Dravin Pty Ltd v Blacktown City Council

Land and Environment Court (NSW)|2017-03-20|Before: Preston CJ, Mr P, Ms J

A modification of a development consent is refused

On 14 March 1978, Blacktown City Council ('the Council') granted development consent to use land at Burfitt Road, John Street and Mary Street, Schofields, being Lots 1-116, Deposited Plan 1784, for a waste disposal depot, subject to conditions. One of the conditions was condition 2 which provided, so far as is relevant: 2. Compliance with the requirements of the Metropolitan Waste Disposal Authority as set out in that Authority's letter of 17th August to the applicant namely: … 2. The following special conditions: (i) the waste received on the site shall be restricted to solid wastes only including natural excavated material, demolition material, broken concrete and builders rubbish but excluding any other waste of any nature. (ii) the waste received shall be restricted to the waste carried by the applicant in his own vehicles and those vehicles must be licensed to transport waste with this Authority and the depot shall be not open to passing trade or the receipt of any waste from any other source.
The applicant for development consent was described in the consent as "Mr D Hlebar". The applicant referred to by the Metropolitan Waste Disposal Authority in its letter of 17 August 1977 is not certain, as the letter was not in evidence. However, in an application for registration of the proposed depot made to the Metropolitan Waste Disposal Authority on 24 August 1977, the applicants, and the occupiers of the site, were described as Dragutin Hlebar and Vinko Hlebar. In a subsequent application for registration of an existing depot, made on 8 October 1979, Dragutin Hlebar and Vinko Hlebar were described as the applicants and occupiers of the site. In a more recent version of the Environmental Protection Licence issued under the Protection of the Environment Operations Act 1997 authorising the carrying out on the site of the scheduled activities of waste disposal and waste processing, the applicants for the licence and hence the licensees were described as Draga Hlebar and Vinko Hlebar. The statutory licensing regime under the Protection of the Environment Operations Act 1997 administered by the Environment Protection Authority replaced the earlier licensing regime under the Waste Disposal Act 1970 administered by the Metropolitan Waste Authority.

The Commissioner's reasons for refusal

The Commissioner refused the application to modify the development consent because he was not satisfied of the two preconditions in s 96(1A) to modify a development consent, namely that the proposed modification would be of minor environmental impact (s 96(1A)(a)) and that the development to which consent as modified relates would be substantially the same development as the development for which the consent was originally granted and before that consent as originally granted was modified (if at all) (s 96(1A)(b)). The Commissioner noted that a failure to satisfy the Court on either of the two preconditions must see the application refused and the appeal dismissed: at [13].
The Commissioner began with the second precondition in s 96(1A)(b) of the Act as to whether the modified development will be substantially the same as the original development. The Commissioner found that the development to which the consent as modified relates would not be substantially the same development as the development for which the consent was originally granted: at [37] and [41]. In so finding, the Commissioner said he preferred the submissions of counsel for the Council over the submissions of counsel for the applicant for four reasons, some of which were related.
The first two reasons were that the modified consent would allow substantially more truck movements and waste to be received at the waste disposal depot than the original consent allows. In the first reason, the Commissioner accepted the Council's submission that the particular wording of condition 2.2(ii) as originally granted, in effect, imposed a limitation on the volume of waste to be received and the number of associated truck movements by restricting the volume of waste to that which the applicant can carry by "his own vehicles" and prohibiting the applicant from receiving waste from "any other source": at [37]. The modified condition 2.2(ii) would remove this limitation. The Commissioner's first reason was expressed as follows: First, I do not accept that a fair reading of condition 2.2(ii) could result in the meaning suggested by Ms Reid that the only limit on the intensity authorised by the 1978 consent is the natural limits of the capacity of the site to receive waste. These, or similar words are absent from condition 2.2(ii) and cannot be inferred given the specific words that limit waste to "waste received shall be restricted to the waste carried by the Applicant in his own vehicles …" in the condition. I agree with Ms Heger that that condition imposes a limitation on the volume of waste to be received and associated number of truck movements by limiting the volume of waste to that which the applicant can carry by "his own vehicles" and prohibiting the applicant from receiving waste from "any other source". Ms Reid's submission that there are no time limits on the operation of the facility is correct however there is nothing in her submissions and authorities on the interpretation of consents that could be seen to allow unlimited truck movements or waste receival based on the specific terms of original condition 2.2(ii): at [37].
In the second reason, the Commissioner explained the likely difference that the modification of condition 2.2(ii) would effect in practice by comparing the volume of waste that had been received under the applicant's actual operations from 2005 to 2016 with the maximum volume of waste that the modified condition 2.2(ii) would allow on a daily basis. The Commissioner found that the modified condition would allow 56 times more waste to be received than the average daily volume of waste actually received from 2005 to 2016. The Commissioner expressed his second reason as follows: Second, and while no evidence was provided on the amount of waste and truck movements around the time of the 1978 consent (or why condition 2.2(ii) was imposed the way it was) I agree with Ms Heger that it is reasonable, given that the consent is some 38 years old, that the amount of waste and truck movements would likely be much less than that which is proposed under new condition 2.2(ii). In 1978, the site would have been a considerable distance from most sources of waste. It is also likely that in 1978, for efficiency and economics purposes, waste would have been deposited at closer locations to the source of the waste rather than longer trips to the site. In any event, and if the more recent evidence of the applicant's actual operations from 2005 to 2016 is used: an average, of 1600 cu m of waste per six-month period is brought to the site. This needs to be compared to the potential maximum of 500 cu m per day, which is some 56 times the actual average volume of waste from 2005 to 2016. In the absence of any quantities of waste and truck movements around the time of the 1978 consent, I am satisfied it is reasonable to rely on the average volume from 2005 to 2016 given that the 2005 to 2016 figures are likely to be higher than the 1978 figures. As stated in Vacik, the applicant for the modification bears the onus of showing that the modified development is substantially the same as the original development. The applicant provided no evidence to refute the submissions of Ms Heger on the likely waste and truck movements around the time of the 1978 consent based on more recent data: at [38].
The Commissioner's third reason addressed the submission of the applicant that the original development consent, which incorporated the conditions required by the Metropolitan Waste Disposal Authority, needed to be construed having regard to the broader functions that that Authority had compared to the planning functions that the Council had. The Commissioner said: Third, and even though condition 2.2(ii) appears to have been the result of consultation with the Authority whose functions were to ensure the safe and efficient disposal of waste in the waste disposal region rather than the council whose functions addressed those matters in cl 17 of IDO 133 that related to general town planning and engineering functions associated with amenity and road safety impacts: the 1978 consent needs to be read as a whole and not separated into parts on the basis of the source of any conditions on the approval: at [39].
The Commissioner's fourth reason was that the reference in the original condition 2.2(ii) to "the applicant" was a reference to the person who was the applicant for development consent, namely Mr D Hlebar. The limitation in the original condition 2.2(ii) restricted the waste that could be received at the site to the waste that could be carried by that applicant in his own vehicles which had to be licensed to transport waste. The modified condition 2.2(ii) would remove this limitation and allow the waste received at the site to be waste carried by any person in any vehicle and from any source. The Commissioner said: Fourth, I do not accept the submission that if the site were sold to an owner with a fleet of vehicles, the use would continue without constraint in accordance with the terms of the 1978 consent, albeit at a greater intensity than the current operator. Condition 2.2(ii) states, in part, that "The waste received shall be restricted to the waste carried by the Applicant in his own vehicles". The reference to "the Applicant" in the condition must be a reference to the Applicant in the development application that resulted in the 14 March 1978 consent. If the condition referred to the "Owner" then a different conclusion could be reached: at [40].
The Commissioner referred to these four reasons in his conclusion on this precondition: For the reasons in the preceding paragraphs, I am satisfied that the development to which the consent as modified relates is not substantially the same development as the development for which the consent was originally granted. While the wording of the original condition 2.2(ii) would undoubtedly be expressed in different terms today, "a fair but liberal reading of the rights" pertaining to the condition, in my view, imposes a limitation on the volume of waste to be received and associated number of truck movements based on the evidence provided to the Court. New condition 2.2(ii) allows a significantly larger volume of waste to be received and number of truck movements. Consequently, the application must be refused and the appeal dismissed as the application does not satisfy the pre-condition in s 96(1A)(b) of the EPA Act: at [41]-[42].
The Commissioner then turned to the first precondition in s 96(1A)(a) of the Act that the proposed modification must be of minimal environmental impact. The Commissioner found that it was not. The Commissioner said: Having reached the conclusion that the proposed modification to condition 2.2(ii) would allow a significantly larger volume of waste to be received and number of truck movements to the site based on the likely volume of waste received and number of truck movements at the time of the 1978 consent; it follows that the modification is not of minimal environmental impact. Consequently, the application must be refused and the appeal dismissed as the application does not satisfy the pre-condition in s 96(1A)(a) of the EPA Act: at [43]-[44].

The Commissioner's decision is appealed on questions of law

Dravin appealed against the Commissioner's decision under s 56A of the Land and Environment Court Act 1979. An appeal under s 56A is only on a question of law. In its summons concerning the appeal, Dravin raised four grounds of appeal where it said the Commissioner erred on a question of law: 1 The Commissioner erred in his construction of condition 2.2(ii) of the development consent issued by Blacktown Council ('Council') on 14 March 1978 ('the Consent') in holding that the reference to the 'applicant' was a reference to the applicant in the development application that resulted in the Consent. 2 The Commissioner erred in his construction of the Consent by finding that condition 2.2(ii) imposed a limitation on the volume of waste to be received and associated number of truck movements to and from the subject land. 3 The Commissioner erred in finding that the proposed modification of the Consent was not 'substantially the same development' as the Consent, by taking into account irrelevant considerations. Particulars: a The current and historical intensity of use of the land subject of the Consent is irrelevant to the proper construction of the Consent. 4 The Commissioner erred in finding that the proposed modification to condition 2.2(ii) of the Consent is not of minimal environmental impact by taking into account irrelevant considerations. Particulars: a The applicant refers to and repeats the particulars to paragraph 3 above.

Ground 1: the alleged error in construction of "the applicant"

Dravin submitted that the Commissioner erred in finding that the reference to "the applicant" in condition 2.2(ii) was the person who had applied for development consent, Mr D Hlebar. Dravin submitted that instead "the applicant" meant any person who had the authority to act on the consent from time to time. Dravin gave three reasons.
First, Dravin submitted that this meaning is consistent with the nature and enduring function of a development consent. A consent operates in rem. In Ryde Municipal Council v Royal Ryde Homes (1970) 19 LGRA 321 at 324, Else-Mitchell J said that a development consent "is not personal to the applicant but enures for the benefit of subsequent owners and occupiers, and in some respects a consent is equivalent to a document of title". In Eaton and Sons Pty Ltd v Warringah Shire Council (1972) 129 CLR 270 at 293, Stephen J described a consent as: essentially impersonal in the sense that it does not concern itself with and is not limited to the applicant but is a consent to the world at large in relation to the land which is its subject. Once granted it makes lawful, in a town planning context, what would otherwise be unlawful but does so by reference to the acts done and not to the identity of the actor. See also Jonah Pty Ltd v Pittwater Council (2006) 144 LGERA 408; [2006] NSWLEC 99 at [34].
Second, Dravin submitted that it is relevant to note that the original condition 2.2(ii) was not drafted by the Council as a condition per se, but was incorporated into the consent by recitation of a letter from the Metropolitan Waste Disposal Authority dated 17 August 1977. Read in context, when recommending the imposition of what became condition 2.2(ii) that Authority was responding to an "application" and therefore referred to the "applicant" in the condition as one might refer to the "owner" or "operator". Dravin, therefore, submitted that the reference to the applicant should be construed as being a reference to the operator of the waste disposal depot.
Thirdly, Dravin submitted that the narrow construction of the applicant to mean the original applicant for development consent is contrary to the way in which the Council had previously construed the consent. The Council had taken "applicant" to mean "operator" and had even construed the reference to "his vehicles" as being those vehicles contracted to or leased by the operator of the waste disposal depot. Dravin referred to various correspondence between the Council and the operator of the waste disposal depot or its consultants in which the Council had adopted this construction.
The Council accepted the general principle that a development consent is "essentially impersonal in the sense that it does not concern itself with and is not limited to the applicant but is a consent to the world at large in relation to the land to which it is subject": Eaton and Sons Pty Ltd v Warringah Shire Council at 293. But that general principle regarding the interpretation and effect of consents must operate subject to the express language of the consent. The express language of condition 2.2(ii) limited the waste received to the waste carried by the applicant for development consent in his own vehicles. The Council submitted: It is true that a consent is "essentially impersonal in the sense that it does not concern itself with and is not limited to the applicant but is a consent to the world at large in relation to the land which it is subject": Eaton and Sons Pty Ltd v Warringah Shire Council (1972) 129 CLR 270 at 293. But that is a general principle regarding the interpretation and effect of consents. It must operate subject to the express language of the consent. It cannot be doubted that a development consent is capable of validly imposing conditions which are personal to the applicant for the consent. So, for example, if a consent imposed a condition that waste may only be transported "in vehicles owned by Dravin Pty Ltd", it could not be doubted that the operator of the waste depot (even a subsequent purchaser of the relevant land, such as Dial-a-Dump) could only transport waste in vehicles owned by Dravin Pty Ltd. The imposition of such a condition may not be best practice. It may mean that, if a subsequent party were to buy the land, it would need to apply for a new consent or a modification to the existing consent. But it would still be a valid condition. For those reasons, the mere recitation of the in rem principle does not determine the meaning of the word "applicant" in condition 2.2(ii). The Court must engage, as Commissioner Brown did, in a process of construction of the text of the consent read in context. The word "applicant", in its ordinary meaning, means "a person who applies for some assistance or benefit": OED Online. Here, it clearly refers to the person who made the application for the development which is the subject of the consent, namely the Appellant. That is confirmed by the words appearing at the bottom of the consent: "Name of Applicant: Mr D. Hlebar". Obviously, any subsequent purchaser of the land would not be the "applicant" for the consent, for it would not be the person who "applied" for the consent in 1978. This construction is supported by the chapeau to Condition 2, which refers to the "Authority's letter of 17th August to the applicant" (AB 94). That language suggests that the condition was being imposed by reference to the identity of the applicant for the consent, namely Dravin Pty Ltd, as opposed to any party who subsequently came to own the land. The drafter of the Consent chose not to refer to the "operator" of the depot or "owner" of the land - both terms which are capable of applying to any subsequent purchaser of the land.
The Council also made an alternative submission that, even if the Commissioner did err in his construction of the word "applicant", that error was immaterial to the Commissioner's decision. This construction was given as part of the Commissioner's fourth reason for finding that the development as modified was not substantially the same development as the development for which consent was originally granted. At the heart of the Commissioner's four reasons was the finding that the modified condition 2.2(ii) would allow substantially more waste to be received (56 times more) and associated truck movements than allowed under the original condition 2.2(ii). This was because the modified condition removes the limitation that the waste received be restricted to the waste carried by the applicant in his own vehicles and not be from any other source and instead allows waste to be carried by any person in any vehicles and from any source up to the maximum of 500m³ of waste per day.
The restriction on the waste received imposed by the original condition 2.2(ii) applies regardless of whether the word "applicant" is construed to mean the applicant for development consent or instead the "operator of the depot" or "any other person entitled to act on the consent". In each case, there is a practical limitation on the volume of waste that can be received imposed by the restriction that the waste be carried by that person in that person's own vehicles and not be from any other source. The modified condition 2.2(ii) would remove this limitation. Hence, regardless of how the Commissioner construed the word "applicant", his finding that the modified condition would result in substantially more waste being received and associated truck movements than is allowed under the original condition is still sustainable.
The Council further submitted that the Commissioner's construction of the word "applicant" was the fourth reason that he had given for finding that the modified development was not substantially the same as the original development. The other three reasons given by the Commissioner did not depend on the Commissioner's fourth reason. Those three reasons are sufficient by themselves to sustain the Commissioner's finding that the modified development was not substantially the same as the original development. Hence, any error in the Commissioner's construction of the word "applicant" was immaterial and does not vitiate the decision. A decision of a Commissioner is only vitiated if the error on a question of law materially affects the decision made: Design Power Associates Pty Ltd v Willoughby City Council (2006) 148 LGERA 233; [2005] NSWLEC 470 at [34]; Sydney Water Corporation v Caruso (2009) 170 LGERA 298; [2009] NSWCA 391 at [133]-[136]; Hurstville City Council v Goreski [2011] NSWLEC 188 at [53]-[56].
I find that the Commissioner did not err in law in construing the word "applicant" in condition 2.2(ii). I agree with and adopt the Council's submissions. Condition 2.2(ii) of the consent as originally granted did limit the waste that could be received at the waste disposal depot to waste that could be carried by the applicant for development consent in his own vehicles. As both Dravin and the Council submitted, the general principle is that a development consent regulates the use of land and not the identity of the user and that it runs with the land so that subsequent owners and occupiers are able to enjoy the benefit of the consent by using the land in accordance with the consent. But as the Council submitted, that general principle must give way to the specific terms of the consent. A consent can lawfully impose restrictions related to the identity of the user. In this case, it was lawful to restrict the waste that could be received at the waste disposal depot by reference to the identity of the person who carried the waste to the depot and the vehicles of that person. On a proper construction of the consent, condition 2.2(ii) imposes such a restriction.
First, the wording of condition 2.2(ii) expressly limits the waste that can be received at the depot to a class of waste, which is "waste carried by the applicant in his own vehicles". This is a deliberate limitation on the waste that can be received by reference to the identity of the person who carries the waste to the depot.
Second, the limitation by reference to the identity of the person is corroborated by the requirement that that person, the applicant, carry the waste in "his vehicles". The applicant for development consent was a man, Mr D Hlebar. The condition recognised the identity of this applicant by using the possessive pronoun "his". The limitation is that this applicant must carry the waste in his vehicles.
Third, the vehicles of this applicant must be licensed to transport waste. The transport of waste is a scheduled, non-premises based activity which requires a licence. A licence to transport waste is personal to the person who carries out the scheduled activity of transporting waste and cannot operate in rem. This emphasises that the limitation operates by reference to the identity of the person undertaking the transportation of waste.
Fourth, there is a distinction between the use of land for the purpose of a waste disposal depot and the activity of transporting waste to that land. A development consent attaches to the land on which the use for the purpose of waste disposal depot permitted by the consent is carried out. It enures for the benefit of future owners and occupiers of the land so as to permit those persons to use the land for that purpose. However, the consent does not attach to other land that is not the subject of the consent. Hence, this development consent permitting use of the land for the purpose of a waste disposal depot only attaches to the land on which the waste disposal depot is carried out. It does not apply or attach to the places that are the sources of the waste that is transported to the depot or the roads leading to the depot over which waste received at the depot is transported.
Condition 2.2(ii) does not directly regulate the use of the land for the purpose of the waste disposal depot. Rather, the condition regulates the activity of transporting waste to the land on which the waste disposal depot is carried out. This may indirectly affect the use of the land for the waste disposal depot by restricting the waste that can be received at the depot. Nevertheless, this is not a condition regulating the use of the land as such.
The consequence of this distinction is that the general principle that a development consent is impersonal in the sense that it is not limited to the applicant, attaches to the land, and enures for the benefit of subsequent owners and occupiers of the land can still apply so as to permit subsequent owners and operators to carry out the use of the land for the purpose of a waste disposal depot permitted by the consent. But that does not mean that the condition regulating the activity of transporting waste to the land is also subject to this general principle, so that the reference to the applicant and his vehicles in the condition can include any future owner or occupier of the land and their vehicles. Rather, the condition remains personal in the sense that it is limited in operation to the person identified, the applicant for development consent, and continues to restrict the waste that can be received at the waste disposal depot on the land to waste carried by that person in his vehicles.
The result is that subsequent owners and occupiers may enjoy the benefit that the consent gives of being able to carry out the waste disposal depot on the land, but they must do so in accordance with the conditions of the consent, including condition 2.2(ii) which restricts the waste that can be received at the depot to waste carried by the original applicant for consent in his vehicles.
The proper construction of condition 2.2(ii) is not affected by how the Council might have interpreted or applied the condition. Hence, it is legally irrelevant that the Council might have, over the years, taken the view that waste could be transported to the land by the operator of the waste disposal depot and in vehicles contracted to or leased by that operator. The Council's conduct cannot alter the proper meaning of condition 2.2(ii).
I also agree with the Council's submission that if, contrary to what I consider to be the proper construction of condition 2.2(ii), the phrase "applicant in his vehicles" does extend to include subsequent owners and occupiers transporting waste in their vehicles, any such error did not materially affect the Commissioner's decision. I agree with and adopt the two reasons given by the Council set out above as to why any such error did not vitiate the Commissioner's decision.
I reject ground 1.

Ground 2: the alleged error in construing the condition as limiting the waste received

Dravin submitted that the Commissioner erred in his construction of condition 2.2(ii) by finding that it imposed a limitation on the volume of waste to be received and the number of associated truck movements. Dravin submitted that the condition did not, in express terms, impose any limitation on the volume of waste that could be received or on the number of associated truck movements to transport that waste. The applicant could bring as much waste and in as many trucks as it owned or operated. The Commissioner erroneously read into condition 2.2(ii) a limitation that was not expressly stated.
The Council contested Dravin's submission that the condition did not contain a limitation. To the contrary, the Council submitted, condition 2.2(ii) did impose a limitation on the volume of waste that could be received and the number of associated truck movements by restricting the waste received to the waste carried by the applicant in his vehicles, requiring those vehicles to be licensed to transport the waste and prohibiting the applicant from receiving waste from any other source. These four restrictions - first, that the only person who can transport waste to the land is the applicant, second, that the applicant can only transport waste to the land in his vehicles, third, that those vehicles must be licensed to transport waste and fourth, that the applicant cannot receive waste from any other source - will have the effect of reducing the volume of waste received and the number of associated truck movements compared to the volume of waste that could be received and the number of associated truck movements that would occur if any person could transport waste in any vehicle, whether licensed or not to transport waste, and waste could be received from any source. The Council submitted, therefore, that the Commissioner was correct in construing condition 2.2(ii) as imposing a limitation on the volume of waste received and the associated number of truck movements.
I agree with and adopt the Council's submissions. It is plain from the words of condition 2.2(ii) that it operates to restrict the volume of waste that can be received and the number of associated truck movements. Restricting the number of persons who can transport waste to the land to only one, "the applicant", and the number of trucks that person can use to transport waste to the land to only "his vehicles" and those that are "licensed to transport waste", and prohibiting the applicant from receiving waste from any other source, evidently will reduce the volume of waste that will be received at the land and the number of associated truck movements compared to the situation where there are no restrictions on the person who can transport waste or the trucks in which the person can transport waste to the land or the source from which waste can be received.
I reject ground 2.

Ground 3: the alleged error in considering irrelevant matter of current and historical intensity of use

The third ground of appeal focuses on the Commissioner's second reason for finding that the development which would be permitted by the modified condition 2.2(ii) was not substantially the same development as the development permitted by the original condition 2.2(ii). In this second reason, the Commissioner compared the volume of waste that actually had been received at the waste disposal depot in the past (assuming that this was done in accordance with the original condition 2.2(ii)) with the maximum volume of waste that would be permitted to be received under the modified condition 2.2(ii). The Commissioner found that the latter would be some 56 times greater than the former on an average daily basis.
Dravin submitted that the Commissioner erred in comparing the historical use of the land to the use of the land that the consent as modified would permit. Dravin submitted that the historical use of the land was an irrelevant matter. The relevant comparison was the volume of waste that was permitted to be received under the terms of the consent as originally granted compared to the volume of waste that would be permitted to be received under the terms of the consent as modified.
Dravin reiterated its submission that it made on ground 2 that the consent as originally granted did not impose any limitation on the volume of waste that could be received at the depot. Hence, contrary to the Commissioner's findings, the consent as originally granted did not restrict the volume of waste that could be received to be less than the volume of waste that could be received by the consent as modified and hence the development permitted by the consent as originally granted was not substantially different to the development permitted by the consent as modified.
The Council rebutted Dravin's submissions. First, Dravin's argument on ground 3 was dependent on Dravin's construction of the original condition 2.2(ii) contended for in ground 2 that the condition did not impose any limitation on the volume of waste that could be received at the depot. This construction was incorrect, for the reasons that the Council gave in relation to ground 2. Condition 2.2(ii) had the effect of imposing a limitation on the volume of waste received by restricting the waste to the waste that could be carried by the applicant in his own vehicles, which had to be licensed to transport waste, and from no other source.
Second, once it is accepted that the original condition 2.2(ii) did impose a limitation on the waste that could be received at the depot, it was legitimate, in order to understand what in practice that limitation might involve, to look to the volume of waste that actually had been received at the depot in the past. As the Commissioner found in [40], there was no evidence of the volume of waste and truck movements around the time of the 1978 consent, but there was evidence of the volume of waste that had been received during the applicant's actual operations from 2005 to 2016. The Commissioner looked to that evidence to understand the volume of waste that the original condition 2.2(ii) might permit. This figure could then be compared to the volume of waste that would be permitted under the modified condition 2.2(ii) in order to ascertain the difference in the volumes of waste permitted to be received by the original condition 2.2(ii) compared to the modified condition 2.2(ii). This fact finding approach was legitimate in order to assist the Commissioner to determine whether he was satisfied that the precondition in s 96(1A)(b) of the Act was met.
As the Commissioner correctly noted in [36], Dravin, as the applicant for the modification, bore the onus of showing that the modified development was substantially the same as the original development. The Council tendered evidence of the actual volumes of waste received (presumably in accordance with the consent as originally granted) to establish that it was substantially less than the volume of waste that could be received under the consent as modified, and hence that the development as modified would not be substantially the same development as the development for which consent was originally granted. As the Commissioner noted in [38], Dravin provided no evidence to refute the Council's evidence and submissions that the development to which the consent as modified related was not substantially the same as the development for which the consent was originally granted. Dravin cannot, on an appeal limited to questions of law, challenge the Commissioner's factual findings about the historical use of the land. These factual findings were the basis of the Commissioner's factual conclusion that the development permitted by the consent as modified was not substantially the same as the development for which consent was originally granted.
Third, the Council submitted that the historical use of the land under the consent as originally granted was not a legally irrelevant matter, in the sense that the taking into account of that consideration was prohibited by the statutory scheme: Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 24, 39-40. There are no features of s 96(1A) of the Act or the Act generally to demonstrate that historical use of land was a prohibited consideration for the purposes of s 96(1A)(b) of the Act.
To the contrary, the Council submitted, the assessment required under s 96(1A)(b) can involve a comparison of the development permitted under the consent as originally granted with the development permitted under the consent as modified. The comparative assessment under s 96(1A)(b) is not to be conducted in "some type of sterile vacuum": Moto Projects (No 2) Pty Ltd v North Sydney Council (1999) 106 LGERA 298; [1999] NSWLEC 280 at [56]. It does not involve a bare comparison of the terms of the original consent with the terms of the consent as modified. "Rather, the comparison involves an appreciation, qualitative, as well as quantitative, of the developments being compared in their proper contexts (including the circumstances in which the development consent was granted)": Moto Projects (No 2) Pty Ltd v North Sydney Council at [56]. "In assessing whether the consent as modified will be substantially the same development one needs to compare the before and after situations": Vacik Pty Ltd v Penrith City Council [1992] NSWLEC 8 at p.4. The Court can have regard to the practical implications of the proposed modifications, including the "environmental impacts of proposed modifications to approved developments": Moto Projects (No 2) Pty Ltd v North Sydney Council at [62].
The Council submitted that the Commissioner's approach reflected these principles. As the Commissioner noted in [34], Dravin received an average of 1600m³ per six month period during 2005 to 2016. Under the modified condition 2.2(ii), Dravin could receive up to 500m³ per day, equating to about 90,000m³ per six month period, which would be 56 times greater than the current volume of waste received. The Commissioner found: That amount is a dramatic increase in the volume of waste received, which would accordingly have a dramatic increase on the number of truck movements. It involves an intensity of use that was neither approved nor anticipated at the time the 1978 consent was granted. As Mr Hardy stated [in the joint expert report], the proposed modification would 'change the scope and nature of on-site operations from a small scaled low-key private facility to a large commercial scaled waste management operation': at [34].
I find that the Commissioner did not err in law in considering the volume of waste that had been received at the depot and the associated truck movements that had occurred in the past, for the reasons given by the Council in its submissions.
The consent as originally granted did impose a limitation on the volume of waste that could be received, and the associated truck movements, by restricting the waste to that which could be carried by the applicant in his own vehicles that were licensed to transport waste and to not be from any other source. To gain an appreciation of what that limitation involved, it was legitimate for the Commissioner to assess the development that had been carried out, making the assumption in Dravin's favour that the development had been carried out in accordance with the consent as originally granted. The Council tendered evidence of the volume of waste that had actually been received during the period 2005-2016. Dravin did not provide any evidence to refute that evidence. The Commissioner used that evidence to gain an appreciation, quantitative and qualitative, of the development that had been approved by the original consent. He next assessed the development permitted by, and in particular the volume of waste that could be received under, the consent as modified. He found that the volume of waste permitted under the consent as modified would be some 56 times greater than the volume of waste that had actually been received in carrying out the development presumably in accordance with the consent as originally granted. This comparative assessment of the development as originally approved and as modified was open to the Commissioner in undertaking the task required by s 96(1A)(b) of the Act. It did not involve consideration of a legally irrelevant matter.
I reject ground 3.

Ground 4: the alleged error in finding that the modification was not of minimal environmental impact

Dravin submitted that the Commissioner's finding that the proposed modification was not of minimal environmental impact was affected by the same errors of law that Dravin alleged affected the Commissioner's finding that the development as modified was not substantially the same as the development originally approved. The Commissioner found that the development was not of minimal environmental impact because he found that the volume of waste received on the land and the number of associated truck movements would significantly increase as a result of the modification. Dravin submitted, however, that the Commissioner erred in so finding on the three grounds it had previously argued.
The Council rejected Dravin's submission on ground 4 for the reasons it gave in relation to the other three grounds. The Council added that it is absurd to contend that s 96(1A)(a), which expressly refers to the "impact" of the modification, prohibits the Court from considering the practical impacts of the development as originally approved as compared to the development permitted by the consent as modified.
I find that Dravin has not established that the Commissioner erred in law in finding that the proposed modification was not of minimal environmental impact. As particularised, this ground of appeal was dependent upon establishing that the Commissioner erred on a question of law in the ways alleged in ground three. For the reasons I have given earlier, I find that Dravin has not established this ground.
Furthermore, the task required by s 96(1A)(a) demands a comparative assessment of the environmental impacts of the development as originally approved and the development as modified. As with the task required by s 96(1A)(b), this comparative assessment required by s 96(1A)(a) is not to be done in a "sterile vacuum" by comparing the bare terms of the consent as originally granted and the consent as modified, but rather is to involve an appreciation, qualitative as well as quantitative, of the developments and the environmental impacts of those developments.
In the case of the development as originally granted, the most reliable evidence to evaluate the development as originally approved and its environmental impacts will usually be the actual development that has been carried out in accordance with the original consent. In this case, this was the evidence of the volume of waste that had been received at the depot during the period 2005 to 2016. The Commissioner did not err in law in considering this evidence and using it as a basis for his factual finding that the proposed modification to condition 2.2(ii) would allow a significantly larger volume of waste to be received and accordingly a significantly larger number of truck movements to the site than the consent as originally granted permitted. The Commissioner found that it followed from this significant increase in the volume of waste and number of truck movements that the modification was not of minimal environmental impact. No error of law is involved in that conclusion.
I reject ground 4.

Conclusion and orders

Dravin has not established any of the four grounds of appeal. The appeal should be dismissed.
The usual order for costs in a s 56A appeal from the decision of a Commissioner is that they follow the event: see s 98 of the Civil Procedure Act 2005 and r 42.1 and Sch 1 of the Uniform Civil Procedure Rules 2005. There are no circumstances justifying departure from the usual order. Accordingly, Dravin should be ordered to pay the Council's costs of the appeal.
The orders of the Court are: 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: 05 April 2017

(2006) 148 LGERA 233

(2006) 144 LGERA 408

(1999) 106 LGERA 298

(2009) 170 LGERA 298

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