Canterbury-Bankstown Council v Realize Architecture Pty Ltd

Land and Environment Court (NSW)|2024-03-07|Before: Preston CJ

Nature of appeal and outcome

Canterbury-Bankstown Council (the Council) has appealed against the decision of Commissioner Espinosa to uphold an appeal by Realize Architecture Pty Ltd (Realize) and modify a development consent for a high-density residential development at 1-13 Close Street and 242-258 Canterbury Road, Canterbury. The Council's appeal, under s 56A(1) of the Land and Environment Court Act 1979 (NSW), is on a question of law.

Setting the grounds of appeal in the context of an appeal on error of law

In deciding whether or not the development as modified is substantially the same development as the development for which consent was originally granted, the Commissioner needed to undertake three tasks: 1. Finding the primary facts: This involves drawing inferences of fact from the evidence of the respects in which the originally approved development would be modified. These respects include the components or features of the development that would be modified, such as height, bulk, scale, floor space, open space and use, and the impacts of the modification of those components or features of the development. 2. Interpreting the law: This involves interpreting the words and phrases of the precondition in s 4.55(2) as to their meaning. 3. Categorising the facts found: This involves determining whether the facts found regarding the respects in which the development would be modified fall within or without the words and phrases of the precondition in s 4.55(2). American jurist, Karl Llewellyn termed such descriptions of words and phrases as "abstract fact-categories": Karl Llewellyn, The Bramble Bush: On Our Law and Its Study (Oceana Publication 1960) 80. In the Australian authorities, they are commonly referred to as "statutory descriptions" or "statutory criteria": see, for example, The Australian Gas Light Company v The Valuer-General (1940) 40 SR (NSW) 126 at 137-138; Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 156; Randwick Municipal Council v Manousaki (1988) 66 LGRA 330 at 333. The decision-maker's task is to determine whether the facts found fall within or without the statutory description, "according to the relative significance attached to them" by the decision-maker: The Australian Gas Light Company v The Valuer-General at 138.
Errors on questions of law can arise in each of these three stages, but they are different. In the first stage, finding the primary facts, the decision-maker will only commit an error of law if the primary facts found lack a basis or foundation in the evidence. A finding of fact for which there is no evidence in support involves an error of law: Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390; [2010] HCA 32 at [91] and Hoy v Coffs Harbour City Council (2016) 218 LGERA 411; [2016] NSWCA 257 at [28]. But provided there is some evidence in support of the finding of fact, no error on a question of law arises. A finding that is perverse or unreasonable, or against the weight of evidence, might be wrong in fact, but not in law; Azzopardi v Tasman UEB Industries Ltd at 155-156; Randwick Municipal Council v Manousaki at 333-334.
Even if the reasoning or logic by which the decision-maker reached the finding of fact were to be demonstrably unsound, this would not amount to an error of law: R v The District Court; Ex parte White (1966) 116 CLR 644 at 654; [1966] HCA 69; Randwick Municipal Council v Manousaki at 333-334; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356; [1990] HCA 33. Hence, "the determination of facts by a reasoning process marred though it be by patent error, illogicality or perversity will… never be vulnerable to attack as an error of law…": Azzopardi v Tasman UEB Industries Ltd at 156-157.
In the second step, misinterpretation of the law, including misinterpreting the words and phrases of the statutory description, will be an error of law. However, misapplication of the law, correctly stated, to the facts found, is an error of fact, not law: R (on the application of Thurston Parish Council) v Mid Suffolk District Council and Bloor Homes Limited [2023] JPL 494; [2022] EWCA Civ 1417 at [43], [54]-[56], [63]; Muscat Developments Pty Ltd v Wollondilly Shire Council [2023] NSWLEC 121 at [195]. Thus, any wrong application of the precondition in s 4.55(2)(a) to the facts found by the decision-maker is an error of fact, not law.
In the third step, categorising the facts found in the statutory description, the decision-maker will only make an error of law if the facts found necessarily fall within or without the statutory description and the decision-maker makes a contrary decision: The Australian Gas Light Company v The Valuer-General at 138; Azzopardi v Tasman UEB Industries Ltd at 156; Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287-288; [1993] FCA 456; Vetter v Lake Macquarie City Council (2001) 202 CLR 439; [2001] HCA 12 at [24]. If the facts found are reasonably capable of falling within or without the statutory description, a decision that they do fall within or without the description, depending on the relative significance the decision-maker assigns to the facts, will not raise a question of law: Randwick Municipal Council v Manousaki at 333.
In this appeal, the Council: 1. does not challenge the Commissioner's findings of primary facts; 2. does not challenge the Commissioner's interpretation of the law, including of the precondition in s 4.55(2)(a); 3. does challenge the Commissioner's application of the law, the precondition in s 4.55(2)(a), to the facts found (grounds 4 and 5); 4. does challenge that the primary facts found are capable of falling within the statutory description in s 4.55(2)(a) (ground 2); and 5. does challenge the Commissioner's conclusion that the facts found fell within the statutory description in s 4.55(2)(a), by applying a critical elements approach (ground 3).

The chain of reasoning ground

The Council's chain of reasoning ground is put in two ways. First, the Council asserts that the facts found by the Commissioner are incapable of falling within the statutory description in s 4.55(2)(a). Second, the Council asserts that the Commissioner's reasoning process of summing separate determinations of the precondition was in error. The Council asserted that the Commissioner's reasoning process involved firstly, examining the quantitative differences alone and making a negative determination that the two developments are not substantially the same, and secondly, finding that the lack of qualitative differences between the two developments and the lack of change of any critical element of the two developments are neutral factors. The Council argued that the Commissioner erred in making an overall positive determination that the two developments are substantially the same, as the summation of the negative and neutral determinations could only ever result in an overall negative determination that the modified development is not substantially the same development as the originally approved development.
The first way in which this ground is put can readily be rejected. The facts found by the Commissioner from the evidence before the court admit of different conclusions as to whether the modified development is substantially the same development as the originally approved development. If different conclusions are reasonably possible, it was necessary for the Commissioner to decide which was the correct conclusion. That was a question of fact: NSW Associated Blue-Metal Quarries Limited v Federal Commissioner of Taxation (1956) 94 CLR 509 at 512; [1956] HCA 80; Hope v Bathurst City Council (1980) 144 CLR 1 at 8; [1980] HCA 16. Accordingly, the Commissioner's conclusion that the facts found fell within the statutory description involved no error of law for this Court to correct on an appeal limited to errors on questions of law.
The second way in which this ground is put should be rejected for four reasons. First, the first assumption upon which the Council's argument is based, that the Commissioner determined that the precondition in s 4.55(2)(a) was not satisfied because of the quantitative differences, is incorrect. The Commissioner did not determine in [57] of the judgment that she was not satisfied of the precondition in s 4.55(2)(a) that the modified development is substantially the same development as the originally approved development. The Council has misread what the Commissioner said in [57]. The Commissioner said: "After considering the various opinions, I find that there are a number of quantitative differences between the two developments which on face value alone and without any further consideration may otherwise lead to a conclusion that the two developments are not substantially the same. However, this is not the test and is not of itself conclusive for the purpose of s 4.55(2) of the EPA Act."
That finding that "there are a number of quantitative differences between the two developments" was based on the Commissioner's "quantitative assessment of the proposed modification" in [42]-[56]. That is a finding of fact, not a categorisation of the facts found in the statutory description of the precondition in s 4.55(2)(a).
That the Commissioner did not determine finally in [57] that she was not satisfied of the precondition in s 4.55(2)(a) is evident from: 1. the use in [57] of the word "may"; 2. the use in [57] of the word "otherwise" after "may"; 3. the statement in [57] that the "number of quantitative differences between the two developments" is not the test for the purposes of s 4.55(2)(a); 4. the statement in [57] that the "number of quantitative differences between the two developments" "is not of itself conclusive"; 5. the statement in the following paragraph [58] that the Commissioner intended to "consider the evidence regarding the qualitative comparison of the two developments"; 6. the earlier statements in [30]-[34] of the judgment of what is "the test" for the purposes of s 4.55(2)(a), which statements of the test are not challenged by the Council as being incorrect in law; 7. the earlier statement in [41] of the judgment of the approach the Commissioner stated she would undertake to "consider the evidence before the Court as to the quantitative and qualitative comparison to assist in ultimately undertaking a comparison of the two developments to form the finely balanced positive opinion of satisfaction that the modified development is substantially the same development as the originally approved development"; and 8. the later statements in [65] and [66] of the judgment correctly applying the test, having regard to both quantitative and qualitative considerations.
Secondly, the second assumption on which the Council's argument is based is also incorrect. The Commissioner did not make any separate determination of whether she was satisfied of the precondition in s 4.55(2)(a) having regard to the qualitative differences between the two developments or any differences in critical elements of the two developments, or determine that any such differences were "neutral". The word "neutral" was not used by the Commissioner; that is the Council's gloss on what the Commissioner said.
The Commissioner in [59]-[66] undertook a "qualitative assessment of the proposed modification". This included a comparison of elevations and sections of the modified development and the originally approved development (at [59]-[60]), some of which are reproduced in the judgment, and consideration of the opinion and reasons of Mr Mead, Realize's town planner, "that in qualitative terms the proposal is substantially the same" (at [61]-[62]). The Commissioner did not make any determination of whether she was or was not satisfied of the precondition in s 4.55(2)(a) having regard only to the qualitative differences between the two developments.
As part of this "qualitative assessment", the Commissioner addressed the Council's argument that the changes in "critical elements" of the developments were sufficient to render the modified development not to be substantially the same development as the originally approved development (at [63]-[64]). The Council had submitted that the modifications of the critical elements were similar to those considered in an earlier case of The Satellite Group (Ultimo) Pty Ltd v Sydney City Council [1998] NSWLEC 244. The Commissioner did not accept the Council's submission that any change to any critical element was sufficient to "render the two developments not substantially the same" (at [64]). That finding is challenged by ground 3, the critical elements ground.
For the purposes of ground 2, however, the Commissioner's addressing of the Council's argument on the changes in the critical elements of the development evidences the Commissioner's qualitative assessment of the proposed modification as part of, but not separately from, her determination of whether she was satisfied of the precondition in s 4.55(2)(a).
The Commissioner's statement in the last sentence of [65] was based on her qualitative assessment of the proposed modification, including the lack of any significant change in any critical element of the developments. The Commissioner stated: "As I said above, I accept that there are differences, and some of those differences, in isolation, may appear to be significant, but on the whole and on balance, I prefer the evidence of Mr Mead because the approach is consistent with the test of s 4.55(2) of the EPA Act."
That statement is not, however, a separate determination of the precondition in s 4.55(2)(a) that the two developments are substantially the same. It is but an interim finding on the way to making the determination that she was satisfied of the precondition in s 4.55(2)(a), which is made in [66]. There, the Commissioner states: "For these reasons I find that the quantitative and qualitative changes identified above cause me to form the finely balanced positive opinion that the modified development is substantially the same development as the originally approved development."
As the Commissioner clearly states, this finding is based on her assessment of both "the quantitative and qualitative changes" that she had identified earlier in the judgment.
Thirdly, the approach that the Council contended the Commissioner undertook, of summing separate determinations of the precondition in s 4.55(2)(a) having regard to the quantitative differences and the qualitative differences, including changes in critical elements of the developments, was not in fact undertaken by the Commissioner. The Council's argument was that the Commissioner had made a "negative" determination that the two developments were not substantially the same, having regard to the quantitative differences alone; a "neutral" determination, having regard to the qualitative differences and absence of change in the critical elements of the developments; and hence, when summing these determinations, could not make a "positive" determination that the two developments are substantially the same. But that was not the Commissioner's approach, for reasons I have explained.
Fourthly, this approach, contended by the Council, of summing separate negative and neutral determinations of the precondition in s 4.55(2)(a) is inconsistent with the test in s 4.55(2)(a) and involves misdirection. The test in s 4.55(2)(a) requires a simple comparison of the two developments, the development as modified and the development as originally approved: Arrage v Inner West Council [2019] NSWLEC 85 at [24]; Feldkirchen Pty Ltd v Development Implementation Pty Ltd (2022) 254 LGERA 114; [2022] NSWCA 227 at [112]. This comparison can involve "an appreciation, qualitative, as well as quantitative, of the developments being compared in their proper context": Moto Projects (No 2) Pty Ltd v North Sydney Council (1999) 106 LGERA 298; [1999] NSWLEC 280 at [56]. But the comparison required by s 4.55(2)(a) remains a holistic one of the two developments being compared - the modified development and the originally approved development. The opinion of satisfaction that s 4.55(2)(a) requires is that the two developments being compared are substantially the same development, not that either the quantitative features or the qualitative features of the two developments are substantially the same.
That is not to say that the decision-maker cannot, in comparing the two developments, assess the differences in the quantitative and qualitative features of the two developments. Such an assessment might be of assistance in undertaking the comparison between the two developments. But this assessment can not displace the test in s 4.55(2)(a): Feldkirchen Pty Ltd v Development Implementation Pty Ltd at [112].
The Council's summation approach, summing separate determinations of the precondition having regard to the quantitative and qualitative differences as if a mathematical equation, is also inconsistent with the approach required under s 4.55(2)(a).
As I have earlier explained, a decision-maker, in deciding whether or not they are satisfied of the precondition in s 4.55(2)(a), undertakes three tasks: finding the primary facts, interpreting the precondition in s 4.55(2)(a), and categorising the facts found in the statutory description of the precondition in s 4.55(2)(a). The first task includes finding what are the differences, including quantitative and qualitative differences, between the developments. These might include that the modified development is higher or bulkier, has greater floor space or less open space, or has different uses, than the originally approved development. By themselves, those findings of fact are uninformative of whether the modified development is or is not substantially the same development as the originally approved development. That question can only be answered by undertaking the third task of categorising the facts found in the statutory description of the precondition in s 4.55(2)(a).
This third task of categorising the facts in the statutory description is an evaluative one. It involves assigning relative significance or weight to the different facts and a balancing of the facts, as weighted. This categorisation can be an instinctive synthesis and need not be articulated expressly.
A decision-maker could, for example, give greater significance or weight to quantitative differences than to qualitative differences between the two developments, or the reverse, or give greater significance or weight to some quantitative differences than other quantitative difference or to some qualitative differences than other qualitative differences. This evaluation of the facts in undertaking the categorisation of the facts in the statutory description is an essential task in deciding whether or not the decision maker is satisfied of the precondition in s 4.55(2)(a).
The Council's summation approach - summing a negative determination of the quantitative differences and a neutral determination of the qualitative differences to yield an overall negative determination - is inconsistent with the evaluative approach required by s 4.55(2)(a).

The critical elements ground

The Council's critical elements ground contends that the Commissioner erred in not finding that the modified development involved deleting or modifying critical elements of the originally approved development. The Council argued that the proposed modification involved changing critical elements of the development, which it summarised in ground 3 to be: "• Removing the ground floor visitor carpark; • Complete reconfiguration and relocation of the only driveway serving 439 space carpark; • More than doubling the size of the 'Community Open Space'; • Completely reconfiguring the 'Community Open Space'; • Adding two extra floors to the approved development (over 50% of the floor plate)."
The Council contended that the Commissioner erred by failing to conclude that, by reason of these changes in critical elements, the modified development was not substantially the same development as the originally approved development.
The Commissioner addressed the Council's critical elements argument in [43], [44], [63] and [64], but found in [64]: "Therefore, I am not satisfied that any critical element, such as Tenancy A, is being deleted from or even modified so significantly that would render the two developments not substantially the same."
The Council challenged the correctness of this factual finding. The Council set out in its submissions why the Commissioner should have found on the evidence that there were significant changes in the critical elements of the developments.
I reject the critical elements ground for two reasons. First, the Commissioner's finding that she was not satisfied that any critical element was "being deleted from or even modified so significantly that would render the two developments not substantially the same", was factual. Even if the finding were to be wrong in fact, as the Council contended it was, that involved no error on a question of law. A finding that is perverse or against the weight of the evidence is wrong in fact, but not in law: Azzopardi v Tasman UEB Industries Ltd at 155-156; Randwick Municipal Council v Manousaki at 333-334.
Secondly, undertaking the comparison of developments required by the precondition in s 4.55(2)(a) does not demand an identification and comparison of the "critical elements" of the two developments. The precondition in s 4.55(2)(a) does not refer to "critical elements", or even "elements", of the two developments.
The language of "critical element" was used in one of the decisions relied on by the Council in the court below, The Satellite Group (Ultimo) Pty Ltd v Sydney City Council at [29]. There, Talbot J said that, in that case, it was not appropriate to confine the consideration of the extent of changes to the context of the whole building, rather the "focus may be on a critical element of a building which is to be the subject of change in order to determine whether the entire development is substantially the same development."
This approach of considering whether a critical element of the development is being changed has also been used in other judicial decisions. In Moto Projects (No 2) Pty Ltd v North Sydney Council, Bignold J considered whether "material and essential features" or a "material and essential physical element" of the development was being changed: see at [58], [59] and [64].
As I noted in Arrage v Inner West Council at [26] and [27], the use of language in the judicial decisions of "essential element", or like language, derives from judicial interpretation of the statutory test that the modified development be "substantially the same" development as the originally approved development. In Vacik Pty Ltd v Penrith City Council [1992] NSWLEC 8, Stein J interpreted the word "substantially" in the former s 102(1)(a) of the EPA Act to mean "essentially or materially or having the same essence." This interpretation of the statutory test, now in s 4.55(2)(a), can support an inquiry to identify the material and essential features of the originally approved and modified developments in order to undertake the comparative exercise required, but it does not demand such an inquiry.
The fact that Talbot J chose to undertake this inquiry in The Satellite Group (Ultimo) Pty Ltd v Sydney City Council and that Bignold J did likewise in Moto Projects (No 2) Pty Ltd v North Sydney City Council does not make such inquiry a legal requirement under s 4.55(2)(a).
In this circumstance, the Commissioner's finding in [64] regarding the lack of change in the critical elements of the developments raised no error on a question of law.

The consequences ground

The consequences ground, raised in grounds 4 and 5, contends that, although the Commissioner correctly articulated the test for determining whether the precondition in s 4.55(2)(b) was satisfied, the Commissioner failed to apply that test in categorising the facts found. The Council contended that the Commissioner accepted and adopted the approach of Mr Mead, Realize's town planner, which the Council contended considered only the consequences of the modification of the development. This involved misapplication of the test.
The Commissioner at [61] recorded Mr Mead's opinion that "in qualitative terms the proposal is substantially the same" and quoted extracts of his expert evidence in the Addendum SEE [Statement of Expert Evidence]. At [62], the Commissioner stated: "I accept and adopt Mr Mead's qualitative conclusion, articulated in the Addendum SEE at page 21, at pars (a) to (d) that 'the proposal as modified: (a) Will not change the nature or the intensity of the use; (b) Whilst improving the relationship to the public domain at ground level, this is similar with the intent established in the original approval; (c) Will not change the relationship to surrounding developments as the modifications will maintain the character of the original approval; (d) Where an increase in floor space and height is proposed on the upper levels, the development is consistent with the original approval as a whole, and the bulk and scale which establishes the streetscape character (from ground levels to levels 7/8) is unchanged per the original approval;' Mr Mead continues at paras (e) to (f) on page 21 of the Addendum SEE with merit based opinions which are not relevant at this stage of jurisdictional enquiry."
The Council contended that Mr Mead's qualitative assessment of the consequences or impacts of the modification, quoted in [61] and [62], failed "to squarely address the statutory test in s 4.55(2)(a)" (Appellant's written submissions, [49]). The Council submitted that consideration of the impacts of the modified development arises at the stage of merit assessment required by s 4.55(3) of the EPA Act, but not at the stage of determining whether the precondition in s 4.55(2)(a) is satisfied. Mr Mead's approach conflated two different matters, being the merit assessment under s 4.55(3) with the question under s 4.55(2)(a) of whether or not the modified development was substantially the same development as the originally approved development.
The Council submitted that the Commissioner fell into error by accepting and adopting Mr Mead's conclusions, as those conclusions were reached by adopting an approach that was inconsistent with the statutory test in s 4.55(2)(a).
The Council's consequences ground should be rejected for four reasons. First, the foundation of the ground is incorrect. Mr Mead did not consider only the consequences or impacts of the proposed modification. Such a limitation of consideration is not evidenced in either of the extracts of Mr Mead's evidence quoted in [61] and [62], or elsewhere in his evidence referred to by the Commissioner earlier in the judgment. Indeed, to the contrary, Mr Mead disavowed the approach the Council contended he adopted. In [1.12] of the Addendum SEE, quoted by the Commissioner in [61], Mr Mead stated: "In addition to the above, it is also noted that whether or not there will be increased environmental or neighbourhood amenity impacts under the proposed modification development is not a consideration as to whether or not a modification proposal is substantially the same under Section 4.55 of the EP&A Act. Notwithstanding, the proposed modifications will not result in any significant adverse amenity impacts to the surrounding land, and in particular will have no impact on any surrounding residential properties."
Secondly, the Commissioner's statement in the last sentence of [65] that "I prefer the evidence of Mr Mead because the approach is consistent with the test of s 4.55(2) of the EPA Act", was not restricted to what Mr Mead had said in the extract quoted in [62], but rather referred to all of Mr Mead's evidence to which the Commissioner had referred earlier in the judgment, assessing both the quantitative and qualitative differences of the two developments. The approach of Mr Mead in this evidence did not restrict consideration only to consequences or impacts of the proposed modification, but reflected the correct test for the comparison required by s 4.55(2)(a). Hence, the Commissioner's acceptance and adoption of, and preference for, Mr Mead's evidence reveals no misapplication of the test under s 4.55(2)(a).
Thirdly, the Commissioner's statement in the last sentence of [65] that she preferred the evidence of Mr Mead "because the approach is consistent with the test in s 4.55(2) of the EPA Act" does not reveal that the Commissioner misinterpreted or misapplied the test in s 4.55(2)(a). The Commissioner had earlier articulated what she understood the test in s 4.55(2)(a) to be. The Council did not contend that the Commissioner had incorrectly identified or interpreted the test. The Commissioner's reference in the last sentence of [65] to "the test of s 4.55(2) of the EPA Act" therefore needs to be read in the context of the Commissioner's judgment as a whole, including: the Commissioner's quotation of s 4.55(2) in [30]; the discussion of and quotation of relevant passages from the authorities on the test in s 4.55(2)(a) in [30]-[33]; the correct statement of the test in s 4.55(2)(a) in [30]-[34], [41] and [66]; the statement that the test in s 4.55(2)(a) requires a quantitative and qualitative comparison to assist in forming the opinion of satisfaction that the modified development is substantially the same development as the originally approved development in [41], [57] and [58], and [66]; and the separate sections on the "quantitative assessment of the proposed modification" in [42]-[58] and "qualitative assessment of the proposed modification" in [59]-[65]. Viewed in that context, the Commissioner's statements that she accepted and adopted Mr Mead's qualitative conclusion (in [62]) and preferred Mr Mead's evidence (in [65]) do not reveal that the Commissioner misapplied the test in s 4.55(2)(a), which she had correctly identified and interpreted.
Fourthly, the Council's argument in the consequences ground is not that the Commissioner misinterpreted the test in s 4.55(2)(a), but instead that the Commissioner misapplied the test. Misapplication of the test, however, does not give rise to error on a question of law: R (on the application of Thurston Parish Council) v Mid Suffolk District Council and Bloor Homes Limited at [43], [54]-[56], [63]. Only the misinterpretation of the test in s 4.55(2)(a) would constitute an error of law for the Court to correct on an appeal limited to errors on questions of law. Hence, even if the Commissioner were to be shown to have misapplied the test in s 4.55(2)(a), that would not be an appealable error on a question of law.

Conclusion and orders

The Council has not established any of its grounds of appeal. The appeal should be dismissed. The usual order for costs in a s 56A appeal should apply, namely that costs follow the event.
The Court orders: 1. The appeal is dismissed. 2. The appellant is to pay the respondent's costs of the appeal.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 04 April 2024

Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390; [2010] HCA 32

Moto Projects (No 2) Pty Ltd v North Sydney Council (1999) 106 LGERA 298; [1999] NSWLEC 280

Muscat Developments Pty Ltd v Wollondilly Shire Council [2023] NSWLEC 121

NSW Associated Blue-Metal Quarries Limited v Federal Commissioner of Taxation (1956) 94 CLR 509; [1956] HCA 80

R v The District Court; Ex parte White (1966) 116 CLR 644; [1966] HCA 69

R (on the application of Thurston Parish Council) v Mid Suffolk District Council and Bloor Homes Limited [2023] JPL 494; [2022] EWCA Civ 1417

Randwick Municipal Council v Manousaki (1988) 66 LGRA 330

The Australian Gas Light Company v The Valuer-General [1940] NSWStRp 9; (1940) 40 SR (NSW) 126

The Satellite Group (Ultimo) Pty Ltd v Sydney City Council [1998] NSWLEC 244

Vacik Pty Ltd v Penrith City Council [1992] NSWLEC 8

Vetter v Lake Macquarie City Council (2001) 202 CLR 439; [2001] HCA 12

Karl Llewellyn, The Bramble Bush: On Our Law and Its Study (Oceana Publication 1960)

Canterbury-Bankstown Council (the Council) has appealed against the decision of Commissioner Espinosa to uphold an appeal by Realize Architecture Pty Ltd (Realize) and modify a development consent for a high-density residential development at 1-13 Close Street and 242-258 Canterbury Road, Canterbury. The Council's appeal, under s 56A(1) of the Land and Environment Court Act 1979 (NSW), is on a question of law.
The Council raises in its summons commencing the appeal six grounds of appeal, contending the Commissioner erred in law, in different ways, in applying s 4.55(2)(a) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act). At the hearing of the appeal, the Council withdrew or did not press the first and sixth grounds, leaving four grounds of appeal to be determined.
Section 4.55(2) was the relevant power the Commissioner was exercising in modifying the consent. Section 4.55(2)(a) fixes a pre-condition to the exercise of the power that the Commissioner be "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)."
The Commissioner found, on the evidence before the Court, that she was satisfied of this pre-condition, that the development as modified was substantially the same development as the originally approved development: at [66] of the judgment.
The Council's four grounds of appeal fall into three categories:

(a) error in the chain of reasoning for finding that the developments are substantially the same (ground 2) (the chain of reasoning ground);

(b) error in failing to conclude that the changes in the critical elements of the development caused the developments not to be substantially the same (ground 3) (the critical elements ground); and

(c) error in adopting the conclusion and approach of Realize's town planner that the developments are substantially the same because the consequences of the developments are substantially the same (grounds 4 and 5) (the consequences ground).

I find that the Council has not established any of these grounds of appeal. The appeal should be dismissed with costs.

Setting the grounds of appeal in the context of an appeal on error of law

In deciding whether or not the development as modified is substantially the same development as the development for which consent was originally granted, the Commissioner needed to undertake three tasks:

(a) Finding the primary facts: This involves drawing inferences of fact from the evidence of the respects in which the originally approved development would be modified. These respects include the components or features of the development that would be modified, such as height, bulk, scale, floor space, open space and use, and the impacts of the modification of those components or features of the development.

(b) Interpreting the law: This involves interpreting the words and phrases of the precondition in s 4.55(2) as to their meaning.

(c) Categorising the facts found: This involves determining whether the facts found regarding the respects in which the development would be modified fall within or without the words and phrases of the precondition in s 4.55(2). American jurist, Karl Llewellyn termed such descriptions of words and phrases as "abstract fact-categories": Karl Llewellyn, The Bramble Bush: On Our Law and Its Study (Oceana Publication 1960) 80. In the Australian authorities, they are commonly referred to as "statutory descriptions" or "statutory criteria": see, for example, The Australian Gas Light Company v The Valuer-General [1940] NSWStRp 9; (1940) 40 SR (NSW) 126 at 137-138; Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 156; Randwick Municipal Council v Manousaki (1988) 66 LGRA 330 at 333. The decision-maker's task is to determine whether the facts found fall within or without the statutory description, "according to the relative significance attached to them" by the decision-maker: The Australian Gas Light Company v The Valuer-General at 138.

Errors on questions of law can arise in each of these three stages, but they are different. In the first stage, finding the primary facts, the decision-maker will only commit an error of law if the primary facts found lack a basis or foundation in the evidence. A finding of fact for which there is no evidence in support involves an error of law: Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390; [2010] HCA 32 at [91] and Hoy v Coffs Harbour City Council (2016) 218 LGERA 411; [2016] NSWCA 257 at [28]. But provided there is some evidence in support of the finding of fact, no error on a question of law arises. A finding that is perverse or unreasonable, or against the weight of evidence, might be wrong in fact, but not in law; Azzopardi v Tasman UEB Industries Ltd at 155-156; Randwick Municipal Council v Manousaki at 333-334.
Even if the reasoning or logic by which the decision-maker reached the finding of fact were to be demonstrably unsound, this would not amount to an error of law: R v The District Court; Ex parte White [1966] HCA 69; (1966) 116 CLR 644 at 654; [1966] HCA 69; Randwick Municipal Council v Manousaki at 333-334; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356; [1990] HCA 33. Hence, "the determination of facts by a reasoning process marred though it be by patent error, illogicality or perversity will... never be vulnerable to attack as an error of law...": Azzopardi v Tasman UEB Industries Ltd at 156-157.
In the second step, misinterpretation of the law, including misinterpreting the words and phrases of the statutory description, will be an error of law. However, misapplication of the law, correctly stated, to the facts found, is an error of fact, not law: R (on the application of Thurston Parish Council) v Mid Suffolk District Council and Bloor Homes Limited [2023] JPL 494; [2022] EWCA Civ 1417 at [43], [54]-[56], [63]; Muscat Developments Pty Ltd v Wollondilly Shire Council [2023] NSWLEC 121 at [195]. Thus, any wrong application of the precondition in s 4.55(2)(a) to the facts found by the decision-maker is an error of fact, not law.
In the third step, categorising the facts found in the statutory description, the decision-maker will only make an error of law if the facts found necessarily fall within or without the statutory description and the decision-maker makes a contrary decision: The Australian Gas Light Company v The Valuer-General at 138; Azzopardi v Tasman UEB Industries Ltd at 156; Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 356; (1993) 43 FCR 280 at 287-288; [1993] FCA 456; Vetter v Lake Macquarie City Council (2001) 202 CLR 439; [2001] HCA 12 at [24]. If the facts found are reasonably capable of falling within or without the statutory description, a decision that they do fall within or without the description, depending on the relative significance the decision-maker assigns to the facts, will not raise a question of law: Randwick Municipal Council v Manousaki at 333.
In this appeal, the Council:

(a) does not challenge the Commissioner's findings of primary facts;

(b) does not challenge the Commissioner's interpretation of the law, including of the precondition in s 4.55(2)(a);

(c) does challenge the Commissioner's application of the law, the precondition in s 4.55(2)(a), to the facts found (grounds 4 and 5);

(d) does challenge that the primary facts found are capable of falling within the statutory description in s 4.55(2)(a) (ground 2); and

(e) does challenge the Commissioner's conclusion that the facts found fell within the statutory description in s 4.55(2)(a), by applying a critical elements approach (ground 3).

The Council's chain of reasoning ground is put in two ways. First, the Council asserts that the facts found by the Commissioner are incapable of falling within the statutory description in s 4.55(2)(a). Second, the Council asserts that the Commissioner's reasoning process of summing separate determinations of the precondition was in error. The Council asserted that the Commissioner's reasoning process involved firstly, examining the quantitative differences alone and making a negative determination that the two developments are not substantially the same, and secondly, finding that the lack of qualitative differences between the two developments and the lack of change of any critical element of the two developments are neutral factors. The Council argued that the Commissioner erred in making an overall positive determination that the two developments are substantially the same, as the summation of the negative and neutral determinations could only ever result in an overall negative determination that the modified development is not substantially the same development as the originally approved development.
The first way in which this ground is put can readily be rejected. The facts found by the Commissioner from the evidence before the court admit of different conclusions as to whether the modified development is substantially the same development as the originally approved development. If different conclusions are reasonably possible, it was necessary for the Commissioner to decide which was the correct conclusion. That was a question of fact: NSW Associated Blue-Metal Quarries Limited v Federal Commissioner of Taxation [1956] HCA 80; (1956) 94 CLR 509 at 512; [1956] HCA 80; Hope v Bathurst City Council [1980] HCA 16; (1980) 144 CLR 1 at 8; [1980] HCA 16. Accordingly, the Commissioner's conclusion that the facts found fell within the statutory description involved no error of law for this Court to correct on an appeal limited to errors on questions of law.
The second way in which this ground is put should be rejected for four reasons. First, the first assumption upon which the Council's argument is based, that the Commissioner determined that the precondition in s 4.55(2)(a) was not satisfied because of the quantitative differences, is incorrect. The Commissioner did not determine in [57] of the judgment that she was not satisfied of the precondition in s 4.55(2)(a) that the modified development is substantially the same development as the originally approved development. The Council has misread what the Commissioner said in [57]. The Commissioner said:

"After considering the various opinions, I find that there are a number of quantitative differences between the two developments which on face value alone and without any further consideration may otherwise lead to a conclusion that the two developments are not substantially the same. However, this is not the test and is not of itself conclusive for the purpose of s 4.55(2) of the EPA Act."

That finding that "there are a number of quantitative differences between the two developments" was based on the Commissioner's "quantitative assessment of the proposed modification" in [42]-[56]. That is a finding of fact, not a categorisation of the facts found in the statutory description of the precondition in s 4.55(2)(a).
That the Commissioner did not determine finally in [57] that she was not satisfied of the precondition in s 4.55(2)(a) is evident from:

(a) the use in [57] of the word "may";

(b) the use in [57] of the word "otherwise" after "may";

(c) the statement in [57] that the "number of quantitative differences between the two developments" is not the test for the purposes of s 4.55(2)(a);

(d) the statement in [57] that the "number of quantitative differences between the two developments" "is not of itself conclusive";

(e) the statement in the following paragraph [58] that the Commissioner intended to "consider the evidence regarding the qualitative comparison of the two developments";

(f) the earlier statements in [30]-[34] of the judgment of what is "the test" for the purposes of s 4.55(2)(a), which statements of the test are not challenged by the Council as being incorrect in law;

(g) the earlier statement in [41] of the judgment of the approach the Commissioner stated she would undertake to "consider the evidence before the Court as to the quantitative and qualitative comparison to assist in ultimately undertaking a comparison of the two developments to form the finely balanced positive opinion of satisfaction that the modified development is substantially the same development as the originally approved development"; and

(h) the later statements in [65] and [66] of the judgment correctly applying the test, having regard to both quantitative and qualitative considerations.

Secondly, the second assumption on which the Council's argument is based is also incorrect. The Commissioner did not make any separate determination of whether she was satisfied of the precondition in s 4.55(2)(a) having regard to the qualitative differences between the two developments or any differences in critical elements of the two developments, or determine that any such differences were "neutral". The word "neutral" was not used by the Commissioner; that is the Council's gloss on what the Commissioner said.
The Commissioner in [59]-[66] undertook a "qualitative assessment of the proposed modification". This included a comparison of elevations and sections of the modified development and the originally approved development (at [59]-[60]), some of which are reproduced in the judgment, and consideration of the opinion and reasons of Mr Mead, Realize's town planner, "that in qualitative terms the proposal is substantially the same" (at [61]-[62]). The Commissioner did not make any determination of whether she was or was not satisfied of the precondition in s 4.55(2)(a) having regard only to the qualitative differences between the two developments.
As part of this "qualitative assessment", the Commissioner addressed the Council's argument that the changes in "critical elements" of the developments were sufficient to render the modified development not to be substantially the same development as the originally approved development (at [63]-[64]). The Council had submitted that the modifications of the critical elements were similar to those considered in an earlier case of The Satellite Group (Ultimo) Pty Ltd v Sydney City Council [1998] NSWLEC 244. The Commissioner did not accept the Council's submission that any change to any critical element was sufficient to "render the two developments not substantially the same" (at [64]). That finding is challenged by ground 3, the critical elements ground.
For the purposes of ground 2, however, the Commissioner's addressing of the Council's argument on the changes in the critical elements of the development evidences the Commissioner's qualitative assessment of the proposed modification as part of, but not separately from, her determination of whether she was satisfied of the precondition in s 4.55(2)(a).
The Commissioner's statement in the last sentence of [65] was based on her qualitative assessment of the proposed modification, including the lack of any significant change in any critical element of the developments. The Commissioner stated:

"As I said above, I accept that there are differences, and some of those differences, in isolation, may appear to be significant, but on the whole and on balance, I prefer the evidence of Mr Mead because the approach is consistent with the test of s 4.55(2) of the EPA Act."

That statement is not, however, a separate determination of the precondition in s 4.55(2)(a) that the two developments are substantially the same. It is but an interim finding on the way to making the determination that she was satisfied of the precondition in s 4.55(2)(a), which is made in [66]. There, the Commissioner states:

"For these reasons I find that the quantitative and qualitative changes identified above cause me to form the finely balanced positive opinion that the modified development is substantially the same development as the originally approved development."

As the Commissioner clearly states, this finding is based on her assessment of both "the quantitative and qualitative changes" that she had identified earlier in the judgment.
Thirdly, the approach that the Council contended the Commissioner undertook, of summing separate determinations of the precondition in s 4.55(2)(a) having regard to the quantitative differences and the qualitative differences, including changes in critical elements of the developments, was not in fact undertaken by the Commissioner. The Council's argument was that the Commissioner had made a "negative" determination that the two developments were not substantially the same, having regard to the quantitative differences alone; a "neutral" determination, having regard to the qualitative differences and absence of change in the critical elements of the developments; and hence, when summing these determinations, could not make a "positive" determination that the two developments are substantially the same. But that was not the Commissioner's approach, for reasons I have explained.
Fourthly, this approach, contended by the Council, of summing separate negative and neutral determinations of the precondition in s 4.55(2)(a) is inconsistent with the test in s 4.55(2)(a) and involves misdirection. The test in s 4.55(2)(a) requires a simple comparison of the two developments, the development as modified and the development as originally approved: Arrage v Inner West Council [2019] NSWLEC 85 at [24]; Feldkirchen Pty Ltd v Development Implementation Pty Ltd (2022) 254 LGERA 114; [2022] NSWCA 227 at [112]. This comparison can involve "an appreciation, qualitative, as well as quantitative, of the developments being compared in their proper context": Moto Projects (No 2) Pty Ltd v North Sydney Council (1999) 106 LGERA 298; [1999] NSWLEC 280 at [56]. But the comparison required by s 4.55(2)(a) remains a holistic one of the two developments being compared - the modified development and the originally approved development. The opinion of satisfaction that s 4.55(2)(a) requires is that the two developments being compared are substantially the same development, not that either the quantitative features or the qualitative features of the two developments are substantially the same.
That is not to say that the decision-maker cannot, in comparing the two developments, assess the differences in the quantitative and qualitative features of the two developments. Such an assessment might be of assistance in undertaking the comparison between the two developments. But this assessment can not displace the test in s 4.55(2)(a): Feldkirchen Pty Ltd v Development Implementation Pty Ltd at [112].
The Council's summation approach, summing separate determinations of the precondition having regard to the quantitative and qualitative differences as if a mathematical equation, is also inconsistent with the approach required under s 4.55(2)(a).
As I have earlier explained, a decision-maker, in deciding whether or not they are satisfied of the precondition in s 4.55(2)(a), undertakes three tasks: finding the primary facts, interpreting the precondition in s 4.55(2)(a), and categorising the facts found in the statutory description of the precondition in s 4.55(2)(a). The first task includes finding what are the differences, including quantitative and qualitative differences, between the developments. These might include that the modified development is higher or bulkier, has greater floor space or less open space, or has different uses, than the originally approved development. By themselves, those findings of fact are uninformative of whether the modified development is or is not substantially the same development as the originally approved development. That question can only be answered by undertaking the third task of categorising the facts found in the statutory description of the precondition in s 4.55(2)(a).
This third task of categorising the facts in the statutory description is an evaluative one. It involves assigning relative significance or weight to the different facts and a balancing of the facts, as weighted. This categorisation can be an instinctive synthesis and need not be articulated expressly.
A decision-maker could, for example, give greater significance or weight to quantitative differences than to qualitative differences between the two developments, or the reverse, or give greater significance or weight to some quantitative differences than other quantitative difference or to some qualitative differences than other qualitative differences. This evaluation of the facts in undertaking the categorisation of the facts in the statutory description is an essential task in deciding whether or not the decision maker is satisfied of the precondition in s 4.55(2)(a).
The Council's summation approach - summing a negative determination of the quantitative differences and a neutral determination of the qualitative differences to yield an overall negative determination - is inconsistent with the evaluative approach required by s 4.55(2)(a).

The Council's critical elements ground contends that the Commissioner erred in not finding that the modified development involved deleting or modifying critical elements of the originally approved development. The Council argued that the proposed modification involved changing critical elements of the development, which it summarised in ground 3 to be:

"• Removing the ground floor visitor carpark;

• Complete reconfiguration and relocation of the only driveway serving 439 space carpark;

• More than doubling the size of the 'Community Open Space';

• Completely reconfiguring the 'Community Open Space';

• Adding two extra floors to the approved development (over 50% of the floor plate)."

The Council contended that the Commissioner erred by failing to conclude that, by reason of these changes in critical elements, the modified development was not substantially the same development as the originally approved development.
The Commissioner addressed the Council's critical elements argument in [43], [44], [63] and [64], but found in [64]:

"Therefore, I am not satisfied that any critical element, such as Tenancy A, is being deleted from or even modified so significantly that would render the two developments not substantially the same."

The Council challenged the correctness of this factual finding. The Council set out in its submissions why the Commissioner should have found on the evidence that there were significant changes in the critical elements of the developments.
I reject the critical elements ground for two reasons. First, the Commissioner's finding that she was not satisfied that any critical element was "being deleted from or even modified so significantly that would render the two developments not substantially the same", was factual. Even if the finding were to be wrong in fact, as the Council contended it was, that involved no error on a question of law. A finding that is perverse or against the weight of the evidence is wrong in fact, but not in law: Azzopardi v Tasman UEB Industries Ltd at 155-156; Randwick Municipal Council v Manousaki at 333-334.
Secondly, undertaking the comparison of developments required by the precondition in s 4.55(2)(a) does not demand an identification and comparison of the "critical elements" of the two developments. The precondition in s 4.55(2)(a) does not refer to "critical elements", or even "elements", of the two developments.
The language of "critical element" was used in one of the decisions relied on by the Council in the court below, The Satellite Group (Ultimo) Pty Ltd v Sydney City Council at [29]. There, Talbot J said that, in that case, it was not appropriate to confine the consideration of the extent of changes to the context of the whole building, rather the "focus may be on a critical element of a building which is to be the subject of change in order to determine whether the entire development is substantially the same development."
This approach of considering whether a critical element of the development is being changed has also been used in other judicial decisions. In Moto Projects (No 2) Pty Ltd v North Sydney Council, Bignold J considered whether "material and essential features" or a "material and essential physical element" of the development was being changed: see at [58], [59] and [64].
As I noted in Arrage v Inner West Council at [26] and [27], the use of language in the judicial decisions of "essential element", or like language, derives from judicial interpretation of the statutory test that the modified development be "substantially the same" development as the originally approved development. In Vacik Pty Ltd v Penrith City Council [1992] NSWLEC 8, Stein J interpreted the word "substantially" in the former s 102(1)(a) of the EPA Act to mean "essentially or materially or having the same essence." This interpretation of the statutory test, now in s 4.55(2)(a), can support an inquiry to identify the material and essential features of the originally approved and modified developments in order to undertake the comparative exercise required, but it does not demand such an inquiry.
The fact that Talbot J chose to undertake this inquiry in The Satellite Group (Ultimo) Pty Ltd v Sydney City Council and that Bignold J did likewise in Moto Projects (No 2) Pty Ltd v North Sydney City Council does not make such inquiry a legal requirement under s 4.55(2)(a).
In this circumstance, the Commissioner's finding in [64] regarding the lack of change in the critical elements of the developments raised no error on a question of law.

The consequences ground, raised in grounds 4 and 5, contends that, although the Commissioner correctly articulated the test for determining whether the precondition in s 4.55(2)(b) was satisfied, the Commissioner failed to apply that test in categorising the facts found. The Council contended that the Commissioner accepted and adopted the approach of Mr Mead, Realize's town planner, which the Council contended considered only the consequences of the modification of the development. This involved misapplication of the test.
The Commissioner at [61] recorded Mr Mead's opinion that "in qualitative terms the proposal is substantially the same" and quoted extracts of his expert evidence in the Addendum SEE [Statement of Expert Evidence]. At [62], the Commissioner stated:

"I accept and adopt Mr Mead's qualitative conclusion, articulated in the Addendum SEE at page 21, at pars (a) to (d) that

'the proposal as modified:

(a) Will not change the nature or the intensity of the use;

(b) Whilst improving the relationship to the public domain at ground level, this is similar with the intent established in the original approval;

(c) Will not change the relationship to surrounding developments as the modifications will maintain the character of the original approval;

(d) Where an increase in floor space and height is proposed on the upper levels, the development is consistent with the original approval as a whole, and the bulk and scale which establishes the streetscape character (from ground levels to levels 7/8) is unchanged per the original approval;'

Mr Mead continues at paras (e) to (f) on page 21 of the Addendum SEE with merit based opinions which are not relevant at this stage of jurisdictional enquiry."

The Council contended that Mr Mead's qualitative assessment of the consequences or impacts of the modification, quoted in [61] and [62], failed "to squarely address the statutory test in s 4.55(2)(a)" (Appellant's written submissions, [49]). The Council submitted that consideration of the impacts of the modified development arises at the stage of merit assessment required by s 4.55(3) of the EPA Act, but not at the stage of determining whether the precondition in s 4.55(2)(a) is satisfied. Mr Mead's approach conflated two different matters, being the merit assessment under s 4.55(3) with the question under s 4.55(2)(a) of whether or not the modified development was substantially the same development as the originally approved development.
The Council submitted that the Commissioner fell into error by accepting and adopting Mr Mead's conclusions, as those conclusions were reached by adopting an approach that was inconsistent with the statutory test in s 4.55(2)(a).
The Council's consequences ground should be rejected for four reasons. First, the foundation of the ground is incorrect. Mr Mead did not consider only the consequences or impacts of the proposed modification. Such a limitation of consideration is not evidenced in either of the extracts of Mr Mead's evidence quoted in [61] and [62], or elsewhere in his evidence referred to by the Commissioner earlier in the judgment. Indeed, to the contrary, Mr Mead disavowed the approach the Council contended he adopted. In [1.12] of the Addendum SEE, quoted by the Commissioner in [61], Mr Mead stated:

"In addition to the above, it is also noted that whether or not there will be increased environmental or neighbourhood amenity impacts under the proposed modification development is not a consideration as to whether or not a modification proposal is substantially the same under Section 4.55 of the EP&A Act. Notwithstanding, the proposed modifications will not result in any significant adverse amenity impacts to the surrounding land, and in particular will have no impact on any surrounding residential properties."

Secondly, the Commissioner's statement in the last sentence of [65] that "I prefer the evidence of Mr Mead because the approach is consistent with the test of s 4.55(2) of the EPA Act", was not restricted to what Mr Mead had said in the extract quoted in [62], but rather referred to all of Mr Mead's evidence to which the Commissioner had referred earlier in the judgment, assessing both the quantitative and qualitative differences of the two developments. The approach of Mr Mead in this evidence did not restrict consideration only to consequences or impacts of the proposed modification, but reflected the correct test for the comparison required by s 4.55(2)(a). Hence, the Commissioner's acceptance and adoption of, and preference for, Mr Mead's evidence reveals no misapplication of the test under s 4.55(2)(a).
Thirdly, the Commissioner's statement in the last sentence of [65] that she preferred the evidence of Mr Mead "because the approach is consistent with the test in s 4.55(2) of the EPA Act" does not reveal that the Commissioner misinterpreted or misapplied the test in s 4.55(2)(a). The Commissioner had earlier articulated what she understood the test in s 4.55(2)(a) to be. The Council did not contend that the Commissioner had incorrectly identified or interpreted the test. The Commissioner's reference in the last sentence of [65] to "the test of s 4.55(2) of the EPA Act" therefore needs to be read in the context of the Commissioner's judgment as a whole, including: the Commissioner's quotation of s 4.55(2) in [30]; the discussion of and quotation of relevant passages from the authorities on the test in s 4.55(2)(a) in [30]-[33]; the correct statement of the test in s 4.55(2)(a) in [30]-[34], [41] and [66]; the statement that the test in s 4.55(2)(a) requires a quantitative and qualitative comparison to assist in forming the opinion of satisfaction that the modified development is substantially the same development as the originally approved development in [41], [57] and [58], and [66]; and the separate sections on the "quantitative assessment of the proposed modification" in [42]-[58] and "qualitative assessment of the proposed modification" in [59]-[65]. Viewed in that context, the Commissioner's statements that she accepted and adopted Mr Mead's qualitative conclusion (in [62]) and preferred Mr Mead's evidence (in [65]) do not reveal that the Commissioner misapplied the test in s 4.55(2)(a), which she had correctly identified and interpreted.
Fourthly, the Council's argument in the consequences ground is not that the Commissioner misinterpreted the test in s 4.55(2)(a), but instead that the Commissioner misapplied the test. Misapplication of the test, however, does not give rise to error on a question of law: R (on the application of Thurston Parish Council) v Mid Suffolk District Council and Bloor Homes Limited at [43], [54]-[56], [63]. Only the misinterpretation of the test in s 4.55(2)(a) would constitute an error of law for the Court to correct on an appeal limited to errors on questions of law. Hence, even if the Commissioner were to be shown to have misapplied the test in s 4.55(2)(a), that would not be an appealable error on a question of law.

The Council has not established any of its grounds of appeal. The appeal should be dismissed. The usual order for costs in a s 56A appeal should apply, namely that costs follow the event.
The Court orders:

(1) The appeal is dismissed.

(2) The appellant is to pay the respondent's costs of the appeal.

Planning and Assessment Act 1979

Environment Court Act 1979

(2022) 254 LGERA 114

(2016) 218 LGERA 411

(1999) 106 LGERA 298

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