Greg Young v Parramatta City Council

JUDGMENT Jagot J: Introduction

This is an application under s 96(2) of the Environmental Planning and Assessment Act 1979 ("EPA Act") to modify a development consent granted by the Court. The Court granted development consent on 24 May 2004 (subject to conditions) for "demolition of certain structures, for alterations and additions to the existing dwelling and for the construction of a new dwelling at 43 Wyralla Avenue, Epping". The source of permissibility for the grant of that consent was State Environmental Planning Policy No 5 - Housing for Older People or People with a Disability ("SEPP 5").
On 30 November 2005, the applicant filed an application to modify the development consent. The application seeks approval to modify the consent by "subdivision of land (Lot 1 DP 6610) by Torrens Title."
Parramatta City Council ("the Council") filed a "preliminary question of law" on 27 January 2006 as follows: Whether the development to which the consent to be modified relates is substantially the same development as the development for which the consent was originally granted.
This is a reference to s 96(2) of the EPA Act which, insofar as relevant, provides that: A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the consent authority and subject to and in accordance with the regulations, modify the consent if: (a) it is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted and before that consent as originally granted was modified (if at all), and (b) .… Separate Question?
The question posed by the Council is not a question of law. It is a question of fact. The appropriate procedure for separation of any such question is by application for separate determination under Pt 31 r 2 of the Supreme Court Rules 1970, which is incorporated into the Land and Environment Court Rules 1996 by Pt 6 r 1. Part 31 r 2 provides that: The Court may make orders for: (a) the decision of any question separately from any other question, whether before, at or after any trial or further trial in the proceedings; and (b) the statement of a case and the question for decision."
I summarised the principles applicable to making orders with respect to separate questions in Metropolitan Local Aboriginal Land Council v Minister Administering the Crown Lands Act [2006] NSWLEC 57 at [12]. Those principles bear repetition: 12 …. (1) Generally speaking, all issues should be tried at the same time ( Tallglen Pty Ltd v Pay TV Holdings Pty Ltd (1996) 22 ACSR 130 at 141-142). If an issue of law or fact is raised which, if decided in one way, will dispose of the claim then a separate determination of that issue may be appropriate. There is no requirement that the issue sought to be separated be decisive whichever way it is answered. ( Carl-Zeiss-Stiftung v Herbert Smith and Co [1968] 2 All ER 1002 at 1004). (2) Care must be taken to ensure that any such question is "ripe" for separate and preliminary determination. This will be so where the matter "is a central issue in contention between the parties, the resolution of which will either obviate the necessity of litigation altogether or substantially narrow the field of controversy" ( CBS Productions Pty Ltd v O'Neill (1985) 1 NSWLR 601 at 606 C-D). (3) Where the issue sought to be separated involves a question of law, there should be " a clear definition of what the point of law raised is" ( National Real Estate and Finance Co Ltd v Hassan [1939] 2 KB 61 at 77) and the facts upon which that question has to be considered should be "clearly ascertainable" ( Radstock Co-operative Industrial Society v Norton-Radstock Urban District Council [1968] 1 Ch. 605 at 632, referred to in Delbant Pty Limited v North Sydney Council [2005] NSWLEC 657 at [9] to [12]). (4) It has been said that "special problems" can arise where the question sought to be separated is one of mixed fact and law: - As Brooking J pointed out in Jacobson v Ross, it is necessary in that situation that there be precision both in formulating the question and in specifying the facts upon which it is to be decided. His Honour added: "Care must be taken to ensure that, in one way or another, all the facts that are on any fairly arguable view relevant to the determination of the question are ascertainable ... as facts assumed to be correct for the purposes of the preliminary determination, or as facts which both sides accept as correct, or as facts which are to be judicially determined. Failure to do this, and in particular failure to perceive that the facts alleged in a pleading are some only of the facts relevant to the determination of the preliminary question, may make the order for preliminary determination unfruitful." Quite apart from rendering the "order for preliminary determination unfruitful", the failure to identify the relevant facts or the means by which they are to be ascertained may result in procedures which do not conform to the judicial process. ( Bass v Permanent Trustee Co Ltd & Ors (1999) 198 CLR 334 at [53] per Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ). (5) In order to dispose of what may first appear to be a pure question of law, the inquiry might "range round questions of fact and the proper inferences to be drawn from the primary facts" ( Rogers v Baillieu Bullock Wilkinson Pty Ltd (1981) 28 SASR 594 at 599 per Walters J). Hence, it should be able to be seen "with clarity" that the determination of the separate question will be beneficial to the conduct of the proceedings and resolution of the dispute ( Tallglen Pty Ltd v Pay TV Holdings Pty Ltd (1996) 22 ACSR 130 at 142. See also the observation of Young CJ in Eq in Strathfield Municipal Council v Poynting (2001) 116 LGERA 319 at 345 that "… separate questions should only be posed when there is a critical matter which if dealt with in a preliminary hearing will far more likely than not be convenient and save significant expense" and of Giles JA in the same matter at 325). Absent that clarity, an "obvious danger with quarantining what are claimed to be the only relevant facts is that others may later turn out to be relevant. Then the court is in danger of impermissibly exceeding its proper judicial function, by deciding hypothetical rather than real questions in reliance on incomplete facts or facts not all found or agreed" (Allstate Explorations NL and Ors v Beaconsfield Gold NL and Ors [1999] NSWSC 832 at [24] . See also Rogers v Baillieu Bullock Wilkinson Pty Ltd (1981) 28 SASR 594 at 599-600 ).
To that summary of principles I will now add reference to the decision of the Full Court of the Federal Court in Save the Ridge Inc v Commonwealth (2005) 142 LGERA 18 at [15] to [17] per Black CJ and Moore J. At [15] their Honours said: Before considering whether the learned primary judge erred in answering the questions as he did it is desirable to say something about the procedure itself. The formulation of separate or preliminary questions is authorised by O 29, r 2 of the Federal Court Rules (Cth). But it is a procedure that should be adopted with caution and can be fraught with difficulties. Principles guiding the adoption of the procedure have been recently discussed by a Full Court in Rainsford v Victoria [2005] FCAFC 163 , by Sackville J in Direct Factory Outlets Homebush Pty Ltd v Property Council of Australia Ltd [2005] FCA 1002 and by Kenny J in Soufflet Beheer v AWB Ltd [2004] FCA 518, in which her Honour draws on the judgment of Branson J in Reading Australia Pty Ltd v Australian Mutual Provident Society [1999] FCA 718; see also Director of Fisheries (NT) v Arnhem Land Aboriginal Land Trust (2001) 109 FCR 488 at [131]-[141] and SmithKline Beecham (Aust) Pty Ltd v Chipman [2002] FCA 674 at [35]-[41]. The present case illustrates some of the difficulties.
In Direct Factory Outlets Homebush Pty Ltd v Property Council of Australia Ltd [2005] FCA 1002, Sackville J referred to the warning given by Kirby and Callinan JJ in Tepko Pty Limited and Others v Water Board (2001) 206 CLR 1, a decision to which I also referred in Metropolitan Local Aboriginal Land Council v The Minister Administering the Crown Lands Act at [14].
The observations of Sackville J in Direct Factory Outlets Homebush at [2] - [4] are important and apply with equal force in this Court: 2 In recent times, repeated reminders have been given of the dangers that attend the making of orders for the separate trial of particular questions or issues that arise (or are thought to arise) in proceedings. In Tepko Pty Ltd v Water Board (2001) 206 CLR 1, Kirby and Callinan JJ (who dissented on the main issue) warned (at [168]) that the: 'attractions of trials of issues rather than of cases in their totality, are often more chimerical than real. Common experience demonstrates that savings in time and expense are often illusory...' Their Honours pointed out that the dangers of a trial of separate issues include the potential for interlocutory appeals delaying final determination of the proceedings. For this and other reasons they expressed the view (at [170]) that: '[s]ingle-issue trials should ... only be embarked upon when their utility, economy and fairness to the parties are beyond question'. 3 The dangers of a separate trial of particular questions are illustrated by numerous cases in which orders for the determination of separate questions have effectively miscarried. Examples include Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334 (where the High Court set aside declarations that were not based on facts found by a court); Director of Fisheries (Northern Territory) v Arnhem Land Aboriginal Land Trust (2001) 109 FCR 488 (where the answers to separate questions concerning the construction and effect of legislation were held not to resolve the factual dispute between the parties); Harts Australia Ltd v Commissioner of Taxation (2001) 109 FCR 405 (where the terms on which the parties reached agreement as to the facts meant that no conclusive or final decision could be made on the basis of those facts); and Kockums AB v Commonwealth [2002] FCAFC 138 (where the questions in effect sought advisory opinions as to future events). 4 This is by no means to say that an order pursuant to O 29 r 2 should never be made, nor that such an order cannot assist in achieving the expeditious and inexpensive resolution of litigation. There are circumstances, for example, in which the answers to separate questions will quell a legal controversy between the parties and the use of the procedure provided by O 29 r 2 is likely to contribute to a significant saving of time and cost: Reading Australia Pty Ltd v Australian Mutual Providence Society [1999] FCA 718, at [8], per Branson J. But an application for the determination of separate questions should be treated with some caution.
Similar cautionary observations were made in McLoughlin v Jones [2002] 2 WLR 1279 at [61] to [67], where the hearing of a preliminary issue was held on appeal to have miscarried.
A number of the decisions referred to above identify the appropriate degree of confidence (that the procedure will be fair and involve real savings in time and cost) to warrant the making of an order for separate determination. In Tallglen, the criterion was described as one where the beneficial results should be able to be seen "with clarity". In Poynting, the formula adopted was that the procedure ought "far more likely than not be convenient and save significant expense". In Tepko, the standard identified as appropriate was that the "utility, economy and fairness to the parties" of the making of the order ought to be "beyond question".
These principles apply in the civil jurisdiction of this Court. They are an aspect of the overriding purpose of the rules of the Court and the duty imposed on parties to civil proceedings and the legal practitioners representing those parties. Part 1 r 5A of the Land and Environment Court Rules 1996 provides as follows: (1) The overriding purpose of these rules in their application to civil proceedings is to facilitate the just, quick and cheap resolution of the real issues in such proceedings. (2) The Court must seek to give effect to the overriding purpose when it exercises any power given to it by the rules or when interpreting any rule. (3) A party to civil proceedings is under a duty to assist the Court to further the overriding purpose and to that effect to participate in the processes of the Court and to comply with directions and orders of the Court. (4) A solicitor or barrister shall not by his or her conduct cause his or her client to be put in breach of the duty identified in (3). (5) The Court may take into account any failure to comply with (3) or (4) in exercising a discretion with respect to costs.
In an appeal under s 96(6), s 96(2)(a) of the EPA Act raises a question of fact for determination. In many (I would expect, most) cases, resolving that factual question in part depends upon or is affected by the resolution of other factual issues in the proceedings (that is, those issues generally referred to under the rubric the "merits" of the application).
As such, the general principle that all issues should be tried at the same time applies with particular force to appeals against the refusal or deemed refusal of modification applications. It will be an unusual case in which the utility, economy and fairness to the parties of determining the issue posed by s 96(2)(a) separately from all or any other issues in the appeal is "beyond question". In most cases it is likely that that issue may or should only be resolved as part of the substantive determination of the modification application itself.
The reasons for this are that: (1) Determining the s 96(2)(a) factual matter in most cases is likely to involve consideration of the broader factual context of the application, and may require findings of fact to be made which may only be made in the broader factual context. (2) Even if the making of factual findings in the broader context set by consideration of the application as a whole is not essential to resolving the issue posed by s 96(2)(a), those findings may nevertheless interact with and influence the resolution of that issue. (3) Section 96 does not operate on the assumption that the issue posed by s 96(2)(a) will be resolved in a vacuum, isolated from the resolution of the issues of fact to which the section as a whole gives rise.
The decision in Fernance Family Holdings Pty Ltd v Newcastle City Council (2000) 110 LGERA 67 at 74-75 discloses the difficulties inherent in attempting to articulate a question of law with respect to the operation of s 96(2)(a) in an appeal under s 96(6). In such an appeal, the Court may exercise the functions of the consent authority in respect of the matter the subject of the appeal (s 39(2) of the Land and Environment Court Act 1979). Where, however, the Court is constrained to ask itself a question of law, the question which may be asked (that is, whether the facts as found are necessarily outside the statutory condition stipulated in the section), bears no resemblance to the function the Court is empowered to perform by s 39(2) of the Land and Environment Court Act 1979. It is difficult to see any utility or economy in answering that question of law when the Court is able to exercise the function of deciding whether, in fact, 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)". To permit separation of the question of law in those circumstances is likely to be contrary to the overriding purpose of the Land and Environment Court Rules 1996 (Pt 1 r 5A).
For these reasons, I informed the parties that I was not prepared to deal with the question of law as framed by the Council. First, as framed, the Council's question was not a question of law (but of fact). Secondly, as framed, the question excluded reference to the (important) statutory stipulation "…it is satisfied that …". Thirdly, if re-cast as a question of law, any answer to the question would have no utility (and thus would not be consistent with the overriding purpose of the Land and Environment Court Rules 1996 as set out in Pt 1 r 5A).
The Council thus re-cast its question as one of fact and law and indicated that it wished to seek separate determination of that question under Pt 31 r 2 of the Supreme Court Rules. The re-cast question was as follows: Whether the Court could be or is satisfied that the development to which the consent to be modified relates is substantially the same development as the development for which the consent was originally granted.
The Council submitted that this question was appropriate for separate determination because: (1) The development for which consent had been granted was a SEPP 5 development for alterations and additions to an existing dwelling and construction of a new dwelling. (2) The modification application sought approval for the Torrens Title subdivision of the two dwellings. (3) The Court could find all facts relevant to the resolution of the question in the separate hearing. (4) There could be no interaction between those facts and the facts relevant to any merits determination of the modification application. (5) There would be other merit issues for resolution if the Council were unsuccessful; hence, determining the separate question had a clear prospect of reducing the length of time involved, and the expense to be incurred, in the resolution of the dispute between the Council and the applicant.
Mr Young, the applicant, agreed that all facts relevant to the resolution of the question could be identified and resolved in the separate hearing. Neither party, moreover, could identify any possible interaction between the facts relevant to resolution of the question and resolution of the overall merits of the application.
Although the question as re-cast by the Council retained an issue of law (the reference to whether the Court "could" be satisfied of the relevant matter), I consider that part of the question to be superfluous as both parties agreed that there was no impediment to me determining the factual question. I am satisfied that this is a case (albeit unusual) where the utility, economy and fairness to the parties in resolving the separate issue is beyond question as: - (i) the re-cast question raises in terms the factual determination required by s 96(2)(a), (ii) I am satisfied (and the parties agreed) that all facts necessary for resolution of that factual question are able to be found by me in the separate hearing, (iii) I am satisfied (and the parties agreed) that the factual findings I will be required to make in the separate hearing, given the nature of the development and the modification application in this case, will not potentially depend upon or interact with factual findings which could only be made in the overall hearing on the merits of the modification application, and (iv) I am satisfied that there are merit issues which would otherwise require resolution - hence, determination of the separate question is capable of being decisive of the matter.
Hence, I made the necessary order under Pt 31 r 2 that the re-cast question be determined separately. The four criteria which I have identified above appear to me to be the minimum requirement before separate determination of the s 96(2)(a) issue could accord with the principles which I have identified. Other criteria may also need to be satisfied in any given case depending on the facts. If these criteria had not been met, I would have declined to make the order permitting separate determination and would have required the matter to proceed to hearing in the ordinary course on all issues.
The final observation that I will make in this respect is that it is the responsibility of all parties in civil proceedings that seek to raise a separate or preliminary question, to identify whether the question is appropriate for separate determination. Careful consideration needs to be given to the terms of the question sought to be raised and whether separate determination of that question will accord with the principles discussed above and the obligations of the parties set out in Pt 1 r 5A of the Land and Environment Court Rules 1996. If separation of the question accords with those principles, then the making of an application for separate determination is appropriate and will itself further the overriding purpose of the just, quick and cheap resolution of the real issues in the proceedings. Submissions
Mr Galasso (on behalf of the Council) submits that, in exercising the function of the consent authority, I cannot be and in fact should not be, satisfied that the development to which the consent as modified relates is substantially the same development as the development for which the consent was granted. The Council says that: (1) The development for which consent was granted did not include subdivision. (2) The words in s 96(2)(a) turn on the concept of "the development". "Development" is defined in s 4(1) of the EPA Act in a manner that incorporates separate classes or types of actions (uses, works, erection of buildings, subdivision). (3) Subdivision is a separate class or type of development from the erection of buildings and the use of land. See Hillpalm Pty Limited v Heaven's Door Pty Limited (2004) 220 CLR 472 at [42]. Indeed, types of subdivision may themselves be substantially different from one another (referring to Ben-Menashe v Ku-ring-gai Municipal Council (2001) 115 LGERA 181 at 183 per Lloyd J, albeit a decision in a different context). (4) Hence, seeking to modify a consent by adding the development type subdivision could not and did not meet the statutory stipulation in s 96(2)(a) which required the essence of the development to remain the same (referring to Vacik Pty Limited v Penrith City Council unreported, Stein J, 10242 of 1991, 24 February 1992) cited with approval in North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468 at 475B).
The applicant submits that, although his development application did not seek consent for subdivision, the separate use and occupation or de facto partitioning of the property was one of the central issues in the proceedings before Commissioner Nott. The applicant relies in particular on Commissioner Nott's reasons for decision at [3], [7], [41], [42] and [44]. I quote parts of [42] and [44] of the Commissioner's reasons so these submissions may be understood: 42. In relation to the council's objection to a new dwelling in the rear yard of the subject land, the provisions relating to subdivision in the heritage DCP are indirectly relevant, insofar as subdivision is usually one way of providing two dwellings on a parcel of land that originally had only one house. Of course, in the present case the application does not involve a formal subdivision, but there is a de facto subdivision inasmuch as the cottage and the proposed new house will each be on its own curtilage with a fence separating them. Clause 3.5.1 of the heritage DCP, states: "In those areas where the pattern of development is not part of the heritage significance of the place, new buildings at the rear of old buildings might be approved if they can be designed and sited successfully so that they do not disrupt the streetscape, affect the setting of the heritage item or destroy the amenity of the area." … 44. It is important to distinguish the present application from the instances that have been given in the DCP. Certainly, there is no longitudinal subdivision of an existing lot, which according to the DCP is plainly unacceptable. Indeed, there is no subdivision proposed at all. Nor does the proposed development involve even the creation of a battleaxe handle within an existing lot, which, on one view of the DCP, would be acceptable. Immediately adjacent to the western boundary and outside of the subject land (as well as outside the boundary of the conservation area), a right of carriageway already exists in favour of the subject land and Nos 45A and 45B. As a result, in order to provide access to the proposed rear dwelling, there will be no change to the subdivision pattern that is visible from the street; there will be no need to create an access handle within the subject land. The use of the presently available access to the rear part of the subject land would not interfere with the front cottage or its curtilage.
The applicant submits that, because the definition of subdivision in s 4B of the EPA Act includes the division of land by any instrument (see s 4B(1)(b)), the reasons for decision of the Commissioner should be seen as an instrument which, in substance, effected the subdivision of this land. "Instrument", submits the applicant, takes its ordinary meaning of, relevantly, "a thing with or by which something is effected" (Macquarie Dictionary revised 3rd edition). Hence, the modification application seeks to make formal that which had already been effected in substance.
The applicant also refers to the decision in Blair v Curran (1939) 62 CLR 464 at 510 to support a submission that the Commissioner's reasons are conclusive evidence of the fact of that decision having been made and (as I understand it) of de facto subdivision having been effected.
Finally, the applicant refers to the phrasing of cl 18 of SEPP 5 to support his submissions. As I understand it, the applicant says that cl 18 required the grant of consent to the erection of the buildings, before subdivision. This may or may not be correct. Either way, it does not appear to me to advance any aspect of the applicant's argument. Conclusion
I do not accept the applicant's submission that the reasons for decision of Commissioner Nott effected a subdivision of the land. The Commissioner's reasons explained the grounds for the orders made, being orders by which the appeal was upheld and development consent granted to the application for "demolition of certain structures, for alterations and additions to the existing dwelling and for the construction of a new dwelling at 43 Wyralla Avenue, Epping".
The question whether (and to what extent) the doctrines of res judicata and issue estoppel can arise on a decision of an administrative character has been considered in a number of different contexts (see, for example, Lambidis v Commissioner of Police (1995) 37 NSWLR 320, Commonwealth v Sciacca (1988) 17 FCR 476 at 480, Comcare v Grimes (1994) 50 FCR 60, Minister for Immigration and Ethnic Affairs v Daniele (1981) 5 ALD 135; 39 ALR 649; 61 FLR 354 at 359, Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 21 FCR 193 at 219 and, in the context of planning decisions, Russo v Kogarah Municipal Council (1999) 105 LGERA 290 at 293, Young v Parramatta City Council (2002) 124 LGERA 361 at 366, Mirvac Homes Pty Ltd v Parramatta City Council (2000) 111 LGERA 233 and Lean v Ku-ring-gai Council [1998] NSWLEC 226 and the cases cited therein).
There is no need for me to consider the manner in which the doctrines of res judicata and issue estoppel might apply in this matter. As Bowen CJ, Sheppard and Morling JJ observed in Commonwealth v Sciacca (1988) 17 FCR 476 at 478: An issue estoppel will only arise in relation to what Dixon J (as he then was) described in Blair v Curran (1939) 62 CLR 464 at 532 as "those ultimate facts which form the ingredients in the cause of action, that is, the title to the right established".
The development application determined by the Commissioner did not include an application for consent to subdivide. That fact is clear from [42] and [44] of the Commissioner's reasons. I consider that the reference to "de facto subdivision" in [42] of the Commissioner's reasons is nothing more than a convenient shorthand identifying the way in which the Commissioner approached the assessment of the merits of the application which in fact was before him (that is, an application to erect and use buildings, not to subdivide land). The order, granting development consent, did not include consent to subdivide the land into two lots; subdivision was not an "ingredient" in the applicant's development application at all.
Mr Galasso referred me to the decisions in Masterton Homes Pty Ltd v Pittwater Council (2003) 124 LGERA 216, Monnock v Pittwater Council (2003) 127 LGERA 66 and 1643 Pittwater Road Pty Ltd v Pittwater Council [2004] NSWLEC 685 as potentially relevant to this issue. These cases concerned whether company title arrangements comprised subdivision within the meaning of s 4B of the EPA Act and the applicable provisions of the local environmental plan in that case. Section 4B (relevantly) provides that: ( 1) For the purposes of this Act, subdivision of land means the division of land into two or more parts that, after the division, would be obviously adapted for separate occupation, use or disposition. The division may (but need not) be effected: (a) by conveyance, transfer or partition, or (b) by any agreement, dealing, plan or instrument rendering different parts of the land available for separate occupation, use or disposition.
In Masterton Homes at 224-225, Bignold J refers to dual occupancy development as dividing land into two parts that (after the division) would be obviously adapted for separate occupation or use. His Honour characterised the company title arrangement as one that would result in a division rendering the land "obviously adapted for separate disposition" (as opposed to separate occupation or use), being itself a "subdivision" of land regulated by the environmental planning instrument. Read in context, I do not consider that the decision in Masterton Homes provides any support for this aspect of the applicant's argument. Nor, for that matter, do the decisions in Monnock or 1643 Pittwater Road.
Hence, the relevant facts upon which the separate question must be determined are that development consent was granted for "the demolition of certain structures for alterations and addition to the existing dwelling and for the construction of a new dwelling at 43 Wyralla Avenue Epping" subject to conditions. The applicant seeks to modify that consent by obtaining approval for the Torrens Title subdivision of the land to which the consent relates, being a Torrens Title subdivision into two lots.
In Vacik Stein J said that "substantially" (in the same context) meant "essentially or materially or having the same essence". Further, that the statute calls for a comparison between the before and after situations. Stein J concluded as follows: In approaching the s 102 exercise one should not fall into the trap of saying that the development was for a certain use - extractive industry - and, as amended, it will be for precisely the same use and accordingly is substantially the same development. What is important is that a development, particularly extractive industry, must be assumed to include the way in which the development is to be carried out. Otherwise, there may be little purpose in s 102. Nonetheless, the use of the land consented to is relevant to the assessment to be made under s 102(1)(a). Here an additional and distinct use - that of waste disposal - is to be included in the rehabilitation of the quarry. Waste disposal was never a use consented to by the Council, nor the proposed means of rehabilitation in the consent. The applicant does not submit that waste disposal is a separate use of the land which is incidental or ancillary to the dominant use. It concedes that a separate consent to the use of the land for waste disposal may be required. However, it is submitted that an amendment of the consent is still needed. Be that as it may, it is plain that the acknowledged additional use of waste disposal inherent in the proposed modification of the consent is such as makes the development different from that for which consent was granted. In my opinion it cannot be said to be 'substantially the same development'.
As noted, the test of the modified development "essentially" or "materially" being the same or having the "same essence" was approved in Michael Standley at 475. Mason P also at the same page referred to Sydney City Council v Ilenace Pty Limited (1984) 3 NSWLR 414 (a decision which led to amendment of the modification provisions). In Ilenace at 421 Samuels JA said that: 'Modify' means 'to alter without radical transformation'.
In Moto Projects No 2 Pty Ltd v North Sydney Council (1999) 106 LGERA 298 at 309 Bignold J said: 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. I must be satisfied that the modified development is substantially the same as the originally approved development. 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).
While it is not necessary to resolve the present matter, it is nevertheless appropriate that I observe that I do not accept the Council's submission that, whenever an applicant seeks to add a new development type or class to a development, the application is necessarily incapable of being a modification application. That submission appears to assume that the classes of development as defined in s 4(1) are mutually exclusive when, in reality, the classes may well overlap.
In this case the applicant seeks to add a new component to the development - the Torrens Title subdivision of the land on which the SEPP 5 development is located. The result of the before and after comparison in this case discloses: - (i) in the before situation: - a two dwelling SEPP 5 development on land not obviously adapted for separate disposition (even if obviously adapted for separate occupation and use), and (ii) in the after situation: - a two dwelling SEPP 5 development on land which will be subject to a Torrens Title subdivision and which will be obviously adapted for separate disposition.
I consider that the addition of the new component of subdivision (so as to render the land obviously adapted for separate disposition of each lot) would result in an overall development that is different in its essence from the development for which consent was granted. The addition of the Torrens Title subdivision would result in an overall development radically transformed from the original development. That is, when the two developments are compared in their proper context, I consider that the development to which the consent as modified relates (if modified) would not be substantially the same as the development for which the consent was originally granted.
For these reasons I am not satisfied that the development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted. As such, the necessary consequence is that the appeal must be dismissed and the application to modify the consent granted on 24 May 2004 must be refused. I so order.
The orders of the Court therefore are: (1) The appeal is dismissed. (2) The application to modify the development consent granted by the Court on 24 May 2004 is refused. (3) Exhibits A and B are to be retained on the Court's file. (4) Costs reserved. Costs
The Council, consequent upon the orders that I have just made, has made an application for its costs of the proceedings. The relevant provision under which the application should be determined is Pt 16 r 4 of the Land and Environment Court Rules 1996, subr (2) of which states: No order for the payment of costs will be made in proceedings to which this rule applies unless the Court considers that the making of the costs order is, in the circumstances of the particular case, fair and reasonable.
Preston J recently summarised the principles applicable to the consideration of applications for costs in merit appeals which are subject to the terms of Pt 16 r 4 (Grant v Kiama Municipal Council [2006] NSWLEC 70 at [12] - [15]. At [15], Preston J identified that circumstances which might make a costs order appropriate included: (a) where the proceedings cease to have the character of merits review, such as where a central issue is whether there is power to grant the approval sought at all…but there may be exceptions where no order is appropriate…; (b) where the matter the subject of the costs application involves only a preliminary question of law…but, again there may be exceptions where no order is appropriate….
The Council, in support of its application for costs, refers to a letter dated 12 December 2005 which, on its face, appears to have been sent by the Council to the applicant. That letter points out that a consent can only be modified under s 96 "if the modified consent is substantially the same development as the development for which the consent was originally granted". Further, that an application "to subdivide the land by way of a Torrens Title subdivision is substantially different development to a SEPP 5 consent" and thus is not appropriate to proceed under the provisions of s 96. The Council invited the applicant to discontinue the proceedings and lodge a new development application with the Council for the proposed subdivision. The letter concluded with this paragraph: In the event that you proceed with the current application before the Court, Council shall request its legal advisers to raise as a preliminary issue whether the application has been properly bought [sic] under the provisions of s 96. Council would seek to have its costs paid in any such application.
The applicant submits that there should be no order for costs and that each party should pay its own costs of the proceedings. He notes that the preliminary question that the Council raised was framed as a question of law in circumstances where I have found that the question should have been framed as one of fact. The applicant points out that the matter proceeded today and had the benefit to both parties of avoiding a merits hearing because it resolved the issue and resulted in costs savings to both parties.
The factual question in s 96(2)(a) of the EPA Act is one generally appropriate for resolution as part of the determination of the modification application. I found that it was appropriate in the particular circumstances of this matter to make an order under Pt 31 r 2 to separate this question. I do not consider that the making of that order for separation can render this matter analogous to the circumstances identified in Grant v Kiama as ones which would ordinarily make it fair and reasonable for an order for costs to be made. In particular, it is necessary for the factual issue in s 96(2)(a) to be resolved on all modification applications. It is true that the Council said to the applicant that this application could not be granted approval because it fell outside the terms of s 96(2)(a). While the Council succeeded, it did so on the facts of the particular case and not by reference to any legal principle. Moreover, the applicant agreed to the separation of the Council's re-cast question enabling me to determine the question as one of fact and not law.
Having regard to the nature of the particular question in issue and the circumstances in which the matter proceeded today, I do not consider that it is fair and reasonable in the particular circumstances of this case that there should be an order for costs. Accordingly, I will amend order (4) of the Court's order so that it reads: - "Each party is to pay its own costs of the proceedings".

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