Horseshoe Properties Pty Ltd v Tweed Shire Council

Land and Environment Court (NSW)|2022-06-25

Introduction

COMMISSIONER: In the hinterland of the upper Tweed lies the village of Terranora which has enjoyed increasing residential development for the last 20 years or so, including by virtue of development consent S96/0066 granted on 19 August 1999 (the Original Consent) for a 102 lot subdivision at the land then known as Lot 244 Deposited Plan 851495 Bushranger Road, Terranora (original site), part of what is called the Terranora Village Estate.
It is the Original Consent which has been the subject of some modifications in the past and which is the subject of two modifications now before the Court, identical, but for the source of power sought to be invoked by the Applicant.
On 1 November 2019 the Applicant lodged Modification S96/0066.22 pursuant to s 4.55(1A) of the Environmental Planning and Assessment Act 1979 (EP&A Act). On 1 May 2020 the Applicant lodged Modification S96/0066.23 pursuant to s 4.55(2) of the EP&A Act. As will be shown later, the former application asserted a source of power which required the Council to accept that there was minimal environmental impact as a consequence of the modification. There is no such limitation in the source of power for the later application.
The modification applications are in respect of the land described as Lot 469 in Deposited Plan 1144944 (current site) which is the part of the original site the subject of the proposed modifications. The current site has an area of 51.31 hectares.
Each of the modification applications is deemed to have been refused and the Applicant has appealed pursuant to s 8.9 of the EP&A Act. In this judgment I shall treat the application under s 4.55(2) as the modification under consideration, leaving to one side the question of "minimal impact" which arises under s 4.55(1A).
The modification application in summary seeks to:

amend the residential layout increasing the number of lots by 4, with a change to the road layout and infrastructure provision to service the additional lots; and

The site and surrounds

The subject of the modification application is now Lot 469 in Deposited Plan 1144944 having an area of 51.31 hectares. The land is generally sloping with areas of significant slope, including areas where there has been land slip in the past.
The site and the surrounding area are characterised by a variety of land zonings and established uses. The site has parts which are zoned RU2 Rural Landscape, and RU5 Village pursuant to Tweed Local Environmental Plan 2014 (TLEP 2014) and 1(a) Rural and 7(a) Environmental Protection (Wetlands and Littoral Rainforests) pursuant to Tweed Local Environmental Plan 2000 (TLEP 2000).
The identification and relevance of the particular parts of the site zoned in specified ways is described in the analysis concerning whether the development as proposed to be modified is substantially the same as the Original Consent. It is not otherwise relevant.
The surrounding area is characterised by low density residential dwellings to the south, the as yet undeveloped Area E Urban Release Area to the east, rural large lot residential and a tennis court complex to the west. The site is bounded to the north by Duroby Creek.

The Original Consent

The Original Consent approved the subdivision of Lot 244 DP 851495 which had an area of about 66 hectares. The Notice of Determination described the development as: "101 LOT RESIDENTIAL SUBDIVISION AND OPEN SPACE COMPRISING STAGES 14, 16, 17 AND 18 OF TERRANORA VILLAGE ESTATE"
The Original Consent provided for the following elements:

101 residential allotments (of varying sizes with a total area of about 14 hectares);
6,223 sqm of "structured open space" (Lot 455) to be embellished and dedicated to Council;
"Passive open space" to be dedicated to Council comprised in: -Lot 454 (5.95 hectares) -Lot 399 (1.81 hectares) -Lot 465 (5.331 hectares) -1000 sqm of this open space is to be embellished. -A pathway is to be constructed;
Drainage reserve and retention basin (4383 sq m); and
"Balance" of 37.9 hectares to be in Lot 466.

A significant portion of proposed lot 454 is subject to an existing Easement for Water Services and Easement for Sewage and Drainage. Proposed lot 399 is subject to an existing "Power Easement".
The subdivision layout was consistent with the then operative Tweed Shire Council Development Control Plan No. 1 (TDCP 1) which is described in the Council assessment report as "zoning" the various areas for those uses. It was initially anticipated that the Council and the proponent would enter into a form of planning agreement to provide for the embellishment and dedication of the elements of active and open space (Council resolution 21 May 2019). When this did not eventuate, the Council adopted Section 94 Plan No. 21 - Terranora Village Estate - Open Space and Community Facilities (s 94 Plan) which came into effect on 21 July 1999 (Council report 10 August 1999). The dedications are said to be authorised by the s 94 Plan.
An image of the subdivision approved by the Original Consent follows.

The modification application

The land the subject of the Modification Application is not the whole of the land the subject of the Original Consent, as indicated in [4] above. The current site excludes the land unaffected by the proposed modification, which includes some of the approved residential allotments, the active open space (lot 455), and the open space affected by the easements (lots 399 and 454).
The modification application proposes:

4 additional residential allotments created by a slight rearrangement of some lots and the use of a portion of the previous open space lot 465 (about 8900 sqm) (to bring the total number of allotments to 110);
A road extension in the order of 200m with the creation of a bulb end in contrast to the existing "hammerhead" end to service the additional lots;
The provision of infrastructure to the additional allotments;
The balance of the previous open space lot 465 to be part of the "balance" lot comprising then a total of 37.07 hectares; and
Part of the previous "balance" is to be open space to be dedicated to the Council (lot 535) with an area of 5.331 hectares.

Expressed in another way:

the approved area of open space of 5.331 hectares is "used" as to 8900 sqm for the additional lots and road extension and the rest falls into the "balance" or residual lot;
of the approved "balance" lot, 5.331 hectares is applied to the new location proposed for the open space; that is so the same amount of open space is to be provided as was approved;
the "balance" lot or residual is reduced in area by about 8900 sqm, being the area of that part of the approved open space allocated to the additional lots and road extension. The proposed plan of subdivision is shown below:

I will further analyse the differences between the development as approved in the Original Consent and the proposed development in the Modification Application later in the judgment.

The Issues

The issues identified by the Council are: 1. The development as proposed to be modified is not substantially the same as the development approved in the Original Consent and therefore there is no power to grant the Modification Application. 2. The Modification Application is inconsistent with the Aims of TLEP 2014, but more particularly contrary to certain strategic planning documents including TDCP 2008. 3. The "relocated" open space lot 535 is in an area where the minimum lot size is 40 hectares and is well below that minimum (being 5.331 hectares) and although the subdivision to create an undersized allotment is not prohibited, because this is a modification application rather than a development application, the standard is a relevant consideration and the objectives of the standard are not met. 4. In relation to earthworks: 1. Clause 7.2 of TLEP 2014 should be considered in the merit assessment although it only applies to development applications in its terms; 2. There is insufficient information to determine whether the proposed lots and the road extension can be safely and properly constructed in the absence of further geotechnical investigation; 3. There is insufficient information to determine the actual quantity of earthworks to be carried out and the consequential impacts of the carrying out of the earthworks; 4. The Court cannot be satisfied that the site will be suitable for the proposed use. 1. Suitable vehicular access to the proposed allotments has not been provided. 2. The proposal is inconsistent with certain provisions of TDCP 1 relating to subdivision with respect to landforming, movement network and lot layout. 3. The new location proposed for the open space is inconsistent with TDCP 1 in material respects. 4. Largely for the reasons in other contentions the site is not suitable for the amended development. 5. The Modification is not in the public interest. 6. The Modification Application should be refused because it requires Council to accept the dedication of land that is not suitable for a public reserve and not consistent with its strategic planning.
The first issue raised by the Council is the jurisdictional prerequisite to the exercise of the power to modify a development consent. Accordingly, I will deal with that matter first.

The Statutory context

The power to amend a development consent is found in s 4.55 of the EP&A Act which provides relevantly: 4.55 Modification of consents - generally ……. (1A) Modifications involving minimal environmental impact 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 proposed modification is of minimal environmental impact, and (b) it is 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 and before that consent as originally granted was modified (if at all), and (c) it has notified the application in accordance with - (i) the regulations, if the regulations so require, or (ii) a development control plan, if the consent authority is a council that has made a development control plan that requires the notification or advertising of applications for modification of a development consent, and (d) it has considered any submissions made concerning the proposed modification within any period prescribed by the regulations or provided by the development control plan, as the case may be. Subsections (1), (2) and (5) do not apply to such a modification. (2) Other modifications 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) it has consulted with the relevant Minister, public authority or approval body (within the meaning of Division 4.8) in respect of a condition imposed as a requirement of a concurrence to the consent or in accordance with the general terms of an approval proposed to be granted by the approval body and that Minister, authority or body has not, within 21 days after being consulted, objected to the modification of that consent, and (c) it has notified the application in accordance with - (i) the regulations, if the regulations so require, or (ii) a development control plan, if the consent authority is a council that has made a development control plan that requires the notification or advertising of applications for modification of a development consent, and (d) it has considered any submissions made concerning the proposed modification within the period prescribed by the regulations or provided by the development control plan, as the case may be. Subsections (1) and (1A) do not apply to such a modification. (3) In determining an application for modification of a consent under this section, the consent authority must take into consideration such of the matters referred to in section 4.15(1) as are of relevance to the development the subject of the application. The consent authority must also take into consideration the reasons given by the consent authority for the grant of the consent that is sought to be modified. (4) The modification of a development consent in accordance with this section is taken not to be the granting of development consent under this Part, but a reference in this or any other Act to a development consent includes a reference to a development consent as so modified. ……
The question here is whether I am 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. It is only if I am so satisfied that I have power to modify the Original Consent and then would proceed to consider the merits of the Modification Application.
I should observe that there is no issue that the other precondition to the exercise of the power under subs 4.55(2) - the notification of the Modification Application has been satisfied.

Authorities

Although it is generally accepted that the authorities are clear on how the "substantially the same" test is to be approached, it is worthwhile reviewing the older and more recent authorities.
First the meaning of the word or term "substantially".
In Vacik Pty Ltd v Penrith City Council [1992] NSWLEC 8, at p 2 Stein J interpreted the word "substantially" in the former s 102(1)(a) of the EP&A Act to mean "essentially or materially or having the same essence". That interpretation of the word "substantially" was accepted in North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468 at 475 by Mason P (with whom Sheppard AJA agreed at 403) and at 481-482 by Stein JA and in Moto Projects (No 2) Pty Ltd v North Sydney Council (1999) 106 LGERA 298; [1999] NSWLEC 280 (Moto) by Bignold J at [30] and [55].
It is well settled therefore that "substantially" means essentially or materially or having the same essence. To put that meaning in context then, the test in subs 4.55(2) is that I must be satisfied that the development to which the consent as modified relates is substantially, essentially or materially the same development or having the same essence as the development for which consent was originally granted.
Moto is frequently cited, as it was here, as an elucidation of the comparative task called for in s 4.55(2) of the EP&A Act and its predecessor s 96(2). In Moto Bignold J said: "55. 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. 56. 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).. …………. 58. Qualitatively appreciated, that difference [in access] is in respect of material and essential features of the approved development, that materiality involving the importance attributed to the physical features of the approved development sought to be modified."
It was his Honour's opinion in Moto that the singular point of access was a material and essential feature of the approved development and its change rendered the modified development not substantially the same as the approved development.
I will return to Moto.
The Council submitted that the applicable principles were summarised by Pepper J in Agricultural Equity Investments Pty Ltd v Westlime Pty Ltd (No 3) (Westlime) [2015] NSWLEC 75 in which at [173] her Honour said: "[173] The applicable legal principles governing the exercise of the power contained in s 96(2)(a) [now s 4.55(2)] of the EPAA may be stated as follows: (1) first, the power contained in the provision is to "modify the consent". Originally the power was restricted to modifying the details of the consent but the power was enlarged in 1985 (North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468 at 475 and Scrap Realty Pty Ltd v Botany Bay City Council [2008] NSWLEC 333; (2008) 166 LGERA 342 at [13]). Parliament has therefore "chosen to facilitate the modification of consents, conscious that such modifications may involve beneficial cost savings and/or improvements to amenity" (Michael Standley at 440); (2) the modification power is beneficial and facultative (Michael Standley at 440); (3) the condition precedent to the exercise of the power to modify consents is directed to "the development", making the comparison between the development as modified and the development as originally consented to (Scrap Reality at [16]); (4) the applicant for the modification bears the onus of showing that the modified development is substantially the same as the original development (Vacik Pty Ltd v Penrith City Council [1992] NSWLEC 8); (5) the term "substantially" means "essentially or materially having the same essence" (Vacik endorsed in Michael Standley at 440 and Moto Projects (No 2) Pty Ltd v North Sydney Council [1999] NSWLEC 280; (1999) 106 LGERA 298 at [30]); (6) the formation of the requisite mental state by the consent authority will involve questions of fact and degree which will reasonably admit of different conclusions (Scrap Realty at [19]); (7) the term "modify" means "to alter without radical transformation" (Sydney City Council v Ilenace Pty Ltd [1984] 3 NSWLR 414 at 42, Michael Standley at 474, Scrap Realty at [13] and Moto Projects at [27]); (8) in approaching the comparison exercise "one should not fall into the trap" of stating that because the development was for a certain use and that as amended it will be for precisely the same use, it is substantially the same development. But the use of land will be relevant to the assessment made under s 96(2)(a) (Vacik); (9) the comparative task involves more than a comparison of the physical features or components of the development as currently approved and modified. The comparison should involve a qualitative and quantitative appreciation of the developments in their "proper contexts (including the circumstances in which the development consent was granted)" (Moto Projects at [56]); and (10) a numeric or quantitative evaluation of the modification when compared to the original consent absent any qualitative assessment will be "legally flawed" (Moto Projects at [52])."
I will return to Westlime also, in particular what are said to be principles (9) and (10).
The more recent decision of Preston CJ in Arrage v Inner West Council [2019] NSWLEC 85 (Arrage) is instructive, and a timely reminder that the only "test" to be applied is that in the legislature and it is important not to substitute for the legislative test one from case law. As his Honour observed at [18]: "Judicial decisions interpreting similar or identical legislative provisions may guide, but cannot control, the meaning of the legislative provision to be construed and applied by the court. Judicial decisions are not substitutes for the text of the legislation, although by reason of the doctrine of precedent and the hierarchical nature of the court system, particular courts may be bound to apply the decision of a particular court as to the meaning of legislation: Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority (2008) 233 CLR 259; [2008] HCA 5 at [31]."
Arrage was an appeal from a decision of a Commissioner of the Court pursuant to s 56A of the Land and Environment Court Act 1979. The Appellant argued in Arrage that the Commissioner failed to apply the Moto test and therefore made an error of law. Preston CJ said at [18]: "The "test" the Commissioner was obliged to apply was not some dicta of Bignold J in Moto Projects, but rather the statutory provision of s 4.55(2)(a) of the EPA Act."
Later in dealing with an argument that the Commissioner failed to identify and compare the essential features of the development, approved and modified, his Honour made clear at [26] - [28]: "26. The choice of language in the judicial decisions of "material and essential features" or a "material and essential physical element" of the development (see, for example, Moto Projects at [58], [59] and [64]) derives from judicial interpretations of the statutory test that the modified development be "substantially the same" development as the originally approved development. ….. 27. This interpretation of the statutory test that the modified development be substantially the same development as the originally approved development, that the modified development be "essentially or materially" the same or "having the same essence" as the originally approved development could support an inquiry to identify the material and essential features of the originally approved and modified developments in order to undertake the comparative exercise required, but it does not demand such an inquiry. 28. That is one way, probably in most cases the most instructive way, to identify whether the modified development is substantially the same development as the originally approved development, but it is not the only way to ascertain whether the modified development is substantially (in the sense of essentially or materially) the same development as the originally approved development. For example, comparison could be made of the consequences, such as the environmental impacts, of carrying out the modified development compared to the originally approved development: see Moto Projects at [62] and Tipalea Watson Pty Ltd v Ku-ring-gai Council (2003) 129 LGERA 351; [2003] NSWLEC 253 at [17]." (Emphasis added)
His Honour had observed that if the comparative task was undertaken by the identification of the essential elements then: "24. .. the essential elements are not to be identified "from the circumstances of the grant of the development consent"; they are to be derived from the originally approved and the modified developments. It is the features or components of the originally approved and modified developments that are to be compared in order to assess whether the modified development is substantially the same as the originally approved development."
At [40] Preston CJ cautioned: "40. .. the Commissioner was not legally bound, by s 4.55(2)(a) of the EPA Act, to consider the circumstances in which the development consent was originally granted or the material or essential elements of the original development consent: neither are mandatory relevant matters, such that a failure to consider them is an error of law: see Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-40."
The Appellant in Arrage also argued that the Commissioner erred by failing to consider the provisions of the relevant environmental planning instrument. Preston CJ said at [42] - [44]: "42. It is true that s 4.55(3) requires a consent authority to take into consideration such of the matters in s 4.15(1) of the EPA Act as are of relevance to the development the subject of the modification application and that one of those matters is the applicable environmental planning instruments, which would include in this case MLEP. But that consideration occurs "in determining an application for modification of a consent" under s 4.55. This determination cannot occur unless and until the preconditions in s 4.55(2) have been satisfied, one of which is in s 4.55(2)(a) that the consent authority has formed the positive opinion of satisfaction 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 and before that consent as originally granted was modified (if at all)". The consent authority is therefore not bound by s 4.55(3) to consider the provisions of applicable environmental planning instruments at the stage of determining whether the precondition in s 4.55(2)(a) is met. 43. This is not to say that it would not be permissible for a consent authority to consider the provisions of applicable environmental planning instruments in determining whether the precondition in s 4.55(2)(a) is met, only that the consent authority is not bound in law to do so. There is a difference between a relevant matter that a repository of power is bound to consider and a permissible matter that the repository of power is entitled to consider. 44. In these circumstances, the Commissioner would not err on a question of law by not expressly considering the provisions of MLEP in determining whether he was satisfied of the precondition in s 4.55(2)(a) of the EPA Act." (Emphasis added)
The principles or dicta in Moto and Westlime (items (9) and (10) in the latter) may need a little qualification if they are taken as immutable principles rather than an expression of one or more of the paths which can be taken, but not necessarily must be taken, in the determination of whether the development as proposed to be modified is substantially the same as the development the subject of the original consent.
My approach to determining the question posed by s 4.15(2)(a) includes the following refinements of the dicta in Moto and Westlime:

The Moto approach - to identify the material and essential features of the originally approved and modified developments - is not a mandatory approach but may well be the most useful approach;
Comparing the consequences such as environmental impacts of the original and modified developments is a legitimate approach, though again not a mandatory approach;
It is not mandatory to consider the circumstances in which the original consent was granted, although not necessarily must be eschewed, but if it is appropriate to consider the material and essential features of a development then that task is done by comparing the original and modified developments themselves and not the circumstances in which the original consent was granted;
Reference may be had to the applicable environmental planning instruments (and associated planning documents) although it is not mandatory so to do.

Evidence

Although strictly speaking the question of whether the development as proposed to be modified is substantially the same as the development the subject of the original consent is not a matter for expert planning opinion, the parties retained expert planners who expressed their opinions. (I shall hereafter refer to the statutory test by the phrase "substantially the same" or the "substantially the same test" for convenience.)
The Applicant retained Mr M Pepping and the Council retained Mr M Svikis to assist the Court in planning matters. The planners prepared a comprehensive joint report (PJR) and gave short oral evidence, but the latter not on the question of substantially the same.
Mr Pepping says that:

The Original Consent provided for part rural village and part open space and the modified development "maintains these land uses generally in the same ratio" (PJR [19]).
The current approved number of allotments is 106 and the modification increases only by 4 to 110 allotments with a slightly extended cul-de-sac in the same location so that "overall the proposed residential subdivision remains substantially the same as originally approved" (PJR [20]).
The "relocation of allotment 535 to another site within the overall site still maintains the provision of a formal public reserve of the same size within the development as originally approved which remains accessible to the residents of the estate consistent with the objectives for the provisions of public open space as prescribed by Tweed Shire Council under TSC Development Control Plan 2008" (PJR [21]).
There is no alternate use of the land formerly the open space and therefore there is no material change to the intent of the use of the land.

Mr Svikis on the other hand says that a quantitative and qualitative assessment demonstrates that the proposal is not substantially the same. He says:

The original subdivision was for 101 lots and the modification will result in 110 lots, an 8.9% increase in lot yield. If looked at in terms of the stage of which the additional lots form part (stage 17C) then the increase is 26.6%.
The land area affected by the modification is 10.662 hectares (5.331 x 2) which is 16.1% of the 66.2 hectares of the "parent" lot.
The qualitative evidence is that the shifting of the proposed public reserve is to a site with different physical and ecological features.
Landowners who are presently immediately adjacent to the approved open space will be at least 600m away after modification.
The proposed location of the open space (now lot 535) is not substantially the same as the approved location.

Submissions

The Applicant submitted that the relocation of the open space/reserve is the real issue as the increase in lots and the road extension are very minor matters in the scheme of the subdivision. It was submitted that location of the open space was not of itself an essential element of the subdivision.
It was the useability of the open space the Applicant submitted which was the characteristic desired at the time of the Original Consent and the new location better fulfilled that objective. The Applicant pointed to TDCP 1 as it was at the time of the Original Consent in support of the submission.
The relocation of the open space leaves the development substantially the same and there is no radical transformation, especially having regard to the area of the original subdivision of 66.2 hectares.
The Council submitted that quantitively:

There is an 8.9% increase in lot yield and the land area affected by the modification application is 10.662 hectares.
Because there are additional residential allotments, the proportion of open space to total lot area is reduced.

Qualitatively, the Council submitted:

the shifting of the open space to a totally different location with different physical and ecological features is a significant and material change.
The new uses proposed in part of the approved open space (the additional lots and road extension) will actually and materially change the use of that part of the land originally approved as passive open space.
The balance of the approved open space will no longer be open space or reserve so that the status quo is not preserved, protected or assured in terms of access to that area by local residents.

The Council submitted that the dedication and embellishment of open space, including the open space proposed to be relocated, was a material and essential physical element of the approved development which the Court would find was "important" in the consideration of the development application leading to the ultimate determination of the Original Consent. The modified development it submitted will not have, essentially or materially, the same essence.

Consideration

The comparative exercise is appropriate and it is necessary first to identify the facts for the purpose of undertaking the comparative exercise. The table below summarises the numerical details of the elements of the subdivision as approved and as proposed to be amended. Original Consent Proposed Modification Total area 66.2 hectares 66.2 hectares Area of residential lots About 14 hectares About 15 hectares Number of lots 101 110 Percentage increase 8.9% Total area of open space 13.71 hectares 13.71 hectares Structured open space 6,223 sq m 6,223 sq m Passive open space 5.95 hectares 5.95 hectares Lot 454 1.81 hectares 1.81 hectares Lot 399 5.331 hectares 5.331 hectares (lot 535) Lot 465 Drainage reserve and retention basin 4383 sq m 4383 sq m Area of residual lot 37.9 hectares 37.07 hectares Developed area (total area less residual area) 28.3 hectares 29.13 hectares Percentage of residential lots to total area 9.27% 9.93% Percentage of residential lots to developed area 49.47% 51.49% Percentage of relocated open space (lot 465/535) to total area 8.05% 8.05% Percentage of relocated open space to developed area 18.83% 18.30%

I will return to the numerical analysis but there are some matters of fact to be noted which are beyond the numerical analysis.
Clearly the real point of difference between the Original Consent and the modification is the relocation of the open space originally lot 465 and now proposed to be lot 535. There are a number of differences and consequences of the location which should be observed. (I shall refer to the relevant open space in the Original Consent as lot 465 and as proposed to be modified as lot 535.)
The location of lot 465 is adjacent to in the order of 30 then proposed residential allotments. It forms a generally northerly "band" around a portion of the overall residential development having a varying width from about 30m to about 75m or thereabouts. The outside of the "band is generally adjacent to the balance or residual lot.
Lot 535 is proposed to be bounded essentially by road, the balance or residual lot and public reserve/open space. It is near to the most north-westerly lots in the broader subdivision, but more distant from the lots to which lot 465 is adjacent. It is more or less rectangular in shape with dimensions roughly 150m x 250m.
Lot 465 is generally steep land with significant stands of vegetation. A condition of the Original Consent provides that a Plan of Management was to be provided for a particular area said in a 1999 Flora and Fauna Study to have high conservation value. It is not clear if that area included part of lot 465. (A later modification to the consent required a Habitat Restoration Plan to be approved and implemented but that condition was not in the Original Consent.) No infrastructure was approved on lot 465.
Lot 535 is "relatively flat and low-lying, traversed by a tidal channel sections that occasionally become inundated by tidal flows from Duroby Creek and floodwaters, or drainage from the upstream catchment areas" (Biodiversity Development Assessment Report, Cumberland ecology 16 July 2020). The Applicant proposes to construct pathways, boardwalks, shade structures/picnic shelters and a playground within lot 535. Landscaping and revegetation works are also proposed.
Lot 465 is zoned RU5 Village and the minimum lot size for subdivision is 450 sqm. The zone objectives and land use table are: Zone RU5 Village 1 Objectives of zone • To provide for a range of land uses, services and facilities that are associated with a rural village. • To ensure that new development responds to and respects the character of a rural village. 2 Permitted without consent Environmental facilities; Environmental protection works; Home occupations 3 Permitted with consent Agricultural produce industries, Biosolids treatment facilities; Boat building and repair facilities; Boat launching ramps; Boat sheds; Camping grounds; Car parks; Charter and tourism boating facilities; Centre-based child care facilities; Commercial premises; Community facilities; Crematoria; Dwelling houses; Educational establishments; Electricity generating works; Exhibition homes; Exhibition villages; Flood mitigation works; Function centres; Helipads; Home-based child care; Home businesses; Horticulture; Industrial retail outlets; Industrial training facilities; Industries; Information and education facilities; Jetties; Mooring pens; Moorings; Neighbourhood shops; Oyster aquaculture; Passenger transport facilities; Places of public worship; Recreation areas; Recreation facilities (indoor); Recreation facilities (major); Recreation facilities (outdoor); Registered clubs; Residential accommodation; Respite day care centres; Roads; Schools; Service stations; Sewage treatment plants; Signage; Tank-based aquaculture; Tourist and visitor accommodation; Transport depots; Truck depots; Vehicle body repair workshops; Vehicle repair stations; Veterinary hospitals; Warehouse or distribution centres; Water recreation structures; Water recycling facilities; Water supply systems 4 Prohibited Farm stay accommodation; General industries; Heavy industries; Pond-based aquaculture; Residential flat buildings; Rural workers' dwellings; Specialised retail premises; Any other development not specified in item 2 or 3
Proposed lot 535 is zoned RU2 Rural Landscape. The minimum lot size for subdivision is 40 hectares. The zone objectives and land use table are: Zone RU2 Rural Landscape 1 Objectives of zone • To encourage sustainable primary industry production by maintaining and enhancing the natural resource base. • To maintain the rural landscape character of the land. • To provide for a range of compatible land uses, including extensive agriculture. • To provide for a range of tourist and visitor accommodation-based land uses, including agri-tourism, eco-tourism and any other like tourism that is linked to an environmental, agricultural or rural industry use of the land. 2 Permitted without consent Environmental facilities; Environmental protection works; Extensive agriculture; Home occupations; Intensive plant agriculture 3 Permitted with consent Airstrips; Animal boarding or training establishments; Aquaculture; Bed and breakfast accommodation; Boat launching ramps; Boat sheds; Camping grounds; Caravan parks; Cellar door premises; Cemeteries; Community facilities; Crematoria; Depots; Dual occupancies (attached); Dwelling houses; Eco-tourist facilities; Educational establishments; Extractive industries; Farm buildings; Farm stay accommodation; Flood mitigation works; Forestry; Funeral homes; Garden centres; Group homes; Helipads; Home-based child care; Home businesses; Home industries; Hostels; Industrial retail outlets; Industrial training facilities; Information and education facilities; Intensive livestock agriculture; Jetties; Kiosks; Landscaping material supplies; Markets; Open cut mining; Places of public worship; Plant nurseries; Recreation areas; Recreation facilities (major); Recreation facilities (outdoor); Restaurants or cafes; Roads; Roadside stalls; Rural industries; Rural supplies; Rural workers' dwellings; Signage; Timber yards; Transport depots; Truck depots; Turf farming; Veterinary hospitals; Water recreation structures; Water supply systems; Wharf or boating facilities 4 Prohibited Any development not specified in item 2 or 3
Plainly the zones are different in their objectives and potential land uses. I shall consider that aspect shortly.
The location of lot 465 is consistent with the provisions of TDCP 1 as it applied at the date of the Original Consent. Clause 2.2 of TDCP 1 provided: "Specific Objectives All developments must generally comply with the "DCP 1" Map."
DCP 1 Map shows that lot 465 is to be open space. Clause 4 deals specifically with Public Open Space and relevantly provides: "The proposed public open space, shown as 6(a) in the DCP plan, is to be dedicated to Council free of cost. Additional open space as shown on the layout plan is to be dedicated to Council to comprise useable casual open space. This dedication is not to comprise "left over" pieces of land unsuitable for development. Criteria for useable casual open space is: Slope is to be such that walking is possible for the majority of the expected population…."
The legend to the "DCP plan" (identical to the "DCP 1 Map") shows land with a stippling designation to be "Public Open Space 6(a)". Lot 465 is so designated although it was not zoned 6(a). Notwithstanding that the zoning pursuant to a different instrument was not 6(a), the DCP plan itself makes it plain that land including lot 465 was to be public open space and dedicated to Council free of cost.
Of course, a development control plan itself cannot require, nor authorise the dedication of land free of cost, such a dedication can only be authorised by a contributions plan (s 7.13, formerly s 96B of the EP&A Act). On 21 July 1999 the Council adopted "Section 94 Plan No. 21 - Terranora Village Estate - Open Space and Community Facilities" which permitted the dedication of lot 465 at no cost to the Council.
The provision of open space by lot 465 was consistent with the applicable development control plan and contributions plan. The location of proposed lot 535 is not. Similarly, it was not suggested that any current development control plan or contributions plan makes provision for open space dedication in the location of proposed lot 535.
I accept that if the modification simply involved the additional allotments and the extension of the road in order to provide access to them, then the development as proposed to be modified would be substantially the same as the development the subject of the Original Consent. It is the relocation of the open space of original lot 465 which gives rise to the issue.
The statutory task is best commenced in this instance by first considering the essential features of the development approved and sought to be modified.
An essential feature of the development the subject of the Original Consent is undoubtedly the provision of open space in general. The elements of the subdivision (as is typical) are the residential allotments, the roads and other services and the open space. The residue or balance lot is a consequence of the subdivision rather than a purpose of the subdivision. As its description suggests, it is left over land which is not proposed to be developed at the time as a consequence of the Original Consent. The features of the development as proposed to be modified are the same if considered at the highest level.
But the question arises as to whether the size and location of lot 465 as open space is of itself an essential feature of the approved development. In my opinion it is.
Lot 465 comprises nearly 20% of the site which is to be developed. It is a significant parcel. The location is unique both within the site and in terms of its relationship to the residential allotments. It is comprised of steep land with significant stands of vegetation and rings around, and provides a buffer for, the northern component of the residential allotments. Those factors speak not simply of the provision of an area of open space in general, but the provision of open space in that particular location. Lot 465 in its location, with its topography, ecology and size, is an essential feature of the development the subject of the Original Consent.
I do not regard the quantitative alterations in proportions of lots 465 and 535 to the development as a whole as submitted by the Council lead to the conclusion that the modified development is not substantially the same. The numerical differences are minor.
In my opinion, however, it is the following qualitative matters which lead me to conclude that an essential feature (lot 465) is significantly altered by its "relocation" in comparing it to lot 535: 1. The topography is clearly different. Lot 465 is generally steeply sloping and lot 535 is relatively flat. 2. Lot 535 is subject to inundation from tidal flows, floodwaters and drainage from upstream. Lot 465 is not. 3. Lot 465 is adjacent to about 30 residential allotments and is a form of buffer to the north of the residential allotments. Lot 535 is generally more distant from the residential allotments and adjacent to other open space. 4. Lot 465 is not proposed to accommodate infrastructure for passive recreation whereas there is proposed not insignificant infrastructure for that purpose on lot 535. 5. Lot 465 complied and complies with the minimum lot size in the applicable environmental planning instrument whereas proposed lot 535 does not. 6. The potential for uses on the land now constituted by lot 465 is much broader if the modification was approved because it would not be open space in the control of the Council but available for development in accordance with its zoning. That is not to make any assumption about the future use of that land, but merely to note the difference between the use as approved and the potential uses if the modification was approved. 7. Lot 465 is consistent with TDCP 1 and TDCP 2006 and proposed lot 535 is not.
Those reasons lead to the conclusion in my opinion that the development as proposed to be modified is not substantially the same as the development the subject of the Original Consent, first by finding that the location of lot 465 was an essential element of the approved development and second by identifying the significant qualitative differences between lot 465 and proposed lot 535.
I do not consider it relevant to explore the merits of the competing lots in the way invited by Mr Pepping and the Applicant, by testing the open space lots against the objectives of TDCP 1 or TCDP 2016. That is not a necessary task for the purpose of determining the substantially the same test. To do so would be to begin to undertake the merit assessment of the modification application and divert from the question to be determined. In any event having determined that the location of lot 465 is an essential element of the approved development with its particular topographical and ecological features, the contrasting topographical and ecological features of proposed lot 535 would hardly lead to the conclusion that the objective of lot 465 as open space is equally met by lot 535.
Whether or not proposed lot 535 better meets the objectives of open space is a question of the relative merits of the two lots rather than addressing the question of whether the modified development is "substantially the same".
I do not find Mr Pepping's opinion that there is no alternative use of lot 465 because it is not proposed in the modification application, and therefore there is no material change to the intent of the use of the land is of assistance. It is not a matter of any present intention which is relevant. What is relevant is that one of the qualities of that land would change - from the limitation of dedicated open space to development potential for a range of uses.
I reject the Applicant's submission that it was the useability of the open space which is its defining characteristic and there is therefore no change, rather there is an improvement, in useability so there is no material difference. When Council required the dedication of lot 465 it was assumed to be aware of its characteristics, both topographical and ecological. One could not conclude otherwise. Self-evidently, useability was not the leading criterion, nor perhaps any relevant criterion, because the useability of lot 465 is limited, due to its very essential characteristics - slope and vegetation.
The Applicant also pointed to the area of the original site at 66.2 hectares and submitted that the change in the location of a mere 5.331 hectares of open space would not lead to the conclusion that it was not substantially the same. On a quantitative basis that submission may find favour, however, two matters need to be noted. First, the preferable comparison in terms of the area of the lot the subject of the development is to the part of the original lot which is actually the subject of proposed development. The relationship between lot 465 and the developed land is more important.
Second, it is the qualitative matters to which I have referred which truly demonstrate why the modification application fails the substantially the same test. If lots 465 and 535 had similar characteristics, then perhaps the modification application would pass the test. However, the lots clearly do not have similar characteristics.

Conclusion

The Modification Application has not overcome the jurisdictional barrier to the consideration of the merits of the application. The development as proposed to be modified is not substantially the same as the development the subject of the Original Consent and the appeal must fail.
It is obviously not necessary to consider the merit issues and it is not appropriate that I do so. Any findings would not be binding on any other decision maker in the future, and any further development application may not be in the same form or supported by the same evidence in any event.
In matter 2019/343924 the Court makes the following orders: 1. The appeal be dismissed. 2. Modification application S96/0066.22 in respect of Lot 469 in Deposited Plan 1144944, Henry Lawson Drive, Terranora is determined by refusal. 3. The exhibits be returned other than exhibits A, B, C and 4.
In matter 2020/181898 the Court makes the following orders: 1. The appeal be dismissed. 2. Modification S96/0066.23 in respect of Lot 469 in Deposited Plan 1144944 Henry Lawson Drive, Terranora is determined by refusal. 3. The exhibits be returned other than exhibits A, B, C and 4.

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(1999) 106 LGERA 298

(2008) 166 LGERA 342

(2003) 129 LGERA 351

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