Fernance Family Holdings Pty Ltd v Newcastle City Council

In these circumstances, I can see no justification for the Council's submission that the Applicant's appeal pursuant to the EP&A Act s 96(6) should be summarily dismissed because it is seeking a result (namely the grant of development consent for the use on the two specified days each year of the roofed carpark for a non-carparking purpose) by an impermissible means (namely the modification of a development consent that only granted consent for the erection of the roof to the carpark).

Rather, when the facts are properly analysed, as I have endeavoured to demonstrate, the Applicant is seeking the modification of the development consent in order to remove the legal bar that was created by the imposition of condition 5.4 to the proposed use of the roofed carpark on two specified days each year for a non-carparking purpose.

However, it is quite a different question whether the result of the modification application process, is the grant of development consent to so use the roofed carpark area on the two specified days each year. With respect, I think that the Council's argument has overlooked this vital difference.

It is one thing for a modification application to seek to remove a restriction on the use of the land that exists by virtue of a condition imposed upon the grant of development consent for the erection of a roof over the carpark area, it is a different think to conclude that the removal of that restriction is tantamount to the grant of development consent sanctioning the proposed use.

The Council's argument has failed to distinguish between the different sources of potential prohibition on the proposed use - namely (i) condition 5.4 of the development consent; and (ii) the EP&A Act s 76B prohibiting the carrying out of specified development (eg for hotel purposes) subject to other provisions of the Act eg the "existing use" provisions contained in Div 10 Pt 4. It has likewise failed to fully appreciate that the grant of a modification application is not tantamount to granting development consent: vide s 96(4). This last mentioned conclusion is not at odds with earlier decisions which have recognised that a modified development consent may legitimately overcome the prohibition on development now contained in the EP&A Act s 76B - see Valhalla Cinemas Pty Ltd v Leichhardt Municipal Council (1986) 60 LGRA 240 and North Sydney Council v Michael Standley and Associates Pty Ltd (1998) 97 LGERA 433.

In the present case, what must not be overlooked is the fact that the development consent sanctioned the erection of a building, namely the roof over an existing hotel carpark and that consent was subject to a condition (Condition 5.4) limiting the use of the land upon which the building was erected to carparking purposes.

Accordingly, any modification of that condition does not and cannot result in the grant of development consent to anything more than that which was approved by the development consent, namely the roof over the hotel carpark.

For all the foregoing reasons, the Council's Motion for summary dismissal of the proceedings must be dismissed.

E. THE COMPETING ARGUMENTS ON THE QUESTION OF LAW WHETHER THE MODIFIED CONSENT IS FOR SUBSTANTIALLY THE SAME DEVELOPMENT AS WAS ORIGINALLY CONSENTED TO

As earlier noted, the Applicant did not oppose the Court entertaining the Council's claim to alternative relief, provided that the question was determined solely as a question of law.

The Council could not be heard to complain about the limited nature of the Court's preliminary determination for two reasons - firstly, the alternative claim had not been included in the Council's original Notice of Motion which had been confined to the Council's claim for summary dismissal of the proceedings and secondly, when the Council filed its Amended Notice of Motion, it propounded the question for preliminary determination as a question of law.

It is, I think, unfortunate that the Court has not been allowed to wholly determine the question because as I pointed out in Moto Projects (No 2) Pty Ltd v North Sydney Council (1999) 106 LGERA 298 at 309: The relevant satisfaction required by s 96(2)(a) to be found to exist in order that the modification power be available involves an ultimate finding of fact based upon the primary facts found.

Accordingly, being limited to a determination of a question of law, the relevant question in the present case comes down to the following (cf Hope v Bathurst City Council (1980) 144 CLR 1 at 10; Australian Gas Light Co v Valuer General (1940) 40 SR (NSW) 126 at 138; Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 156.

Are the primary facts necessarily outside the statutory condition stipulated in s 96(2)(a) ?

To recapitulate the relevant primary facts, they are as follows: (i.) the development in respect of which the consent was originally granted was the erection of a roof over the existing hotel carpark subject to the condition that the existing carparking area be used only for the parking of the hotel staff and patrons' cars and hotel delivery vehicles; (ii.) the development, in respect of which the modified consent is to be granted, is the same building subject to the same condition on the use of the carparking area except for use for different purposes connected with the hotel on two days per year (namely, Anzac Day and Melbourne Cup day).

Can it be fairly said of these primary facts that they necessarily fall outside of the statutory condition. That is, can it be fairly said that the development in respect of which the modified consent is granted is necessarily not "substantially the same development as the development for which the consent was originally granted".

In Moto I discussed in the following passages at 309 the nature of the comparative task required to be undertaken for the purposes of s 96(2)(a): The requisite factual finding obviously requires a comparison between the development, as currently approved, and the development as proposed to be modified. The result of the comparison must be a finding that the modified development is " essentially or materially "" the same as the (currently) approved development. The comparative task does not merely involve a comparison of the physical features or components of the development as currently approved and modified where that comparative exercise is undertaken in some type of sterile vacuum. Rather, the comparison involves an appreciation, qualitative, as well as quantitative, of the developments being compared in their proper contexts (including the circumstances in which the development consent was granted).

In the present case, the sole difference yielded by the relevant comparison is the exception provided on two specified days each year to the general limitation on the use to be made of the carpark area.

Does this difference necessarily mean that the compared developments are not "substantially the same" developments?

In my judgment and notwithstanding Mr Marler's opinion, the primary facts "reasonably admit of different conclusions" as to whether the compared developments are "substantially the same" and it therefore becomes ultimately necessary "to decide which is the correct conclusion - this being a question of fact": see the judgment of Kitto J in NSW Associated Blue-Metal Quarries Ltd v Federal Commissioner of Taxation (1956) 94 CLR 509 at 512 cited with approval by Mason J in Hope v Bathurst City Council at pp 7 - 8.

For all the foregoing reasons, I must determine the question of law raised by the Council in the negative by holding that the question whether the compared developments are "substantially the same" developments reasonably admits of different conclusions and that the ultimate decision as to which conclusion is correct is a finding of fact.

It may be that in the light of those reasons for judgment, the parties may reconsider their respective positions.

For example, the Council may seek a determination as a preliminary matter of the ultimate factual question posed by the EP&A Act s 96(2)(a). On the other hand, the Applicant may decide to obtain any requisite development consent for the proposed non-parking use of the hotel carpark by making a development application in addition to or supplementary to its current modification application, which in any event will require assessment under the EP&A Act s 79C of the existing development as it is proposed to be modified: see Michael Standley at 441 per Mason P.

For all the foregoing reasons, the Council's Amended Notice of Motion must be dismissed and I so order.

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30. However, this legal theorem simply does not fit the facts of the present case as I have stated them, because it is clear that it is the existence of condition 5.4 imposed upon the grant of the development consent, that constitutes a bar upon the non-carparking use of the roofed carpark area that is proposed by Applicant on the two specified days each year.

31. The Applicant, correctly in my opinion, recognised Condition 5.4 of the development consent, as being a relevant source of prohibition, when it stated in the supporting Statement of Environmental Effects:

In years past, the Hotel has conducted similar functions on what was, formerly, its open air carpark. On these occasions, a large marquee was erected to house the functions. At those times, the hotel was not subject of any consent which prevented that being done.

By imposing Condition 5.4....the Council for the first time - exercised control over the use of the carparking area and thereby, in effect, prevented these annual events being held.

32. In these proceedings, the Applicant has not sought to challenge the validity of the condition. (In making this observation, I am not suggesting that it is legally impugnable.) Rather, it has accepted the existence of the condition, perceived its effect to be a legal bar to the proposed non-carparking use of the roofed carpark area on the two specified days each year and accordingly has sought by the modification application to remove the legal bar to that proposed use. In so acting, the Applicant's conduct has been unexceptional.

33. It is true that instead of seeking a modification of the development consent, the Applicant could have sought development consent for the proposed use of the roofed carpark in the manner that was suggested by the Council. However, even if it had taken this alternative action and the result had been the grant of development consent, the Applicant would nonetheless have been confronted with the intractable fact that development consent granted for the carpark roof remained subject to condition 5.4. This fact would be apt to present difficulties for the Applicant in terms of the EP&A Act--eg see s 122 - s 124; s 125.

34. In these circumstances, I can see no justification for the Council's submission that the Applicant's appeal pursuant to the EP&A Act s 96(6) should be summarily dismissed because it is seeking a result (namely the grant of development consent for the use on the two specified days each year of the roofed carpark for a non-carparking purpose) by an impermissible means (namely the modification of a development consent that only granted consent for the erection of the roof to the carpark).

35. Rather, when the facts are properly analysed, as I have endeavoured to demonstrate, the Applicant is seeking the modification of the development consent in order to remove the legal bar that was created by the imposition of condition 5.4 to the proposed use of the roofed carpark on two specified days each year for a non-carparking purpose.

36. However, it is quite a different question whether the result of the modification application process, is the grant of development consent to so use the roofed carpark area on the two specified days each year. With respect, I think that the Council's argument has overlooked this vital difference.

37. It is one thing for a modification application to seek to remove a restriction on the use of the land that exists by virtue of a condition imposed upon the grant of development consent for the erection of a roof over the carpark area, it is a different think to conclude that the removal of that restriction is tantamount to the grant of development consent sanctioning the proposed use.

38. The Council's argument has failed to distinguish between the different sources of potential prohibition on the proposed use--namely (i) condition 5.4 of the development consent; and (ii) the EP&A Act s 76B prohibiting the carrying out of specified development (eg for hotel purposes) subject to other provisions of the Act eg the "existing use" provisions contained in Div 10 Pt 4. It has likewise failed to fully appreciate that the grant of a modification application is not tantamount to granting development consent: vide s 96(4). This last mentioned conclusion is not at odds with earlier decisions which have recognised that a modified development consent may legitimately overcome the prohibition on development now contained in the EP&A Act s 76B--see Valhalla Cinemas Pty Ltd v Leichhardt Municipal Council (1986) 60 LGRA 240 and North Sydney Council v Michael Standley and Associates Pty Ltd [1998] NSWSC 163; (1998) 97 LGERA 433.

39. In the present case, what must not be overlooked is the fact that the development consent sanctioned the erection of a building, namely the roof over an existing hotel carpark and that consent was subject to a condition (Condition 5.4) limiting the use of the land upon which the building was erected to carparking purposes.

40. Accordingly, any modification of that condition does not and cannot result in the grant of development consent to anything more than that which was approved by the development consent, namely the roof over the hotel carpark.

41. For all the foregoing reasons, the Council's Motion for summary dismissal of the proceedings must be dismissed.

E. THE COMPETING ARGUMENTS ON THE QUESTION OF LAW WHETHER THE MODIFIED CONSENT IS FOR SUBSTANTIALLY THE SAME DEVELOPMENT AS WAS ORIGINALLY CONSENTED TO

42. As earlier noted, the Applicant did not oppose the Court entertaining the Council's claim to alternative relief, provided that the question was determined solely as a question of law.

43. The Council could not be heard to complain about the limited nature of the Court's preliminary determination for two reasons--firstly, the alternative claim had not been included in the Council's original Notice of Motion which had been confined to the Council's claim for summary dismissal of the proceedings and secondly, when the Council filed its Amended Notice of Motion, it propounded the question for preliminary determination as a question of law.

44. It is, I think, unfortunate that the Court has not been allowed to wholly determine the question because as I pointed out in Moto Projects (No 2) Pty Ltd v North Sydney Council [1999] NSWLEC 280; (1999) 106 LGERA 298 at 309:

The relevant satisfaction required by s 96(2)(a) to be found to exist in order that the modification power be available involves an ultimate finding of fact based upon the primary facts found.

45. Accordingly, being limited to a determination of a question of law, the relevant question in the present case comes down to the following (cf Hope v Bathurst City Council [1980] HCA 16; (1980) 144 CLR 1 at 10; Australian Gas Light Co v Valuer General (1940) 40 SR (NSW) 126 at 138; Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 156.

Are the primary facts necessarily outside the statutory condition stipulated in s 96(2)(a)?

46. To recapitulate the relevant primary facts, they are as follows:

(i.) the development in respect of which the consent was originally granted was the erection of a roof over the existing hotel carpark subject to the condition that the existing carparking area be used only for the parking of the hotel staff and patrons' cars and hotel delivery vehicles;

(ii.) the development, in respect of which the modified consent is to be granted, is the same building subject to the same condition on the use of the carparking area except for use for different purposes connected with the hotel on two days per year (namely, Anzac Day and Melbourne Cup day).

47. Can it be fairly said of these primary facts that they necessarily fall outside of the statutory condition. That is, can it be fairly said that the development in respect of which the modified consent is granted is necessarily not "substantially the same development as the development for which the consent was originally granted".

48. In Moto I discussed in the following passages at 309 the nature of the comparative task required to be undertaken for the purposes of s 96(2)(a):

The requisite factual finding obviously requires a comparison between the development, as currently approved, and the development as proposed to be modified. The result of the comparison must be a finding that the modified development is "essentially or materially"" the same as the (currently) approved development.

The comparative task does not merely involve a comparison of the physical features or components of the development as currently approved and modified where that comparative exercise is undertaken in some type of sterile vacuum. Rather, the comparison involves an appreciation, qualitative, as well as quantitative, of the developments being compared in their proper contexts (including the circumstances in which the development consent was granted).

49. In the present case, the sole difference yielded by the relevant comparison is the exception provided on two specified days each year to the general limitation on the use to be made of the carpark area.

50. Does this difference necessarily mean that the compared developments are not "substantially the same" developments?

51. In my judgment and notwithstanding Mr Marler's opinion, the primary facts "reasonably admit of different conclusions" as to whether the compared developments are "substantially the same" and it therefore becomes ultimately necessary "to decide which is the correct conclusion--this being a question of fact": see the judgment of Kitto J in NSW Associated Blue-Metal Quarries Ltd v Federal Commissioner of Taxation [1956] HCA 80; (1956) 94 CLR 509 at 512 cited with approval by Mason J in Hope v Bathurst City Council at pp 7 - 8.

52. For all the foregoing reasons, I must determine the question of law raised by the Council in the negative by holding that the question whether the compared developments are "substantially the same" developments reasonably admits of different conclusions and that the ultimate decision as to which conclusion is correct is a finding of fact.

53. It may be that in the light of those reasons for judgment, the parties may reconsider their respective positions.

54. For example, the Council may seek a determination as a preliminary matter of the ultimate factual question posed by the EP&A Act s 96(2)(a). On the other hand, the Applicant may decide to obtain any requisite development consent for the proposed non-parking use of the hotel carpark by making a development application in addition to or supplementary to its current modification application, which in any event will require assessment under the EP&A Act s 79C of the existing development as it is proposed to be modified: see Michael Standley at 441 per Mason P.

55. For all the foregoing reasons, the Council's Amended Notice of Motion must be dismissed and I so order.