of the RFDC refer to "Building not meeting the minimum standards listed above" but does not refer to "recommended internal area". Clause 30A(1)(b) of the SEPP refers to Pt 3 of the RFDC but is unintelligible. The meaning is unascertainable. It prescribes no restriction on a consent authority refusing a development application on the grounds of apartment size. Ground 6(c) is established in (a) and (b) are accepted.

(iii) No inconsistency between DCP 35 cl 3.3.2 and SEPP 65 cl 30A (ground 6(e)) 75Given the aim of SEPP 65 and the RFDC the intent cannot be to deny authorities the discretion to impose anything other than the minimum standards. Clause 30A(1)(b) should be read with subclause (2) which permits a consent authority to refuse development consent on the basis of apartment area if the development does not demonstrate that adequate regard has been given to the design quality principles of Part 2 of the policy. Consequently the Commissioner erred in finding that DCP 35 cl 3.3.2 control C6 is inconsistent with cl 30A(1)(b). Clause 2(1) identifies the aim of SEPP 65 is to improve the design quality of residential flat development in NSW by not diminishing design quality. Clause 30A(1)(b) should not be interpreted to override provisions in a DCP which seek to achieve quality consistent with the aims of SEPP 65. The Commissioner erred in considering the DCP control was inconsistent with cl 30A.

Marana's submissions 76There is no failure to take DCP 35 into account and this ground overlaps with part of ground 4. In relation to ground 6(a), (b) and (e) the meaning and operation of SEPP 65 cl 30A is clear. It calls up recommended internal areas and external areas in the RFDC. In RFDC Pt 3, apartment layout is specified with a table (p 69) identifying "internal area" and "external area" figures for different apartment types. Properly understood this provision is called up by cl 30A. Section 96(3) calls up s 79C. SEPP 65 is therefore relevant together with the RFDC. As it is relevant SEPP 65 can prevail as the Commissioner correctly held.

Consideration 77It is useful to first consider ground 6(b) in relation to the construction of SEPP 65 cl 30A(1)(b) and Pt 3 of the RFDC. The Council submits that these are unintelligible. It is a principle of statutory construction that a meaning which in accordance with the legislative intention produces a reasonable result be adopted, rather than reading a provision as having no practical effect: Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation [1981] HCA 26; (1981) 147 CLR 297 at 320 - 321. Clause 30A(1)(b) of SEPP 65 requires reference to Pt 3 of the RFDC which in turn identifies what are the recommended minimum internal and external areas. The RFDC does not use the precise words of the SEPP, namely, "recommended internal and external area for the relevant apartment type", the nub of the criticism of the Council. When the table and "Rules of Thumb" section on p 69 of the RFDC are read this clearly recommends internal and external areas for different apartment types as referred to in cl 30A(1)(b). The two instruments are clear when read together and there is no unintelligible connection between them. Ground 6(b) is not established. 78Grounds 6(a) raises issues of statutory construction. How SEPP 65 applies in these circumstances must be considered. In reply the Council accepted that cl 30A of SEPP 65 was a matter to be taken into consideration by the Commissioner because of the combined effect of s 96(3) and s 79C(1)(a)(i). By virtue of s 96(3) SEPP 65 must be considered as a matter referred to in s 79C(1). The Commissioner stated in [53] that because SEPP 65 prevails in the event of any inconsistency with an environmental planning instrument that the apartment areas proposed were satisfactory. She acknowledges in brackets that DCPs are not environmental planning instruments (as defined in s 4 of the EPA Act) and that a modification application is not a development application. Clause 6 of SEPP 65 states that it prevails in the event of any inconsistency with an environmental planning instrument. Development control plans are not environmental planning instruments so that cl 6 does not strictly apply in the case of DCP 35. Clause 30A is headed "Standards that cannot be used as grounds to refuse development consent for residential flat buildings". As this modification application is not a development application this clause does not strictly apply. These circumstances are acknowledged by the Commissioner given her observations in brackets. The primary basis for her decision not to apply DCP 35 cl 3.3.2 control C6 is inconsistency with cl 30A(1)(b) of the SEPP. 79While the SEPP is not a mandatory control under s 79C(1), s 96(3) requires the Commissioner to take the SEPP into account. The SEPP is not an irrelevant matter to consider in this statutory context and has been applied by the Commissioner as she considers appropriate. No error of law arises in these circumstances. Ground 6(a) is not established. Given my finding above in relation to ground 6(b) (at par 77 above) that finding also applies to ground 6(c) which simply refers to ground 6(a) and 6(b). 80Ground 6(e) alleges that the Commissioner erred in holding that control C6 in DCP 35 and SEPP 65 were inconsistent. The Council submitted that there is no inconsistency between DCP 35 cl 3.3.2 control C6 and SEPP 65 as both can be complied with. Clause 30A(2) refers to the design quality principles in Pt 2 of SEPP 65. Clause 2(1) of SEPP 65 states that the aim of the policy is to improve design quality of residential flat development in NSW and this was submitted to confirm that there was no inconsistency. Clause 30A(1) states that a consent authority must not refuse consent to a development application for the carrying out of residential flat development on grounds including that the recommended internal area are equal to or greater than the areas set out in the RFDC. DCP 35 requires greater internal and external areas than those identified in Pt 3 of the RFDC referred to in cl 30A(1)(b). Given that s 96(3) results in SEPP 65 being an instrument that must be taken into account by the Commissioner her conclusion that SEPP 65 should prevail is not an error of law. 81Ground 6(a), (b), (c) and (e) should be dismissed. I cannot see how ground 6(d) arises at all in the Council's arguments and do not therefore need to consider it.

Council's submissions 82This ground alleges the Commissioner failed to take into account several provisions of the BDCDCP and DCP 35, being cl 3.3.2 control C6 dwelling sizes (now not able to be raised as a result of my finding in ground 6 above), control C7 unit mix, and cl 3.3.15 control C2 solar access 83The Council submitted that s 79C(1)(a)(iii) requires the consent authority to take into consideration any relevant DCP, here BDCDCP and DCP 35, per Zhang v Canterbury City Council [2001] NSWCA 167; (2001) 51 NSWLR 589. The Commissioner did not find that there were particular features of the development or of the locality which would warrant a departure from these controls. She applied her own view of the appropriate controls in substitution for the DCP control. Consistent with the Court of Appeal in Botany Bay City Council v Premier Customs Services Pty Ltd [ 2009] NSWCA 226; ( 2009) 172 LGERA 338 the DCP was not taken into account, giving rise to an error of law by the Commissioner. 84Clause 3.3.2 control C7 identifies the required unit mix. At [55] the Commissioner referred to Zhang and held she was satisfied that the unit mix satisfies the objectives of cl 3.3.2 and considered that non-compliance with this clause does not warrant refusal of the application. The Commissioner clearly disagreed with this policy and substituted her own view as to the acceptable unit mix for that of the DCP. Nothing in her reasoning suggests that this development or locality warrants a departure from the policy contained in C7. 85Clause 3.3.15 control C2 of the DCP concerns solar access and overshadowing. There was a dispute between the experts on the adequacy of the amount of direct sunlight that the units would receive. Mr Buzacott for Marana said that 70 per cent of the units do effectively achieve three hours sunlight. At [54] the Commissioner concluded that over 70 per cent of units achieve daylight access required by SEPP 65 and adequate allowance for solar access is made to satisfy the objectives of DCP 35.

Marana's submissions 86Marana submitted that Premier Customs does not apply in this case. In that case the Court of Appeal at [26] considered that the Commissioner had set aside the DCP for reasons of a general policy approach. The Council's argument is that if the Commissioner permitted departure from the DCP controls then she had substituted her own view in its place and this was an error. The judgment shows that she identified and considered the controls and the evidence in relation to each control. In order to arrive at a position of satisfaction that departure was warranted the Commissioner considered the DCP as a fundamental focus, as required by Zhang . In relation to unit mix the judgment considered this issue at [19], [43], and [55] and solar access at [43], [44], [46] and [54]. The Design Review Panel's decision on these issues was also before the Commissioner and she referred to these issues in recommending approval.

Consideration 87The Council alleges that the Commissioner has failed to properly consider certain controls in DCP 35. Because of my finding on ground 6, cl 3.3.2 control C6 in relation to dwelling size cannot arise, leaving cl 3.3.2 control C7 (unit mix) and cl 3.3.15 control C2 (solar access). 88In relation to unit mix the Commissioner concluded at [55] that the DCP goal of 25 per cent is not met as 31 per cent are studio or one bedroom units. She considered that as the objectives of cl 3.3.2 are satisfied refusal was not warranted. The Commissioner referred to Zhang as requiring that the DCP must be a focal point of her consideration. 89The Commissioner considered solar access at [43] and [46] and gave her conclusion at [54] that while the DCP control was not met the SEPP 65 objective of 70 per cent of units achieving daylight access was adequate. She considered that adequate allowance had been made for "solar access to satisfy the objectives of DCP 35". 90The Commissioner was clearly aware of the requirements in Zhang as she referred to the decision and determined not to require strict compliance with the controls in the DCP identified in this ground in the exercise of her discretion. She has discretion to do so provided the DCP remains a focal point of her consideration. The Council relied on Premier Customs where the commissioner referred to the provisions of the DCP and was "entitled in the particular circumstances of the subject site to depart from them in his determination of the [development application]": at [5]. Macfarlan JA (Ipp JA and Hoeben J agreeing) found (at [5], [27] - [33]) that the commissioner considered the DCP standard excessive and applied his own standard of what was reasonable. In doing so, the commissioner failed to "take into consideration" the DCP as required by s 79C as he did not treat the DCP as a fundamental element or focal point in his determination as required by Zhang . As submitted by Marana, a fair reading of the Commissioner's decision demonstrates that the relevant DCP controls were the focal point of her consideration. Her reasoning is not analogous to that in Premier Customs . The Council has not established there was an error in the Commissioner's reasoning in ground 4. 91There was criticism of the Commissioner's approach in not requiring compliance with the DCP when the evidence of the Council officer was that this had been applied consistently in relation to minimum apartment size, which evidence is important in considering whether a DCP should be departed from. I have found that the SEPP 65 control on apartment sizes applied (at par 79 above) however so that this consideration falls away. This ground should be dismissed.

Ground 5 - Failure to give reasons dismissed 92The ground states that the Commissioner failed to give sufficient reasons why the modification should be approved despite the breach of the controls identified in ground 4. It was faintly pressed by the Council. 93For the reasons already given no error in ground 4 was established by the Council. The Commissioner provided reasons for her conclusions in ground 4. There is no failure to provide sufficient reasons, relying on Segal . This ground should be dismissed.

Ground 7 dismissed 94This ground alleges error in the Commissioner's statement at [51] that "the evidence however did not extend to suggest that the standard of the development as proposed was such that it was so poor that it warrants refusal" because the Commissioner therefore failed to determine the application on its merits. The Council submitted that the Commissioner approached the determination of the application on the basis it should be approved unless the Council established that it warranted refusal. This did not reflect the required exhaustive approach under s 79C whereby the Commissioner must weigh the factors in favour of approval and those against. Rather the judgment focusses on the adequacy of particular aspects. Specific examples of language said to reflect this approach are identified in [53] - [55] and [57]. 95If the Commissioner had adopted a predetermined approach that the application should be approved unless the Council established that it should not, then the Commissioner did not approach the hearing with an open mind. 96Marana submitted that this ground was a pernickety and impermissible analysis of the Commissioner's judgment. It misconstrued the judgment to suggest she approached the matter with preconceived views. The judgment addresses the contentions, evidence and submissions of the parties. Paragraph 51 was criticised but this should be read as a whole and clearly responds to submissions made by the Council. The judgment addresses the Council's case assessed against the evidence.

Consideration 97This ground is curiously worded and does not appear to articulate a question of law. In any event, a fair reading of the judgment as a whole and [51] in particular is required. Marana's submissions are accepted. The sentence containing the statement criticised by the Council continues "just that the original proposal was considered to be more desirable and of a higher quality". The judgment identifies the parties' contentious evidence and submissions and provides reasons for the conclusions reached. There can be no suggestion of the Commissioner bringing preconceived notions to bear based on the particular phrases referred to by the Council. This ground should be dismissed.

Conclusion 98Ground 1 remains to be determined and the matter will need to be re-listed to that end. The other grounds of appeal failed and should be dismissed in due course. 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: 15 February 2012