Feldkirchen Pty Ltd v Development Implementation Pty Ltd

Court of Appeal (NSW)|2022-09-16|Before: Macfarlan JA, Meagher JA, Preston CJ, Mr J, Robson J

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

HEADNOTE [This headnote is not to be read as part of the judgment] Feldkirchen Pty Ltd (Appellant) appealed to the Court under s 58 of the Land and Environment Court Act 1979 (NSW) against the dismissal of judicial review proceedings it brought in the Land and Environment Court challenging the decision of Wingecarribee Shire Council (Council) to modify a development consent for a subdivision of land to be carried out by Development Implementation Pty Ltd. The Appellant argued that the Council erred in law in two ways in approving the modification application. First, by failing to consider the reasons given by the Council for the grant of the consent that was sought to be modified, as required by s 4.55(3) of the Environmental Planning and Assessment Act 1979 (EPA Act) (Ground 1). Second, by failing to form the opinion of satisfaction that the development to which the consent as modified relates is substantially the same development as the development for which consent was granted, as required by s 4.55(2)(a) of the EPA Act (Ground 2). Held, per Preston CJ of LEC at [8], [117]; and Macfarlan JA and Meagher JA agreeing at [1] and [2] respectively, dismissing the appeal with costs: In relation to Ground 1 (1) The primary judge was correct in finding that no reasons were given by the Council for the grant of the consent that was sought to be modified. None of the three documents advanced by the Appellant as containing the Council's reasons recorded any reasons given by the Council for the grant of the consent. In circumstances where the Council as the consent authority did not give reasons for the grant of the consent, it cannot be in breach of the obligation in s 4.55(3): [63]-[77] (Preston CJ of LEC). In relation to Ground 2 (2) The primary judge did not err in finding that the Appellant had not discharged its onus of proving, on the balance of probabilities, that the Council did not form the necessary opinion of satisfaction under s 4.55(2)(a) before approving the modification application. Whilst explicit reference was not made in the modification assessment report considered by the Council or in the debate at the Council meeting to the terms of the precondition in s 4.55(2)(a), there were other indicators that the Council addressed the precondition in s 4.55(2)(a): [104]-[115] (Preston CJ of LEC). (3) The power to modify a consent in s 4.55(2) and the precondition in s 4.55(2)(a) are long established and commonly invoked by consent authorities. An inference would not readily be drawn that the Council was not aware of the need to fulfill the precondition in s 4.55(2)(a) before it could exercise the power under s 4.55(2) to approve the application to modify the consent: [110] (Preston CJ of LEC). (4) The absence of reference to the "material and essential features" of the two developments in the modification assessment report or the debate at the Council meeting did not indicate that the Council did not undertake the comparison required by s 4.55(2)(a). As long as the Council addressed the substance of the question raised by s 4.55(2)(a), it did not have to refer to its precise terms or the ways in which courts have suggested that question might be addressed: [113] (Preston CJ of LEC). Moto Projects (No 2) Pty Ltd v North Sydney Council (1999) 106 LGERA 298; [1999] NSWLEC 280; Scrap Realty Pty Ltd v Botany Bay City Council (2008) 166 LGERA 342; [2008] NSWLEC 333; Arrange v Inner West Council [2019] NSWLEC 85, considered.

Judgment

MACFARLAN JA: I agree with Preston CJ of LEC.
MEAGHER JA: I agree with the reasons and proposed orders of Preston CJ of LEC.
PRESTON CJ of LEC:

Nature of appeal and outcome

Feldkirchen Pty Ltd (Feldkirchen) appealed against the dismissal of judicial review proceedings it had brought in the Land and Environment Court challenging the decision of Wingecarribee Shire Council (the Council) to modify a development consent for a subdivision of land fronting Old Hume Highway, Mittagong (the Garden World site) to be carried out by Development Implementation Pty Ltd (Development Implementation).
The Council approved the modification application under s 4.55(2) of the Environmental Planning and Assessment Act 1979 (EPA Act). Feldkirchen argued that the Council had erred in law in two ways in approving the modification application.
First, s 4.55(3) of the EPA Act, requires a consent authority, in determining an application to modify a development consent, to take into consideration the reasons given by the consent authority for the grant of the consent that is sought to be modified. The primary judge found that, as a matter of fact, the Council had not given reasons for the grant of the development consent that Development Implementation sought to modify, so that there were no reasons for the Council to consider in determining the application to modify the consent. Feldkirchen appealed against this finding.
Secondly, s 4.55(2)(a) of the EPA Act provides that the consent authority may modify a development consent "if it is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted and before that consent as originally granted was modified (if at all)". Feldkirchen argued that the Council did not turn its mind to this jurisdictional precondition and form the required opinion of satisfaction. The primary judge found that Feldkirchen had not discharged the onus on it as challenger to prove that the Council did not form the required opinion of satisfaction under s 4.55(2)(a). Feldkirchen appealed against this finding.
I find that Feldkirchen has not established that the primary judge erred in either of the ways raised on this appeal. The appeal should be dismissed with costs.

The modification application and the Council's approval of it

Feldkirchen owns and has development consent to subdivide land adjoining the Garden World site, known as Nattai Ponds. The subdivision of Nattai Ponds and the subdivision of the Garden World site were originally master planned together to ensure that the subdivisions would integrate with each other to create one residential development. The two subdivisions have, however, proceeded at different speeds.
Development for the subdivision of Nattai Ponds was granted first on 28 March 2013. The Nattai Ponds consent contemplated shared access arrangements for traffic from the residential developments on both the Nattai Ponds and the Garden World sites. Specifically, the egress from both sites would be by a new arterial road, known as Isedale Road, which would have traffic signals at the intersection with Old Hume Highway.
Feldkirchen constructed the section of Isedale Road from Old Hume Highway up to the western side of a riparian corridor on Nattai Rivulet. This section of Isedale Road is a main arterial road, 19m in width. Feldkirchen constructed this section of Isedale Road as part of carrying out the first three stages of the Nattai Ponds subdivision. Also as part of carrying out these stages, Feldkirchen constructed a narrower road of 5m width, named Lomandra Lane. This road ran from its intersection with Isedale Road in the south along the western edge of the riparian corridor along Nattai Rivulet until it met the boundary in the north with the Garden World site.
Stage 4 of the Nattai Ponds subdivision, which has not yet been undertaken, will be on the eastern side of Nattai Rivulet and will extend to the Great Southern Railway line further to the east and to the boundary with the Garden World site to the north. As part of Stage 4, Isedale Road is proposed to be extended from its current end point, firstly in an easterly direction across a new bridge over Nattai Rivulet until it meets the railway corridor and then running in a north-easterly direction along the western boundary of the railway corridor until it reaches the boundary with the Garden World site.
Development consent for the subdivision of the Garden World site into 131 lots was granted on 1 July 2019 (consent DA11/0767). 129 lots were to be residential lots and the triangular-shaped part of the site on the western side of Nattai Rivulet was to be subdivided into two lots with Braemar Garden World in one lot and Kamilaroi House in the other lot.
The consent approved ingress to the Garden World subdivision off Old Hume Highway along a road between the Braemar Garden World lot and the Kamilaroi House lot. Southbound traffic on Old Hume Highway could turn left into this road to access the Garden World subdivision. Traffic could egress the Garden World subdivision by this road, but only to turn left to travel south on Old Hume Highway, not to turn right to travel north on Old Hume Highway. Traffic from the Garden World subdivision wishing to travel north on Old Hume Highway would need to egress the Garden World subdivision by the proposed extension of Isedale Road through Stage 4 of the Nattai Ponds subdivision and then turn right at the signalised intersection of Isedale Road with Old Hume Highway.
To this end, the development consent for the Garden World subdivision was subject to a number of conditions requiring the construction of the extension of Isedale Road. A deferred commencement condition required Development Implementation to make arrangements with Feldkirchen for access over the extension of Isedale Road (including any necessary bridge) in Stage 4 of the Nattai Ponds subdivision. Deferred commencement condition 1 provided: "That legally enforceable arrangements are in place between the owner(s) of Lot 1 DP1232714 ('the Site') and the owner(s) of that part of Isedale Road and Lot 355 DP1228384 which will form the rear northern and western extension of Isedale Road (including any necessary bridge) ('the adjoining land'), which arrangements must provide for an authorise full and permanent access, (including vehicular and pedestrian) over the adjoining land, for all current and future owners of the Site (including future owners of any subdivided parts of the Site)."
Condition 62 of the consent required: "Prior to the release of the first subdivision certificate for any residential Lot in the development that part of Isedale Road referred to in the deferred commencement condition must be constructed to the Council's satisfaction and dedicated as a road to the council."
A reason was given for the imposition of condition 62, being "To ensure access to the Development Site."
Other conditions specified details about the construction of the roads and footpaths, such as conditions 77, 82 and 92 of the consent.
On 20 December 2019, the Council granted a further development consent, consent (DA20/0340), subdividing the triangular-shaped land to the west of Nattai Rivulet into three lots, providing for a "new realigned dedicated public road" adjoining Kamilaroi House, and providing for a small extension of Lomandra Lane from the Nattai Ponds subdivision to connect with the new road adjoining Kamilaroi House. This consent was referred to as the three lot subdivision consent.
Although not expressly required by any condition of either development consent for the subdivision of the Garden World site, the Council, as the relevant roads authority, proposed to limit traffic on Lomandra Lane to be one-way northbound, allowing traffic to travel from the Nattai Ponds subdivision to the Garden World subdivision, but not the other way. Southbound traffic from the Garden World subdivision to the Nattai Ponds subdivision would need to travel on the extension of Isedale Road once it was constructed through Stage 4 of the Nattai Ponds subdivision to reach Old Hume Highway.
For various reasons, including that Development Implementation was not able to make satisfactory arrangements with Feldkirchen for access over Stage 4 of the Nattai Ponds subdivision in order to construct the extension of Isedale Road and Feldkirchen delaying in carrying out Stage 4 of the subdivision, Development Implementation applied on 13 January 2020 to the Council to modify development consent DA11/0767 for the subdivision of the Garden World site. The application sought approval to modify the consent by: "1. Deleting deferred commencement conditions 1, 2, 3, 4 and 5 in Schedule 1 of the Consent; 2. Changing the traffic flow of Lomandra Lane from northbound to southbound; 3. Amending Conditions 18, 62, 66, 77, 82 and 92 of the Consent; 4. Amending relevant sewer conditions in light to reflect [sic] submission of the sewer impact report." (Statement of Environmental Effects, p 10).
The effect of the proposed modifications would be to no longer require Development Implementation to make access arrangements concerning, and to construct, the extension of Isedale Road in Stage 4 of the Nattai Ponds subdivision prior to the release of subdivision certificates for residential lots in the Garden World subdivision. Instead, the construction of the northern extension of Lomandra Lane in the Garden World subdivision (approved by the three lot subdivision consent) and the change of traffic direction along Lomandra Lane from northbound to southbound, would provide an alternative access solution for traffic wishing to exit the Garden World subdivision by using Lomandra Lane and turning right onto Old Hume Highway at the Isedale Road signalised intersection.
The modification application was accompanied by a Statement of Environmental Effects dated 10 January 2020. That statement noted that the application was made under s 4.55(2) of the EPA Act. This subsection empowers the consent authority to modify a development consent if the consent authority "is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted and before that consent as originally granted was modified (if at all)" (s 4.55(2)(a)). To this end, the Statement of Environmental Effects included a section, section 5, evaluating this requirement that the modified development be substantially the same development as the development originally approved.
The Statement of Environmental Effects stated that the only real change to the development consent was in relation to deferred commencement condition 1, which required access from the Garden World subdivision to be by the extension of Isedale Road on the adjoining Nattai Ponds subdivision and the signalised intersection of Isedale Road and Old Hume Highway. The Statement of Environmental Effects noted: "The modification application seeks to make a change to this access arrangement to enable an additional access point to Isedale Road via Lomandra Lane (on the adjoining land). This will involve completing the construction of the last northern part of Lomandra Lane and then changing the traffic flow of Lomandra Lane from northbound to southbound from the subdivision providing access to the already completed eastern part of Isedale Road. Access via the full length of Isedale Road will be provided to the subdivision when the western part of Isedale Road is completed by the developer of the adjoining land." (p 14).
The Statement of Environmental Effects stated that this change in access arrangements would not result in any real change in environmental impacts: "Further, there is no real change to the environmental impacts from the approved development as compared to the modified development. The only change in impact is from Lomandra Lane changing from a one way northbound road to a one way southbound road. These impacts are minimal (see discussion by traffic engineer)." (p 14).
The reference to the discussion by the traffic engineer is a reference to the report entitled "Traffic and Parking Impact Assessment for Residential Subdivision of Proposed Lot 3, 61 Old Hume Highway, Mittagong" dated 7 January 2020 by McLaren Traffic Engineering, which accompanied the Statement of Environmental Effects. This traffic assessment report assessed the impacts of changing the flow of traffic from northbound to southbound along Lomandra Lane. The Statement of Environmental Effects summarised the traffic impact assessment (in section 4.2): "The proposed 129 Lot Residential Subdivision at 61 Old Hume Highway, Mittagong is fully supportable in terms of its traffic, road safety and parking impacts. The following comments summarise their traffic impact assessment: - The proposed subdivision (proposed Lot 3) is expected to generate 92 vehicle trips (18 in; 74 out) in the AM peak hour period, and 101 vehicle trips (81 in; 20 out) in the PM peak hourly period. - The development traffic has been found to have no adverse traffic impacts to the assessed intersections in either the future scenario or 10-Year growth scenario. - Lomandra Lane is expected to generate 28 (26+2) vehicle trips in the AM peak hour period and 167 vehicles per day. - The estimated 28 peak vehicle trips and 182 (167+15) daily trips is well below the maximum traffic volume range of 300-1000 vehicles per day based upon AMCORD requirements and is well below the environmental capacity of 200 to 300 peak hour vehicle trips as outlined within Table 4.6 of The RMS Guide to Traffic Generating Developments for Local Roads. - Traffic flow levels within Lomandra Lane under the proposed access arrangements are unlikely to be sustained in the future once the Stage 4 of the adjoining Nattai Ponds development is completed as lots closer to the eastern end of the subject residential development are more likely to use the extension of Isedale Road up to the development site." (p 13).
The Statement of Environmental Effects stated that these traffic impacts were "minimal" (in section 5, p 14). The Statement of Environmental Effects concluded: "It is clear that the modified development will be substantially the same development as originally approved. The changes easily satisfy the test of not changing the 'essence' of the approved development and the modified development being essentially or materially the same as the originally approved development." (p 14).
The Council considered and determined the application to modify the consent at its meeting on 27 May 2020. The agenda for the meeting attached the report of the Deputy General Manager Corporate Strategy and Development Services (the modification assessment report). That report identified that the application to modify the consent was made, and could be approved by the Council, under s 4.55(2) of the EPA Act.
The modification assessment report noted that the development consent sought to be modified, consent DA11/0767, approving the Garden World subdivision had required access to Old Hume Highway to be by the proposed extension of Isedale Road through Stage 4 of the Nattai Ponds subdivision and into the Garden World subdivision. The modification assessment report noted that the grant of the three lot subdivision consent, consent DA20/0340, and advice from Transport for NSW, the roads authority for Old Hume Highway, indicated that alternative access arrangements, using Lomandra Lane, would be beneficial. The modification assessment report noted: "In granting Development Consent DA20/0340 TfNSW (formerly RMS) suggested the following access arrangements for the Garden World subdivision: a) the connection of a new dedicated public road from the Old Hume Highway into the proposed residential allotments section of the consent (Refer Figures 3 & 4). b) 'in principle' agreement to change the traffic direction in Lomandra Lane from the new road to be one way southbound giving access from the residential lots along the new road and left into Lomandra Lane to access Isedale Road traffic lights at the Old Hume Highway. c) Access from the residential lots along the new road to the Old Hume Highway where there will be left turn onto Old Hume Highway to travel south; left turn in from Old Hume Highway when travelling south and right turn in from Old Hume Highway when travelling north - however, consistent with the Consent there will be no right turn out of the new entry road onto Old Hume Highway permitted once the residential lots are developed. Furthermore, when Stage 4 of Nattai Ponds subdivision is developed and Isedale Road is constructed to the interface of Garden World subdivision then all the traffic from Garden World that are to turn right onto the Old Hume Highway can use Isedale Road as was originally planned in the master plan and Lomandra Lane can revert to a north bound traffic flow." (p 6).
The modification assessment report continued: "During recent discussions with TfNSW, it was indicated that the imminent construction of the northern part of Lomandra Lane (under DA20/0340, approved by Council on 20 December 2019) would be beneficial in supporting vehicles exiting the residential lots to use Lomandra Lane to then access Isedale Road and turn right onto the Old Hume Highway via the signalised intersection. The implications of this is that the completion of Isedale Road through the unformed section of Stage 4 of Nattai Ponds would not be required in the immediate future. Figure 6 below details the proposed alternative change of traffic along Lomandra Lane. Lomandra Lane traffic flow would change from northbound to southbound." (p 8).
The modification assessment report referred to the traffic assessment report submitted with the Statement of Environmental Effects and reproduced (at pp 9-10) the summary of the traffic impact assessment that was given in the Statement of Environmental Effects (quoted above).
The modification assessment report responded to public submissions on the proposed modification of the development consent. In relation to the submission that additional traffic movements will increase safety issues, the modification assessment report stated: "The Nattai Ponds subdivision and the Garden World Subdivision were master planned together and there will be no increase in traffic movements than was originally planned. There will be an increase in traffic in Lomandra Lane until such time as stage 4 of Nattai Ponds development is completed." (p 18).
In relation to the submission that the Council had considered but rejected an earlier proposal to change the direction of traffic flow on Lomandra Lane, the modification assessment report stated: "Council considered the change of flow from Lomandra Lane however this was on the expectation that the developer of Nattai Ponds would complete stage 4 of the development that will then allow access from the Garden World subdivision via Isedale Road. As the developer has not completed stage 4 of Nattai Ponds this inhibits the development of the Garden World development and land locks the land from development. The developer has indicated in an email to RMS that he now intends to commence stage 4(a) of the development at some time this year; however there is no requirement for him to do this which then continues to land lock the Garden World development." (p 19).
In relation to the submission that the changed access arrangements will compromise traffic movements, safety and amenity of residents on Lomandra Lane and generally within the Nattai Ponds development, the modification assessment report stated: "The proposed access through Lomandra Lane is a temporary measure until such time as stage 4 of Nattai Ponds is developed and full access is provided by way of Isedale Road. As per the traffic report provided with the application Lomandra Lane is expected to generate 28 (26+2) vehicle trips in the AM peak hour period and 167 vehicles per day. The original master plan for the two (2) developments always proposed these vehicles to use Isedale Road, therefore this small traffic increase on Lomandra Lane will not compromise safety and amenity of residents on Lomandra Lane and generally within the Nattai Ponds development." (p 19).
The modification assessment report concluded that: "The modification application has been assessed in accordance with the matters for consideration under section 4.55 of the Environmental Planning & Assessment Act 1979, and all relevant environmental planning instruments and Council policies. Issues raised in submissions have been considered and where necessary conditions have been applied to address any concerns. On balance, it is recommended that the application be determined by way of approval, subject to the conditions nominated in Attachment 1." (p 21).
The modification assessment report recommended that Council adopt option 1, that "the Section 4.55(2) modification application" be approved subject to conditions as described in the draft conditions of consent, which were Attachment 1 to the report.
The attached draft conditions of consent, amongst other amendments, deleted deferred commencement condition 1 and deleted existing condition 62 and replaced it with a new condition. The new condition 62 required, prior to the release of the subdivision certificates in the Garden World subdivision, the construction of the new road and the three lot subdivision and the extension of Lomandra Lane to provide access to Old Hume Highway and the signposting of Lomandra Lane as being one way traffic southbound.
The Council considered the modification assessment report at its meeting on 27 May 2020. The minutes of the meeting recorded this consideration of the report: "The purpose of this report is to consider a modification to a previously approved Deferred Commencement Consent 11/0767 which was for land subdivision including 129 Residential Lots, 2 commercial lots and 6 lots to be dedicated to Council of Lot 1 DP1232714 (Previously Lot 779 DP751282, Lot 19 DP1148687, Lot 117 DP659149 and easement within Lot 18 DP1148687) 61 Old Hume Highway Braemar (previously 520 Old South Road Mittagong). This report is prepared for a modification of the determination and recommends APPROVAL, subject to consent conditions attached (Attachment 1)." (p 7).
There was a debate at the meeting on the modification application. A transcript of the debate was produced. The main topic of discussion was the changed access arrangements, from traffic using the extension of Isedale Road to instead using Lomandra Lane to access Old Hume Highway. It was noted that this changed access arrangement would increase traffic in Lomandra Lane. The different widths of Isedale Road (19m in the section off Old Hume Highway and 11m in the proposed extension) and Lomandra Lane (5m) were noted. Concern was raised whether Lomandra Lane could cope with the increased traffic as well as construction vehicles. It was noted that the Construction Management Plan, which would form part of the construction certificate for the development, would require construction traffic to access via the Old Hume Highway into the site, and not use Lomandra Lane.
A representative of Development Implementation, the applicant to modify the consent, addressed the meeting and answered questions from the Councillors, including about the traffic impacts of the changed access arrangements. The representative noted that Transport for NSW had suggested changing the access arrangements to use Lomandra Lane in a southbound direction to provide access to the traffic lights at the Old Hume Highway and Isedale Road intersection. This suggestion was taken up by Development Implementation in making the modification application. The representative stated that Development Implementation had "got approvals" from Transport for NSW for "these road changes".
After the debate, a motion was put that "the Section 4.55(2) modification application" be deferred pending the applicant providing alternative traffic solutions for access and egress and a detailed information session to Councillors, amongst other things. That motion was lost.
Another motion, termed an amendment, was then put. The motion was generally in terms of option 1 recommended in the modification assessment report that "the Section 4.55(2) modification application" be approved subject to conditions described in the draft conditions of consent attached to the modification assessment report, but added the wording "including a restriction to limit construction vehicles utilising Lomandra Lane and exiting Isedale Road". That motion was voted on and passed by a majority of Councillors. By the passing of that motion, the application to modify the consent was approved on the conditions recommended in the attachment to the modification assessment report.

The primary judge's decision

The primary judge rejected each of the two grounds of challenge. Ground 1 was that the Council had failed to consider "the reasons given" by the Council for the grant of the consent that was sought to be modified. The primary judge found that there were not, in fact, any reasons given by the Council for the grant of the consent, which could have been considered by the Council in determining the application to modify the consent (at [77]). The primary judge construed the phrase in s 4.55(3), "the reasons given by the consent authority for the grant of the consent", as referring to "those objectively identifiable reasons that are specifically produced by the consent authority when granting the original consent" (at [70]).
The primary judge found that "there were no objectively identifiable reasons that were specifically produced (moreover 'given') by Council when granting the Consent" (at [77]).
Feldkirchen had advanced three documents as containing the Council's reasons: the Council officer's assessment report on the application for development consent that had been prepared for the Council's consideration prior to the Council granting development consent (the consent assessment report); the minutes of the meeting on 26 June 2019 when the Council granted consent; and the notice of determination of the development application to grant consent, which gave reasons for the imposition of conditions of consent. The primary judge rejected each of these documents as evidencing the reasons given by the Council for the grant of the consent: "However, despite the operation of the mandatory requirements for community participation in the EPA Act, on the evidence before the Court, I consider that there were no objectively identifiable reasons that were specifically produced (moreover 'given') by Council when granting the Consent. In support of this conclusion I note the following: first, the Consent Assessment Report was prepared for Council's consideration prior to Council granting the Consent and so was not specifically produced by Council when granting the Consent; second, the minutes of Council's meeting on 26 June 2019 are limited to recording (in plain terms) Council's decision to grant the Consent subject to certain conditions and cannot be characterised as constituting reasons for the Consent; and third, notwithstanding the inclusion of reasons for the imposition of conditions in the notice of determination dated 1 July 2019, these reasons can be distinguished from the reasons given for the grant of the Consent (where the former are required to be included in a notice of determination pursuant to cl 100(1)(c) of the Environmental Planning and Assessment Regulation 2000 (NSW) ('EPA Regulation') and are directed at elucidating the motive for imposing discrete conditions in circumstances where this is relevant to the statutory right of appeal on the merits, and the latter are concerned with the Consent as a whole and directed at fulfilling mandatory requirements for community participation in the EPA Act pursuant to cl 20 of Sch 1 of the EPA Act). I have also considered the other evidence before the Court and have not identified any document which can be considered to be objectively identifiable reasons that were specifically produced by Council when granting the Consent. In conclusion, I find that where no reasons were given by Council when granting the Consent, there was no obligation on Council to consider the reasons for the original grant of the Consent when granting the Approval. As such, I find that Council did not fail to consider a mandatory relevant consideration, and that this ground of review raised by the applicant has not been made out." (at [77]).
The primary judge held, in the alternative if he were to be wrong in finding that there were no reasons given by the Council for the grant of the consent, that "the reasons were the reasons for the imposition of conditions provided by Council in the notice of determination dated 1 July 2019 pursuant to cl 100 of the EPA Regulation 2000" (at [82]).
The primary judge found that the requirement in s 4.55(3) of the EPA Act to take into consideration the reasons given by the consent authority for the grant of the consent should be interpreted having regard to its context: "Where the requirement to consider matters required in the first sentence of s 4.55(3) is limited in scope to matters 'of relevance to the development the subject of the application', the scope of the second sentence would be limited in a similar manner." (at [84]).
The primary judge found: "Given this, I find that the obligation to consider 'the reasons given' for the Consent in the second sentence of s 4.55(3) of the EPA Act is limited to those reasons which are relevant to the elements of the Consent the subject of the modification application. This includes the reason for condition 62 of the Consent, which requires the construction of Isedale Road (as referred to in the deferred commencement condition) prior to the release of the first subdivision certificate, which was imposed 'to ensure access to the Development Site [Land]'. Council was required to consider this reason when granting the Approval." (at [86])
The primary judge found that Feldkirchen had not established that an inference should be drawn that the Council did not take into consideration the reasons given for the conditions of consent sought to be modified, when determining the application to modify the consent (at [89], [90]). The primary judge gave 10 reasons (in [89]).
Ground 2 was that the Council had failed to form the opinion of satisfaction that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted, as required by s 4.55(2)(a) of the EPA Act. The formation of this opinion of satisfaction is a precondition to the exercise of the power in s 4.55(2) to approve the modification of the development consent.
The primary judge found that Feldkirchen had not established "that an inference should be drawn that Council did not form the necessary opinion of satisfaction when granting the Approval" (at [107] and [125]). The primary judge's reasons (in [108]-[124]) included: 1. The statement in the modification assessment report to the Council that the modification application had been assessed "in accordance with the matters for consideration under section 4.55 of the [EPA Act]" (at [108]); 2. The requirement in s 4.55(2)(a) is well known to consent authorities, having been an element of the power to modify development consents since the introduction of the EPA Act in 1979 (at [109]); 3. It is reasonable to presume that the Council and the Councillors had general knowledge of s 4.55(2)(a) and the requirement to form the necessary opinion of satisfaction (at [111]); 4. The modification assessment report identified the proposed modifications, including the deletion of deferred commencement condition 1 and replacement of condition 62, to change the access arrangements, and "the essential and material features of the proposed modifications", such that it can be inferred that the Council was aware of these features when it approved the modification of the consent (at [113]); 5. The modification assessment report recorded the changed access arrangements and their consequences, including regarding traffic movements (at [114]); 6. The modification assessment report recorded the objections to the proposed modification and the responses to those objections (at [115]); 7. The modification assessment report specifically dealt with the expected environmental impacts of the development as modified by reference to the development for which consent was originally granted, which supports an inference that the comparison required by s 4.55(2)(a) was undertaken in the modification assessment report (at [116]); 8. This assessment and comparison of the development as modified and the development for which consent was originally granted could be distinguished from the consideration of the merits of the proposed modifications in the modification assessment report (at [117]); 9. The transcript of the debate of the Council meeting provides evidence of the Council undertaking the required assessment and comparison of the development as modified and the development as originally approved (at [118]); 10. The fact that the same Councillors constituted the Council when granting consent in June 2019 and when approving the modification application in May 2020 supports an inference that the Councillors were familiar with the development for which consent was originally granted when determining whether to approve the application for the modification of the consent (at [119]); and 11. The Councillors' knowledge of the essential features of the development for which consent was originally granted combined with the Councillors' understanding of the essential features of the proposed modifications militates against an inference being drawn that the Council did not form the necessary opinion of satisfaction when approving the application to modify the consent (at [120]).

The appeal to this Court

Feldkirchen's appeal is pursuant to s 58 of the Land and Environment Court Act 1979 and is by way of rehearing. The two grounds of appeal are the same as the two grounds of challenge in the Court below. Ground 1 was the Council's failure to take into consideration the reasons given for the grant of original consent. Ground 2 was the Council's failure to form the required opinion of satisfaction that the development as modified was substantially the same development as the development for which consent was originally granted.

Ground 1: Failure to consider reasons for grant of consent

Feldkirchen challenged the primary judge's finding that no reasons were given by the Council for the grant of the consent that was sought to be modified and that accordingly the Council did not fail to take into consideration the reasons given by the Council for the grant of consent in breach of s 4.55(3) of the EPA Act.
Feldkirchen submitted that implicit in the obligation under s 4.55(3) to take into consideration the reasons given by the consent authority for the grant of the consent that is sought to be modified is a requirement to ascertain what reasons were given by the consent authority for the grant of the consent. The reasons given might be in a document specifically produced by the consent authority when granting the consent, as the primary judge held, but the reasons might also be in any other document that recorded the reasons for the grant of the consent. Feldkirchen submitted that the obligation to take into consideration the reasons given by the consent authority for the grant of the consent is not discharged merely because there was no clear statement of reasons produced by the consent authority when it granted the consent. Where specific and express reasons are not set out in a document, the consent authority must go looking for them and "must nonetheless attempt to ascertain as best it can what were the essential reasons" for the decision to grant the consent: see analogously, Botany Bay City Council v Premier Customs Service Pty Ltd (2009) 172 LGERA 338; [2009] NSWCA 226 at [31].
Feldkirchen submitted that the Council failed to discharge this implicit obligation to ascertain what were the reasons given by the Council for the grant of the consent that was sought to be modified. As a consequence, the Council never engaged with its statutory obligation to consider the reasons given for the grant of the consent. That was a breach of s 4.55(3) of the EPA Act.
Feldkirchen submitted that had the Council looked for the reasons given for the grant of consent, those reasons would have been able to be ascertained from three documents: the consent assessment report considered by the Council in granting the consent, the minutes of the meeting at which the Council granted the consent, and the notice of determination of the development application to grant the consent.
As to the first and second documents, Feldkirchen accepted that the consent assessment report was prepared prior to the Council resolving to grant the consent, but argued that in granting the consent the Council adopted the reasoning and recommendation in the consent assessment report. By such adoption, the reasons given in the consent assessment report became the reasons given by the Council for the grant of the consent. To the extent that the reasons are not readily apparent under a specific heading setting them out, they nevertheless can be distilled from the consent assessment report.
Feldkirchen contended that the Council, in determining the application for modification of the consent, did not consider the reasons given in the consent assessment report. The modification assessment report did not refer to the consent assessment report, or any reasons given in it, and neither the minutes nor the transcript of the meeting at which the Council determined the application for modification of the consent recorded the Council referring to the consent assessment report or the reasons given in it.
As to the third document, the notice of determination of the development application set out the reasons given by the Council for the imposition of various conditions of consent. None of the modification assessment report or the minutes or the transcript of the meeting at which the Council approved the application to modify the consent, referred to the reasons given in the notice of determination for imposing conditions of consent. Feldkirchen contended that the obligation in s 4.55(3) requires taking into consideration all of the reasons given for the imposition of conditions of consent, and not just the reasons given for conditions of consent sought to be modified.
Feldkirchen submitted that the Council could not discharge its obligation, under s 4.55(3) of the EPA Act, without considering the reasons given in these three documents for the grant of the consent. As a matter of fact, the Council did not consider the reasons given in these three documents. The Council therefore breached its obligation under s 4.55(3).
Development Implementation submitted that the primary judge was correct in finding that the Council did not breach the obligation under s 4.55(3), for the reasons given by the primary judge. As a matter of fact, the Council did not give reasons for the grant of the consent. None of the consent assessment report, the minutes of the meeting, or the notice of determination to grant consent gave the Council's reasons for the grant of the consent.
By notice of contention, Development Implementation sought to uphold the primary judge's finding by contending that, at the time the Council granted the consent, there was no statutory obligation on it to give reasons for the grant of the consent. In this circumstance, it was not surprising that the Council did not give reasons for the grant of the consent.
I reject Feldkirchen's first ground of appeal. The primary judge was correct, for the reasons he gave, that no reasons were given by the Council for the grant of the consent that was sought to be modified. If no reasons were in fact given, the Council cannot have failed, in breach of s 4.55(3) of the EPA Act, to have taken into consideration reasons that were not given by the Council for the grant of the consent. The obligation under s 4.55(3) is simply to take into consideration such reasons as might be given by the consent authority for the grant of the consent that is sought to be modified.
The primary judge was correct in finding, for the reasons he gave, that none of the consent assessment report prepared prior to the Council determining to grant the consent, the minutes of the meeting at which the Council granted the consent, or the notice of determination of the development application to grant consent recorded any reasons given by the Council for the grant of the consent.
As to the consent assessment report, by itself, it cannot record "the reasons given by the consent authority for the grant of the consent" (the wording of s 4.55(3)) as it was prepared prior to the Council determining to grant the consent.
The Council, in determining to grant consent, could have stated that its reasons for the grant of the consent were the reasons given in the consent assessment report. Such a statement by the Council would be a statement of reasons given by the Council for the grant of the consent for the purposes of s 4.55(3). But the Council did not make any such statement in granting the consent.
The minutes of the meeting at which the Council granted the consent made two references to the consent assessment report. The first reference was to record that the consent assessment report was put before the Council at the meeting. The minutes recorded that: "The purpose of this report is to consider Development Application 11/0767 which seeks approval to subdivision of 129 Residential Lots, 2 Commercial Lots and 6 lots to be dedicated to Council as Lot 1 DP1232714 (previously Lot 779 DP751282, Lot 19 DP1148687, Lot 117 DP659149 and easement within Lot 18 DP1148687) 61 Old Hume Highway Braemar (formerly part of 520 Old South Road Mittagong). This report is prepared for determination and recommends APPROVAL, subject to a deferred commencement condition that the consent is not to operate until the applicant satisfies the consent authority as to the matters specified in the conditions (Attachment 1)."
This statement in the minutes was not an adoption by the Council of the consent assessment report or any reasons given in the report, only a record of the fact that the report had been put before the Council for its consideration.
The second reference to the consent assessment report was in the motion that was passed by the Council to grant the consent subject to conditions. The motion was: "1. THAT Development Application 11/0767 for a subdivision consisting of 129 Residential Lots, 2 Commercial Lots and 6 lots to be dedicated to Council of Lot 1 DP 1232714 (formerly Lot 779 DP751282, Lot 19 DP1148687, Lot 117 DP659149 and easement within Lot 18 DP1148687 - 61 Old Hume Highway Braemar (formerly part of 520 Old South Road Mittagong) be APPROVED subject to a deferred commencement condition that the consent is not to operate until the applicant satisfies the consent authority as to the matters specified in the deferred condition and subject to general conditions as described in Draft Conditions of Consent (Attachment 1) to the report."
The reference in the motion to the consent assessment report was limited to the draft conditions of consent to the report, which were Attachment 1 to the report. That bare reference in the motion that was passed to the conditions of consent attached to the consent assessment report was not an adoption by the Council of the report itself or any reasons given in the report.
Accordingly, the minutes of the meeting did not record that the Council gave reasons for the grant of the consent.
The notice of determination of the development application to grant the consent subject to conditions was in the standard form. No reasons were given in the notice of determination "for the grant of the consent". However, pursuant to the former cl 100(1)(c) of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation), which was then in force, the Council did include reasons for the imposition of conditions in the notice of determination. Clause 100(1) of the EPA Regulation required a notice of determination of a development application to contain: "(b) if the application has been granted, the terms of any conditions on which it has been granted; (c) if the application has been refused, or granted subject to conditions, the consent authority's reasons for the refusal or the imposition of those conditions."
Clause 100(1) thereby imposed different content requirements for the grant of consent on conditions and the refusal of consent. Reasons only needed to be included in the notice of determination for a refusal of the development application and for the imposition of conditions of consent, but not for the grant of the consent itself.
The notice of determination of the development application in this case contained the terms of the conditions on which the application had been granted, as required by cl 100(1)(b) of the EPA Regulation, and the Council's reasons for the imposition of those conditions, as required by cl 100(1)(c) of the EPA Regulation, but not reasons for the grant of the consent itself.
In these circumstances, the primary judge was correct in finding that the notice of determination did not record "the reasons given by the consent authority for the grant of the consent", that being the language of s 4.55(3) of the EPA Act.
In circumstances where the Council as the consent authority did not give reasons for the grant of the consent, it cannot be in breach of the obligation in s 4.55(3), in determining an application for modification of the consent, to take into consideration reasons given by the consent authority for the grant of the consent that is sought to be modified. This is so irrespective of whether there is or is not an implicit obligation under s 4.55(3) for the consent authority to ascertain the reasons given by the consent authority for the grant of the consent. If no reasons were given by the consent authority for the grant of the consent, there can be no reasons to be ascertained. A consent authority cannot breach the statutory obligation under s 4.55(3) to take into consideration reasons that have not been given for the grant of the consent.
In light of this factual finding that no reasons were given by the Council for the grant of the consent, there is no need to determine Feldkirchen's challenge to the primary judge's alternative finding that, if the notice of determination could be said to contain the reasons given for the grant of consent, the Council considered those reasons in determining the application to modify the consent. There is also no need to determine Development Implementation's notice of contention that the Council was not obliged to give reasons for the grant of the consent.

Ground 2: Failure to form opinion that the development as modified is substantially the same as the development originally approved

Feldkirchen challenged the primary judge's finding that it had not established that the Council had failed to form the necessary opinion of satisfaction under s 4.55(2)(a) of the EPA Act that the development as modified was substantially the same development as the development originally approved.
Feldkirchen submitted that the primary judge erred in not drawing the inference that the Council did not form the necessary opinion of satisfaction. Feldkirchen submitted that this inference should have been drawn having regard to the absence of any express reference in the modification assessment report, the minutes of the meeting or the transcript of the debate at the meeting, to the substantially the same development issue, either in terms or in substance. The absence of reference in the materials before the Councillors addressing the substantially the same development issue is a strong indicator that the Council did not turn its mind to the required task: King v Bathurst Regional Council (2006) 150 LGERA 362; [2006] NSWLEC 505 at [69]-[75].
Feldkirchen submitted that it was not only the absence in the evidence of any reference to the precondition in s 4.55(2)(a) that the Council form the required opinion of satisfaction, it also was the absence in the evidence of the assessment that would be required if the Council had addressed the precondition. That assessment would have required an evaluation of the qualitative and quantitative differences between the modified development and the originally approved development, and the impacts of those respective developments, as suggested in Moto Projects (No 2) Pty Ltd v North Sydney Council (1999) 106 LGERA 298; [1999] NSWLEC 280 at [55] and [56]. None of the modification assessment report, the minutes of the meeting or the transcript of the meeting record the Council undertaking the assessment that would be required in order for the Council to form the opinion of satisfaction required by s 4.55(2)(a).
Although there was express reference to the substantially the same development issue in the Statement of Environmental Effects accompanying the modification application, Feldkirchen noted that that document was not before, and was not considered by, the Councillors at the meeting. The Council's response to the notice to produce established that the Statement of Environmental Effects was not before the Councillors or relied upon by the Councillors in making the determination to approve the modification application. The Council officer did consider the Statement of Environmental Effects in preparing the modification assessment report, which report was considered by the Councillors, but did not refer to or discuss the section of the Statement of Environmental Effects on the substantially the same development issue. The Councillors therefore did not consider, directly or indirectly, the discussion in the Statement of Environmental Effects on the substantially the same development issue.
Feldkirchen submitted that the primary judge was incorrect in finding that certain statements and discussion in the modification assessment report and at the Council meeting supported drawing an inference that the Council formed the necessary opinion of satisfaction when granting approval to the modification application.
First, Feldkirchen submitted that the statement in the modification assessment report that "the modification application has been assessed in accordance with the matters for consideration under section 4.55" of the EPA Act did not evidence that the Council formed the necessary opinion of satisfaction under s 4.55(2)(a). The statutory requirement is to form the necessary opinion of satisfaction, not merely consider whether the modified development is substantially the same development as the originally approved development. Hence, the statement in the modification assessment report that the modification application has been assessed in accordance with the matters for consideration in s 4.55 is uninformative of whether such consideration led the Council to form the necessary opinion of satisfaction.
Feldkirchen submitted that s 4.55(2)(a) requires positive attention and the making of particular findings, having regard to the wording of the precondition in s 4.55(2)(a): see analogously Conservation of North Ocean Shores Inc v Byron Shire Council (2009) 167 LGERA 52; [2009] NSWLEC 69 at [77] and South East Forest Rescue Inc v Bega Valley Shire Council (2011) 211 LGERA 1; [2011] NSWLEC 250 at [111]. Feldkirchen submitted that the general merit assessment of the matters for consideration was insufficient; the Council needed to consider and make particular findings about the matter in s 4.55(2)(a).
Secondly, reading the modification assessment report as a whole, Feldkirchen submitted that the statement that the modification application had been assessed in accordance with the matters for consideration under s 4.55 can be seen to be a reference to the first sentence of s 4.55(3), that in determining an application for modification of a consent the consent authority must take into consideration such of the matters referred to in s 4.15(1) as are of relevance to the development the subject of the application. Consideration of the matters in s 4.15(1) of relevance to the modified development formed a significant part of the assessment in the modification assessment report, both in the section headed "Section 4.15 Evaluation" and in the other sections referred to in that section. In particular, the modification assessment report addressed the likely impacts of the modified development, which was said to "predominantly pertain to traffic and rail noise". The traffic issues and impacts were discussed over four pages in the section "proposed modification" and in a further two pages in the section "neighbour notification (or advertising)/public participation". This discussion demonstrated that the assessment in the modification assessment report was a conventional merit assessment rather than an engagement in the statutory requirement to form the necessary opinion of satisfaction that the modified development was substantially the same development as the originally approved development.
Thirdly, Feldkirchen submitted that one of the critical comparisons that would have needed to have been undertaken, was not undertaken in the modification assessment report, being the minimum 10-fold increase in traffic movements along Lomandra Lane by changing the access arrangements.
Fourthly, Feldkirchen submitted that it is not sufficient that the modification assessment report might have identified the essential and material features of the proposed modifications. Such identification was made for the purpose of assessing the likely impacts of the development pursuant to s 4.55(3) and s 4.15(1)(b) of the EPA Act and not for the purpose of forming the required opinion of satisfaction under s 4.55(2)(a). Likewise, the modification assessment report's discussion of the "implications" or consequences of amending the conditions of consent involved a merit assessment of the impacts of the modified development, not an evaluation of whether the modified development was substantially the same development as the originally approved development.
Fifthly, Feldkirchen submitted that the primary judge was also incorrect in finding that the debate at the Council meeting supported drawing an inference that the Council formed the necessary opinion of satisfaction. Feldkirchen submitted that any identification by the Councillors of the material and essential features of the proposed modifications was for the purpose of undertaking the consideration of the likely impacts of the modified development - the exercise required by s 4.55(3) and s 4.15(1)(b) of the EPA Act - not for the purpose of forming the opinion of satisfaction required by s 4.55(2) of the EPA Act. Insofar as there was some degree of comparison between the modified development and the originally approved development, that comparison was for other purposes, including considering the planning controls under s 4.15(1)(a), the submissions made in accordance with the EPA Act as required by s 4.15(1)(d), and the public interest as required by s 4.15(1)(e).
In any event, Feldkirchen submitted that the Councillors did not, in the debate, identify all of the material and essential features of the proposed modifications because one of the material and essential features, the 10-fold increase in the daily traffic on Lomandra Lane, was not assessed or referred to in the debate.
Development Implementation submitted that the primary judge was correct in finding that Feldkirchen had not established that an inference should be drawn that the Council did not form the necessary opinion of satisfaction under s 4.55(2)(a) before approving the application to modify the consent.
Development Implementation noted that Feldkirchen bore the onus of proving, on the balance of probabilities, that the Council did not form the necessary opinion of satisfaction under s 4.55(2)(a) before approving the modification application: Caroona Coal Action Group Inc v Coal Mines Australia Pty Ltd (2010) 178 LGERA 411; [2010] NSWCA 353 at [58], [66], [67]. Development Implementation noted that proof that the Council did not form the required opinion of satisfaction "may be a matter of difficulty", but Feldkirchen, as the person challenging the Council's decision, "must discharge that onus however difficult that may be and [it] must do so in accordance with proper legal requirements and by inference not suspicion". A conclusion by a court finding by inference that the Council did not form the required opinion of satisfaction "is one to come to only after anxious consideration": Parramatta City Council v Hale (1982) 47 LGRA 319 at 345.
Development Implementation submitted that the inference that the Council did not form the necessary opinion of satisfaction would not be drawn, despite there being no explicit reference to the precondition in s 4.55(2)(a) in the modification assessment report, the minutes of the meeting or the transcript of the debate of the Council meeting, for five reasons.
First, the modification assessment report expressly referred to s 4.55(2) of the EPA Act. This subsection was the source of power that the Council was being asked to exercise, and did exercise, to approve the application to modify the development consent. Section 4.55(2) contained the statutory requirement to form the necessary opinion of satisfaction that the development as modified was substantially the same development as originally approved, in exercising the power to approve the application to modify the development consent. The modification assessment report referred to the modification application being made under s 4.55(2), firstly in the recommendation that "the Section 4.55(2) modification application" be approved subject to conditions and, secondly, in the section on the options available to the Council as to how to determine the modification application, either option 1 that "the Section 4.55(2) modification application" be approved subject to conditions or option 2 that "the Section 4.55(2) modification application" be determined by way of refusal. These explicit references to s 4.55(2) directed the Council's mind to the source not only of the power to be exercised but also of the statutory requirements conditioning the exercise of that power that the Council form the necessary opinion of satisfaction.
Secondly, the modification assessment report stated that the modification application had been assessed "in accordance with the matters for consideration under section 4.55" of the EPA Act. The matters for consideration under s 4.55 of the EPA Act include the matters in s 4.55(2), which was the power the Council was being asked to, and did, exercise. One of the matters in s 4.55(2) is the requirement in s 4.55(2)(a) that the consent authority is satisfied that the development as modified be substantially the same development as the development originally approved. Another of the matters for consideration under s 4.55 is the requirement in s 4.55(3) that the consent authority take into consideration such of the matters referred to in s 4.15(1) that are of relevance to the development the subject of the modification application. The modification assessment report contained a separate section, with an express heading, on the "Section 4.15 Evaluation". The statement that the modification application had been assessed in accordance with the matters for consideration under s 4.55 was therefore broader than only the s 4.15 evaluation.
Thirdly, the precondition in s 4.55(2)(a) that the consent authority form the necessary opinion of satisfaction before exercising the power to approve the modification application has existed since the making of the EPA Act in 1979. The general power to modify a development consent (originally in s 102(1)) has always been conditioned upon the consent authority being satisfied that the development to which the consent as modified relates is substantially the same development. Development Implementation submitted that there is nothing particular or novel about this precondition and it has not changed in substance since the EPA Act was first made.
Development Implementation submitted that, in these circumstances, the Council should be assumed to have general knowledge of the statutory provision of the EPA Act empowering the Council's consideration and determination of an application to modify a development consent. This includes being aware of the precondition to the exercise of the power to modify a development consent. The Council would have needed to have fulfilled this precondition every time the Council exercised the power to modify a development consent. The Council should be inferred to have been aware that it needed to form the necessary opinion of satisfaction in order to approve the application to modify the development consent: Springer v Woollahra Municipal Council (2000) 108 LGERA 392; [2000] NSWLEC 135 at [44], [47] , [50]; Notaras v Waverley Municipal Council (2007) 161 LGERA 230; [2007] NSWCA 333 at [131]-[134]; City of Ryde Council v New South Wales (2019) 242 LGERA 211; [2019] NSWLEC 47 at [98].
Fourthly, the modification assessment report and the debate at the Council meeting addressed the substance of the question required to be addressed by the precondition in s 4.55(2)(a) of the EPA Act. It was not necessary for the Council to refer explicitly to the statutory provision that posed the question (although the modification assessment report did in fact refer explicitly to s 4.55(2)), or to set out the terms of the precondition in s 4.55(2)(a). The Council was required to address the substance of the question posed by the precondition in s 4.55(2)(a), not the fact that the question is posed by the precondition in s 4.55(2)(a): Hill v Woollahra Municipal Council (2003) 127 LGERA 7; [2003] NSWCA 106 at [53]; Notaras v Waverley Municipal Council at [131].
Development Implementation submitted that both the modification assessment report and the debate at the Council meeting did address the substance of the question posed by the precondition in s 4.55(2)(a). This required a comparison between the development as modified and the development as originally approved to determine whether the development as modified is substantially the same development as the development originally approved.
Development Implementation submitted that access to the development through Feldkirchen's land was a material and essential feature of the consent, resulting in the imposition of deferred commencement condition 1 and condition 62. The language used in the modification assessment report with respect to the access issue echoed that used in the consent assessment report. The modification assessment report included the same plan, showing the interface between both developments, as the plan in the consent assessment report. The modification assessment report expressly addressed the access issue and the reason why the deferred commencement condition had been imposed, and compared that to the consent as sought to be modified by implementing a different access solution pending completing of Stage 4 of the Nattai Ponds subdivision.
Fifthly, the Councillors constituting the Council as the collegiate decision maker were the same for the decision to grant the development consent as they were for the decision to modify the development consent. In these circumstances, the Councillors should be assumed to bring their knowledge of the development for which consent was originally granted to their consideration of the development as sought to be modified by the application to modify the development consent.
Accordingly, Development Implementation submitted that the primary judge was correct, for the reasons he gave, in finding that Feldkirchen had not established that an inference should be drawn that the Council did not form the necessary opinion of satisfaction under s 4.55(2)(a) before approving the modification application.
Development Implementation raised, by way of notice of contention, however, that the primary judge was incorrect in not finding that the Councillors had knowledge of the Statement of Environmental Effects that accompanied the modification application. The Statement of Environmental Effects dealt in detail with the precondition in s 4.55(2)(a) that the development as modified be substantially the same development as the development originally approved. The Council officer who authored the modification assessment report had regard to the Statement of Environmental Effects and extracted many paragraphs from the Statement of Environmental Effects word for word, including the summary of the traffic impact assessment of the changes in access arrangements, and figures 1 to 6 of the modification assessment report were drawn from the Statement of Environmental Effects.
Development Implementation submitted that the qualified response given by the Council's solicitor to the notice to produce did not rule out the possibility that the Councillors may have looked at or considered the Statement of Environmental Effects that accompanied the modification application and was available on the Council's file.
I reject Feldkirchen's second ground of appeal. The primary judge did not err in finding that Feldkirchen had not established that an inference should be drawn that the Council did not form the necessary opinion of satisfaction under s 4.55(2)(a) before exercising the power under s 4.55(2) to approve the application to modify the development consent. The matters to which the primary judge referred in the judgment and the matters to which Development Implementation has referred in submissions, support not drawing the inference that the Council failed to form the necessary opinion of satisfaction under s 4.55(2)(a).
Whilst explicit reference was not made in the modification assessment report considered by the Council or in the debate at the Council meeting to the terms of the precondition in s 4.55(2)(a) of the EPA Act, there were other indicators that the Council did address the question posed by the precondition in s 4.55(2)(a).
First, the modification assessment report expressly stated that the modification application was made under s 4.55(2) of the EPA Act. There are, under the current EPA Act, four sources of power to modify a development consent, three in s 4.55(1), (1A) and (2) and one in s 4.56(1) of the EPA Act. The power to modify a consent in s 4.55(2) is the general power and has existed in substantially the same terms since the enactment of the EPA Act in 1979. In particular, the exercise of the general power to modify a development consent has always been conditioned on the consent authority being satisfied that the development to which the consent as modified relates is substantially the same development as the development originally approved (originally in s 102(1)(a) and now in s 4.55(2)(a) of the EPA Act).
The Council's attention was particularly directed to the modification application in this case being made under, and the Council being asked to exercise, this general power to modify a consent under s 4.55(2). As observed in Hill v Woollahra Municipal Council at [53], "explicit reference to the statute or instrument will help confirm that the body did address the right question".
Secondly, the statement in the modification assessment report that "the modification application has been assessed in accordance with the matters for consideration under section 4.55" of the EPA Act reveals that the assessment was broader than just a merit assessment of the relevant matters under s 4.15(1) of the EPA Act. Section 4.55(3) does require the consent authority, in determining an application for modification of a consent, to take into consideration such of the matters referred to in s 4.15(1) as are of relevance to the development the subject of the modification application. These matters in s 4.55(3), and by incorporation in s 4.15(1), were therefore "matters for consideration under section 4.55" of the EPA Act. The matters in s 4.15(1) were expressly considered in the section in the modification assessment report headed "Section 4.15 Evaluation".
But these matters were not the only matters that fell within this description of "matters for consideration under section 4.55". The matters in s 4.55(2) also fell within this description. One of the matters in s 4.55(2) is the question raised by the precondition of whether "the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted". The statement in the modification assessment report that "the modification application has been assessed in accordance with the matters for consideration under section 4.55", therefore, embraces an assessment of the matter in s 4.55(2)(a) of the EPA Act. The matter in s 4.55(2)(a) is still a matter for consideration, regardless that the consent authority needs to form an opinion of satisfaction with respect to the matter.
Thirdly, the power to modify a consent in s 4.55(2), and the precondition in s 4.55(2)(a) to the exercise of the power that the consent authority form the necessary opinion of satisfaction, are long established and commonly invoked by consent authorities, including the Council. The Council would have needed to form the necessary opinion of satisfaction every time it exercised the power under s 4.55(2) (or its predecessors) to modify a development consent. In these circumstances, an inference would not readily be drawn that the Council was not aware either of the precondition in s 4.55(2)(a) or the need to fulfill the precondition before the Council could exercise the power under s 4.55(2) to approve the application to modify the consent.
Fourthly, the modification assessment report and the debate at the Council meeting undertook the assessment required by the precondition in s 4.55(2)(a). As the primary judge recorded in the judgment, and Development Implementation added in its submissions, the modification assessment report and the Council in the debate at the meeting undertook a comparison of the development as modified and the development as originally approved. Whilst that comparison may not have been described in the terms, or been undertaken in the ways suggested in some of the authorities, such as Moto Projects (No 2) Pty Ltd v North Sydney Council, the substance of the question posed by the precondition in s 4.55(2)(a) was addressed.
The comparison required by s 4.55(2)(a) is simply between two developments: the development as modified and the development as originally approved: Scrap Realty Pty Ltd v Botany Bay City Council (2008) 166 LGERA 342; [2008] NSWLEC 333 at [16] and Arrage v Inner West Council [2019] NSWLEC 85 at [24]. Case law on the precondition, both in earlier statutory provisions, such as s 102(1), and the current statutory provision of s 4.55(2), has suggested ways in which this comparison between the two developments might beneficially be undertaken. This includes identifying and comparing the "material and essential features" of the two developments: Moto Projects (No 2) Pty Ltd v North Sydney Council at [55], [56] and [58] and Arrage v Inner West Council at [26]. These suggested ways of undertaking the comparison between the two developments, however, do not displace the statutory test in s 4.55(2)(a) or demand that the required comparison be undertaken in those ways: Arrage v Inner West Council at [27], [28].
Hence, contrary to Feldkirchen's submission, the absence of reference to the language of the "material and essential features" of the two developments, or a qualitative and quantitative assessment of the two developments in the ways suggested by prior judicial decisions, in the modification assessment report or the debate at the Council meeting, does not of itself indicate that the Council did not undertake the comparison required by s 4.55(2)(a). Again, so long as the Council did address the substance of the question raised by s 4.55(2)(a), it did not have to refer to the precise terms of s 4.55(2)(a) or the ways in which courts have suggested that the question raised by s 4.55(2)(a) might be addressed.
Finally, the fact that the same Councillors constituted the Council in granting consent to the development originally and in approving the modification of the consent supports not drawing an inference that the Councillors, in determining the modification application, did not undertake the comparison of the two developments required by s 4.55(2)(a). The Council could be assumed to be aware of the development for which consent was originally granted and to have brought this knowledge to bear in considering the development to which the consent as modified would relate if the application to modify the consent were to be approved.
Feldkirchen, as the challenger to the Council's decision under s 4.55(2) to approve the modification application, bore the onus of establishing that the Council did not form the necessary opinion of satisfaction under s 4.55(2)(a). The primary judge did not err in finding, on the balance of probabilities, that Feldkirchen had not discharged this onus. Having regard to the matters discussed above, the inference should not be drawn that the Council did not form the necessary opinion of satisfaction under s 4.55(2)(a) before it decided to approve the modification application.
In light of this conclusion, it is unnecessary to determine Development Implementation's notice of contention that the Statement of Environmental Effects, with its discussion of the precondition in s 4.55(2)(a), was also before the Council and informed the Council's exercise of the power under s 4.55(2) to approve the modification application.

Conclusion and orders

Feldkirchen has not established either of its grounds of appeal. The appeal should be dismissed with costs.
I propose the Court order: 1. The appeal is dismissed. 2. The appellant is to pay the respondents' 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: 09 November 2022

Environmental Planning and Assessment Regulation 2000(NSW)

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