Hurstville City Council v Renaldo Plus 3 Pty Ltd

Court of Appeal (NSW)|2006-08-15|Before: Mason P, Hodgson JA, Tobias JA, Pain J, Per Tobias JA

CITATION: Hurstville City Council v Renaldo Plus 3 Pty Ltd [2006] NSWCA 248

JUDGMENT OF: Mason P at 1; Hodgson JA at 2; Tobias JA at 5

DECISION: (a) Grant leave to appeal upon condition that a notice of appeal containing the grounds of appeal argued on the appeal be filed within seven days of the date of these orders; (b) Appeal dismissed; (c) The appellant to pay the respondent's costs of the appeal

Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Hurstville Local Environmental Plan 1994 Land and Environment Court Act 1979 Land and Environment Court Rules 1996

Bailey v Marinoff (1971) 125 CLR 529 Cachia v Colaco (2003) 132 LGERA 62 Cristel v Cristel [1951] 2 KB 725 Detala Pty Ltd v Byron Shire Council (No 2) (2000) 107 LGERA 422 DJL v The Central Authority (2000) 201 CLR 226 Kindimindi Investments Pty Ltd v Lane Cove Council (2006) 143 LGERA 277 Meehan v Glazier Holdings Pty Ltd (2002) 54 NSWLR 146 Minister for Urban Affairs and Planning v Rosemount Estates Pty Ltd (1996) 91 LGERA 31 CASES CITED: Mison v Randwick Municipal Council (1991) 23 NSWLR 734 Muriti v Prendergast [2005] NSWSC 281 Oshlack v Richmond River Shire Council (1993) 82 LGERA 222 Pelechowski v Registrar, Court of Appeal (NSW) (1999) 198 CLR 435 Scott v Wollongong City Council (1992) 75 LGRA 112 Transport Action Group Against Motorways Inc v Roads and Traffic Authority (1999) 46 NSWLR 598 Weal v Bathurst City Council (2000) 111 LGERA 181 Winn v Director-General of National Parks & Wildlife (2001) 130 LGERA 508 Zhang v Canterbury City Council (2001) 51 NSWLR 589

PARTIES: Hurstville City Council Renaldo Plus 3 Pty Ltd

COUNSEL: A: T.F. Robertson SC R: I. Hemmings

SOLICITORS: A: Deacons, Sydney R: Heidtman & Co, Sydney

LOWER COURT JURISDICTION: Land & Environment Court

LOWER COURT MEDIUM NEUTRAL CITATION: Renaldo Plus 3 Pty Ltd v Hurstville Cith Council [2005] NSWLEC 315

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40912/05 L&E 11591/04

MASON P HODGSON JA TOBIAS JA

Friday 8 September 2006 HURSTVILLE CITY COUNCIL v RENALDO PLUS 3 PTY LTD

The opponent sought permission to commence a mixed commercial, retail and residential development upon premises in Oatley. The claimant refused the development application and the matter was appealed to a Commissioner of the Land and Environment Court, who granted development consent subject to a number of conditions. The claimant again appealed to a judge of the Land and Environment Court, who dismissed the appeal.

The claimant sought leave to appeal against that decision on the basis of two primary grounds of appeal. First, the claimant argued that the Commissioner failed to take proper account of the impact the proposed development would have on the character of the area. Second, the claimant submitted that the Commissioner had failed to resolve some outstanding issues before granting development consent, which related to the Operations Management Plan with respect to a loading dock that was to be brought into existence. It was therefore contended that the consent lacked finality and certainty.

Held, granting leave to appeal and dismissing the appeal with costs:

In considering the impact of the proposed development on the character of the area, the Commissioner was required to determine whether the development was consistent with the objectives of the zone in which the area was located, and to examine the impacts of the development in relation to the surrounding locality: [81].

In this case, although the residents of Oatley had raised a number of complaints about the impact of the development on the character of the area, all of the expert evidence regarded the impact as acceptable. The Commissioner clearly took account of the likely impacts of the development and undertook the task that was required of him: [80]-[81].

A purported consent will lack finality or certainty if the absence of such finality or certainty contravenes the statutory limits of the consent authority's power, with the result that there is no valid consent because the development consented to is not that for which approval was sought: [90], Mison v Randwick Municipal Council (1991) 23 NSWLR 734, Kindimindi Investments Pty Ltd v Lane Cove Council (2006) 143 LGERA 277 discussed.

Where a consent is granted by the Land and Environment Court in circumstances where some matters are left open for later consideration by the same Court, the consent will only be invalid if it amounts to a failure by the decision maker to take into consideration and resolve relevant matters as required by s79C(1) of the Environmental Planning and Assessment Act 1979: [93].

There is no reason in principle to deny the Land and Environment Court the power to make orders necessary for the working out of its orders, including orders granting development consent: [102].

In this case, by reserving liberty to apply, the Commissioner was not reserving to himself the right to revive or alter the consent which he had granted and the conditions he had imposed, or to subsequently refuse the consent: [108].

Moreover, s23 of the Land and Environment Court Act 1979 empowered the Commissioner to grant liberty to apply in relation to the final determination of the necessary amendments to the Operations Management Plan: [109]; Pelechowski v Registrar, Court of Appeal (NSW) (1999) 198 CLR 435 distinguished.

Accordingly, the Commissioner did not err in granting consent and the primary judge was correct in upholding his decision: [111].

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40912/05 L&E 11591/04

MASON P HODGSON JA TOBIAS JA

Friday 8 September 2006 HURSTVILLE CITY COUNCIL v RENALDO PLUS 3 PTY LTD Judgment 1 MASON P: I agree with Tobias JA and with the additional remarks of Hodgson JA. 2 HODGSON JA: I agree with the orders proposed by Tobias JA and with his reasons. 3 I would mention one other way in which the claimant's argument was put, namely that the order made by the Commissioner could not be a final order granting consent, because the conditions on which the consent was granted incorporated an Operations Management Plan that had not yet come into existence. Both the reasons for judgment and the orders made it clear that the "Operations Management Plan" referred to in Condition 103 was not Exhibit N in the proceedings, nor was it Exhibit N with identified amendments: rather, it was a document yet to be brought into existence either by agreement of the parties or by a later determination of the Court. The claimant contended that this was inconsistent with a consent operative and effective from its date (Environmental Planning and Assessment Act 1979 s83), having conditions a breach of which would be a breach of the Act and thus a criminal offence. 4 There could be force in this submission if the areas of uncertainty as to the content of the Operations Management Plan were such as to be relevant to the making of the decision as to whether or not to grant consent or the decision as to the substance of the conditions on which consent was to be granted; or possibly if the areas of uncertainty related to action to be taken immediately upon the grant of consent. For reasons given by Tobias JA, it is clear that the areas of uncertainty, namely the precise location where trucks were to be sent if delivery could not be accepted immediately, and the precise mechanism for varying the Plan, were not relevant to the decision as to whether or not to grant consent, or the decision as to the substance of the conditions; and there was not even a remote possibility that the remaining details would still be unresolved at the time the Plan would become operative, namely after construction of the development. 5 TOBIAS JA: On 12 July 2005, Commissioner Brown of the Land and Environment Court allowed an appeal by the opponent, Renaldo Plus 3 Pty Ltd, against the refusal of a development application (the application) by the claimant, Hurstville City Council. The opponent sought to demolish the existing structures upon premises known as No. 47-67 Mulga Road, Oatley (the site) and to erect, in their place, a mixed commercial/retail/residential development (the proposed development). Having allowed the appeal, the Commissioner granted development consent to the application subject to 125 conditions (the consent). 6 The claimant instituted an appeal from the decision of the Commissioner to a judge of the Land and Environment Court pursuant to s56A(1) of the Land and Environment Court Act 1979 (the Court Act). Such an appeal is confined to questions of law. On 1 November 2005, Pain J dismissed that appeal and ordered the claimant to pay the opponent's costs. The claimant now seeks leave to appeal against that decision from this Court pursuant to s57(1) and (4)(c) of the Court Act. If leave is granted, the appeal is also confined to questions of law. 7 In the present case the substantive appeal was heard concurrently with the application for leave. As I am of the opinion that leave to appeal should be granted, I shall hereafter refer to the opponent as the respondent.

The background facts 8 The site has an area of 2084 m² with a frontage to Mulga Road of 69.677 m and a depth of 40.235 m. The existing development on the site consists of four single dwelling houses and ancillary structures. The proposed development, in the form approved by the Commissioner, comprises two basement levels of car parking off Mulga Road at the eastern end of the site, a large supermarket to be operated by Coles with a gross floor area of 1890 m², a café located on the mezzanine level fronting Mulga Road with an area of 134 m², five office spaces with a combined gross floor area of 361 m² and two levels of residences comprising 11 x 2 bedroom townhouses. 9 A proposed loading bay at the western end of the site, which is to service the supermarket located off Mulga Road, is of particular relevance to the issues agitated before the primary judge and this Court. The loading dock is designed to be one way with all vehicles entering and leaving in a forward direction, utilising for that purpose a turntable located at its rear. The largest vehicle using the loading dock will be an 11 metre rigid truck. The operation of the loading dock is to be controlled by what was referred to as an Operations Management Plan, which was Exhibit N before the Commissioner. I shall refer to it by the same title in these reasons. 10 The site is within a 3(a) - General Business Zone under the Hurstville Local Environmental Plan 1994 (the LEP). The proposed development was permissible with consent. It complied with the floor space ratio and height restrictions applicable to that zone. 11 Prior to the hearing before the Commissioner, the claimant had prepared, exhibited and adopted an amendment to the draft Hurstville Local Environmental Plan 1994 (Amendment No 60), which imposed a two storey height limit within the subject zone. The claimant resolved to proceed with that draft plan on 23 February 2005, approximately one month prior to the first hearing date of the appeal before the Commissioner. 12 The claimant had further resolved to prepare a further amendment to the draft Hurstville Local Environmental Plan 1994 (Amendment No 66), which was publicly exhibited from 24 March 2005 to 20 April 2005. On 27 April 2005, the claimant resolved to proceed with that draft. The effect of Amendment 66 if and when made, at least from a practical point of view, would be to prohibit so much of the proposed development as comprised the Coles supermarket as it would restrict the display/sales area for retail activity to a maximum of 400 m². It further amended the zone name and objectives to accommodate "only small scale, local neighbourhood retail and business activities". 13 Local residents raised a number of objections to the proposed development. One of their major objections was that the supermarket would have an unacceptable amenity impact as it would not only cater for the retail needs of the local neighbourhood but would also attract customers from well outside the locality, thus increasing traffic and noise within the local residential area. This was a particular issue because the subject zone of which the site formed part was surrounded by an extensive residential zone in which the predominant urban form was that of detached dwelling houses. 14 Neither draft plan contained any savings provisions. Amendment 60 was made by the Minister on 5 August 2005 and Amendment 66 on 9 September 2005. Given the changes effected by Amendment 66, it followed that if the consent granted by the Commissioner was invalid and the respondent's appeal against the Council's refusal of the application was to be remitted for further hearing, the inevitable result would be that the appeal would be dismissed and the respondent's application for development consent refused. 15 At first instance in the Land and Environment Court the claimant filed an Amended Statement of Issues containing 13 individual issues of which 11 remained alive at the time of the hearing before the Commissioner. In [21] of his judgment, he grouped those issues into seven areas of which three are presently relevant, namely, "(3) Whether the proposed loading facility is adequate (Issues 1, 2, 11 and 12) (6) Whether there are unacceptable amenity impacts (Issue 8, 10). (7) Whether the proposal will have an unacceptable impact on the character of the area (Issue 9)" 16 In accordance with the practice of the Land and Environment Court in Class 1 appeals, the parties agreed to Mr Gary Shiels as the court appointed town planning expert and Mr Barry Murray as the court appointed acoustic expert. Town planning evidence on behalf of the respondent was also provided by Mr Andrew Darroch and traffic engineering evidence by Mr Graham Pindar. Mr Reginald Binding, the Feasibility Manager with Coles, provided evidence with respect to the operation of the proposed loading dock. It is not unimportant to note that apart from calling a number of residents who objected to the proposed development, the claimant did not call any expert evidence on its own behalf. It relied upon the court appointed experts and, in particular, on the evidence of Mr Shiels as he had expertise in both town planning and traffic engineering. 17 It would appear that when the matter first came before the Commissioner on 22 March 2005, Mr Shiels provided a report in which he indicated that he was not prepared to support the proposed development in its existing form. Accordingly, the hearing was adjourned to enable the respondent to prepare amended plans to resolve the objections which had been voiced by Mr Shiels. The appeal was referred for hearing before the Commissioner on 2 and 3 June 2005, by which time Mr Shiels had prepared a report in which he supported the amended proposal, both from a town planning and traffic engineering point of view. Mr Murray also supported the amended proposal in terms of its noise impact upon local residences. 18 At this point, therefore, the only relevantly negative evidence with respect to the amended proposal was that of the local residents and, in particular, that of Ms Samonian and Mr Dieton. According to the Commissioner (at [51]), these residents expressed particular concern about noise and safety with respect to trucks entering and leaving the loading dock, and also expressed general concern that the proposed development would change the character of the area (at [104]). 19 One or two residents also raised objections related to the amenity impacts of the residential component of the proposed development, but these are not presently relevant to the issues in the appeal.

The Commissioner's decision 20 Three parts of the Commissioner's judgment are relevant to the present appeal: first, those parts of the judgment that relate to the loading dock; second, those parts relating to amenity impacts; and, third, those with respect to the impact on the area's character. The Commissioner dealt with each of these matters separately. 21 With respect to the operation of the loading dock, the Commissioner (at [45]) acknowledged that that was a significant issue in the appeal. He noted that the respondent relied on the Operations Management Plan, Exhibit N, to control deliveries to the proposed supermarket in a manner that minimised any potential impact on Mulga Road and adjoining residential areas. However, the claimant maintained that the plan could not be relied upon and it was therefore likely that the proposed development, and in particular the supermarket, would have an unacceptable impact on Mulga Road and adjoining residential areas. 22 In [46] of his judgment, the Commissioner noted that Exhibit N provided a series of restrictions and delivery constraints upon all vehicles delivering goods to the Coles supermarket. He then listed some 11 major components of the plan. In [49] he referred to the evidence given by Mr Pindar (the traffic engineering expert called on behalf of the respondent) that the loading arrangements were satisfactory having regard to the contents of Exhibit N and the frequency of deliveries. 23 At [50] the Commissioner noted that Mr Shiels who, as I have observed, had qualifications in traffic engineering and had therefore addressed the operation of the loading dock, had "agreed that it would be acceptable if operated in accordance with the Operations Management Plan." 24 The Commissioner then summed up the expert evidence in the following terms: "52. In considering the range of evidence on the suitability of the loading dock, the general consensus of the experts was that if the loading were operated in accordance with the Operation Management Plan [Exhibit N], it would operate in an acceptable manner. This raises the important question of whether the Operation Management Plan can be relied upon to provide some certainty in its operations and consequently provide a reasonable level of amenity and safety for adjoining residents and other people using the Mulga Road shops." 25 After referring to the decision of this Court in Transport Action Group Against Motorways Inc v Roads and Traffic Authority (1999) 46 NSWLR 598 at 629-630 [122] as authority for the proposition that management plans were a well known concept in environmental law and could be used in a range of different circumstances, the Commissioner acknowledged (at [53]) that often the contents of a management plan were "critical to the decision of whether a development application should be approved or refused"

and that that was so with respect to the application before him. Accordingly, in considering whether a management plan was appropriate for a particular use in a particular situation, a number of questions needed to be considered. The Commissioner then set out eight questions, each of which he addressed individually with respect to Exhibit N and which related to the issue of whether it could be relied upon to ensure that the loading dock operated in accordance with its terms. 26 Relevantly, the second question posed by the Commissioner was as follows: " Do the requirements in the Management Plan require people to act in a manner that would be unlikely or unreasonable in the circumstances of the case? " 27 The Commissioner referred to an obligation in Exhibit N that required truck drivers to notify the supermarket five minutes prior to their arrival and, if a red light indicated that the loading dock could not be accessed, to make other arrangements for the delivery of their load. The Commissioner expressed the view (at [58]) that the requirements of Exhibit N did not place an unreasonable obligation on truck drivers, the Stock Room Manager or the Store Manager. He considered that while the need to contact the supermarket prior to the delivery did create an additional task for truck drivers, this would become second nature over time. He then remarked as follows: "In the event that deliveries cannot be made at a specific time, I accept that the Operation Management Plan [Exhibit N] can adequately deal with this event. Although I am of the view that the Operation Management Plan should be amended to provide for suitable locations where trucks may park in situations where the rescheduling of the delivery is not appropriate or unnecessary. These locations should not potentially impact on the amenity of any residential area. " (Emphasis added.) 28 The next relevant question was as follows: " Do the requirements in the Management Plan require absolute compliance to achieve an acceptable outcome? " 29 After noting the potential noise impact of any breaches of the plan and observing that in Exhibit N the proposed closing time for the dock on Sundays and public holidays was 10pm, the Commissioner remarked as follows: "65. Mr Shiels recommended that the operating hours for the loading dock should be amended to provide for a closing time of 8.00pm on Sundays and public holidays. I concur with this recommendation and the Operation Management Plan should be amended accordingly." 30 Exhibit N did not contain any provision with respect to the programming of deliveries at night apart from providing a 10pm closing time which, as I have just noted, the Commissioner directed should be reduced to 8pm on Sundays and public holidays. 31 However, in [66] the Commissioner referred to Mr Binding's evidence on behalf of Coles that although the respondent was seeking a 10pm closing time for the loading dock, no deliveries were programmed after 7pm on any night. He indicated that the additional time between 7pm and 10pm was required for emergencies or one-off deliveries. The Commissioner remarked on this evidence as follows: "In my view it would be appropriate for the Operation Management Plan to reflect Mr Binding's evidence that no deliveries are programmed after 7.00pm on any night." 32 The final relevant question posed by the Commissioner was as follows: " Is there a procedure for updating and changing the Management Plan including the advertising of any changes? " 33 With respect to this question the Commissioner remarked as follows: "71. The Operation Management Plan does not contain any procedure for updating or changing its requirements. As other amendments to the operation management plan are required, additional provisions addressing this matter can be included with the other amendments. 72. Based on the answers to the preceding questions, there is no reason why the Operation Management Plan [Exhibit N] cannot be relied upon to provide for the efficient operation of the loading dock at an acceptable level of protection to the surrounding residential area . In coming to this conclusion I have relied on the evidence of Mr Binding and his knowledge of the operation of similar loading facilities and with his general experience with the operation of similar supermarkets. … 77. I agree with Mr Pindar that with the frequency of deliveries and with the reasonable level of care by drivers and pedestrians, pedestrian's safety should not be an issue." (Emphasis added.) 34 Under the heading "The Draft Conditions", the Commissioner referred (at [114]) to the closure of the doors to the loading dock when it was in use in order to suppress noise. In this respect Exhibit N under the heading "LOADING DOCK DOOR CLOSING" provided as follows: "The Loading Dock door must have an automatic closing device so that it will close within five minutes of being opened and will close after the entry of the vehicle. Upon exit of the vehicle, the Loading Dock door must be closed immediately." 35 The Commissioner (at [114]) referred to the need to have the roller door closed when the loading dock was in operation as a fundamental factor in Mr Murray's support for the proposed development. He noted that it was "also a matter offered by the applicant in the Operation Management Plan [Exhibit N] although it does not make reference to the operation of the compactor. The Operation Management Plan should be amended to reflect this. As the need to have the roller door closed when the loading dock is in operation is included in the Operation Management Plan it is superfluous as a condition of consent and should be deleted." 36 At [115] he noted the requirement in Exhibit N for an automatic closer for the roller door. Although he did not consider it necessary to mandate such a device, given that the critical matter was the closing of the doors and not necessarily the way in which they were closed, nevertheless he deleted the requirement from the draft conditions. As I have indicated, it was already provided for in Exhibit N. 37 In [116] the Commissioner referred to draft Condition 102 which sought to limit delivery times to the loading dock. As those times were already contained in Exhibit N, he considered that that condition should also be deleted. I should add that in [113] the Commissioner considered that draft Conditions 100 and 105 should also be deleted, as they were rendered superfluous by the requirements already contained in Exhibit N. The former required the roller door to the loading dock to be kept shut while trucks were in the dock and while the compactor was in use. By contrast, Condition 105 required the roller door to be fitted with an automatic closing device. 38 The Commissioner concluded this part of his judgment in the following terms: "118. It is necessary for the Operation Management Plan to be amended to reflect the findings in this judgment. Accordingly, I direct the parties to confer and provide an amended Operations Plan of Management within 7 days. Liberty is granted to restore the matter with 48 hours notice if no agreement is reached on the amended Operations Plan of Management." 39 As a consequence of the last sentence of [118], Order 4 of the formal orders made by the Commissioner was as follows: "Liberty to restore with 48 hours notice if no agreement is reached on the amended Operation Management Plan."

An Amended Operation Management Plan 40 It will be appreciated from the foregoing that the Commissioner considered (in that part of his judgment which I have emphasised: see [33] above) that there was no reason why Exhibit N could not be relied upon to provide for the efficient operation of the loading dock and an acceptable level of protection to the surrounding residential areas. That conclusion was made subject to Exhibit N being amended in five respects. With respect to three of those amendments, the Commissioner specified that the loading dock was to close at 8pm on Sundays and public holidays ([65]); that no deliveries were to be programmed after 7pm on any night ([66]); and that the compactor must not be operated when the roller door to the loading dock was open ([114]). 41 As for the other two amendments required by the Commissioner, the first was that Exhibit N should provide for a suitable parking location for trucks where the rescheduling of a delivery was neither appropriate nor necessary, provided that that location did not have the potential to impact on the amenity of any residential area ([58]). The second was that Exhibit N should contain a procedure for updating or changing its requirements ([71]). Although on its face this last amendment was somewhat vague, it was given substance by the fact that it was an answer to the question of whether there was a procedure for updating and changing the management plan that included the advertising of any such changes to the public. 42 The Court was informed that the three amendments referred to in [65], [66] and [114] were all agreed upon and Exhibit N was amended to reflect them. Apparently there was disagreement with respect to the amendments referred to in [58] and [71]. Accordingly, the respondent purported to exercise the liberty to apply referred to in par 4 of the Commissioner's orders of 12 July 2005. That application was adjourned until after the primary judge had determined the Council's s56A appeal. As I have indicated, that appeal was dismissed on 1 November 2005 and the Commissioner dealt with the outstanding amendments to Exhibit N on 8 November 2005 when he ordered that "The Operation Management Plan is amended. The Amended Operation Management Plan is annexed and marked 'A'." 43 Relevantly to the amendment required in [58] of the Commissioner's judgment, two paragraphs were added to Exhibit N under the heading "TRUCK MANAGEMENT IN MULGA ROAD" immediately following the paragraph which read: "In the event that an unscheduled truck arrives and the loading dock is not free, the Store Manager will instruct the driver to reschedule the deliveries and return at a later time to be agreed upon with the Store Manager." 44 The additional paragraph inserted by the Commissioner to reflect the amendment required by him in [58] was as follows: "However, where the Store Manager is of the opinion that the loading dock will become free within a period of time not exceeding 30 minutes, the driver may be instructed to proceed to the southern side of Roberts Avenue between Depot Road and Lorraine Street as shown on the attached plan, to wait for the availability of the loading dock. The truck driver must be instructed that the truck is only to be parked at the location shown in the attached plan."

The plan so attached reveals that this location adjoins Hurstville Golf Course on the south and the Roberts Avenue industrial zone on the north. In other words, it does not adjoin a residential area. 45 With respect to the amendment required by the Commissioner in [71], under the heading "INTRODUCTION", in Exhibit N, he added the following paragraph: "Compliance with this Operation Management Plan is required as a condition of Development Consent. The terms of this Operation Management Plan may only be modified in accordance with, and pursuant to, s96 of the Environmental Planning and Assessment Act ." 46 It was always the case that draft Condition 103 proposed by the Council, which was in fact imposed by the Commissioner as one of the conditions of the consent, provided that: "The Loading Dock Operation Management Plan shall be complied with at all times." 47 The amendment to Exhibit N to which I have referred in [45] above merely recited Condition 103 and noted that the plan could only be modified pursuant to s96 of the Environmental Planning and Assessment Act, 1979 (the EP&A Act). This was simply a restatement of the law. 48 The point that the Commissioner no doubt wished to make was that if a s96 application was made it would be necessary for it to be advertised so that it would come to the notice of the local residents.

Amenity impacts and impact on the character of the area 49 The Commissioner dealt separately with the amenity impacts of the proposed development at [99]-[104] of his judgment. He concluded (at 104) that, apart from impacts on the residential component of the development which are not presently relevant, the issues of noise and safety relating to the operation of the loading dock (including the loss of street parking in Mulga Road) and raised by the residents had been addressed elsewhere in his judgment and had not been found to justify the refusal of the application. 50 Under the heading "Impact on character of the area", the Commissioner acknowledged in [105] that this was a matter raised consistently by the local residents when the application was advertised and when he visited the site. He continued: "The resident concerns that the proposal will provide a shopping facility that will attract people beyond the immediate area is a valid concern as it will generate additional traffic and a change to the character of the existing centre that currently provides largely local service needs." 51 The Commissioner then remarked as follows: "106. The strength of this concern must however be measured against the character envisaged by the Council's planning instruments and the specific impacts of the additional traffic. The council planning instruments are a reflection of the form and type of development that are formulated through planning, exhibition and adoption by the claimant … 107. The impacts of the additional traffic were also not found to be so significant as to warrant the refusal of the development application. 108. On the basis of these findings, the appropriate character is that envisaged by the 3(a) - General Business Zone and reflected in the zone objectives. In consideration of cl 8(3) I find that the development is consistent with the objectives of the zone." 52 Relevantly, those zone objectives were "(a) to provide opportunities for retail and other business development in business centres outside the Hurstville Town Centre, and (b) … (c) to preserve the character of neighbourhood business centres by limiting the residential component of development."

The s56A appeal 53 The s56A appeal raised two grounds namely, "1. The Commissioner erred in law in that he prematurely made an Order granting development consent without firstly resolving a critical issue, namely, the content of the Operations Management Plan. 2. The Commissioner erred in law in confining the Court's determination of the impacts on the character of the area to the character of the area to the character envisaged by the 3(a) - General Business Zone as reflected in the zone objectives and failed to take into consideration the impacts on character in the wider context required under Section 79C of the Act."

(a) The first ground - lack of finality 54 With respect to this ground of challenge the primary judge noted (at [9]) the two matters of ongoing dispute between the parties, namely, the suitable location for trucks to park in situations where rescheduling of the delivery was neither appropriate nor necessary and the procedure for updating or changing the Operation Management Plan. Her Honour then summarised the Council's submissions in the following terms: "10. The claimant argued that because the Commissioner had identified that the OMP was critical to whether development consent ought to be granted, it was necessary that the OMP be completely finalised as part of the judgment. By leaving two significant matters unresolved and for later determination … the Commissioner's decision to grant development consent was not final." 55 This was an accurate summary of pars 10-13 of the claimant's written outline of submissions to her Honour. In those submissions it was contended that the Commissioner should not have granted consent until the parties had had the opportunity to determine the content of the relevant amendments and, in the event of disagreement, to make submissions and call evidence, if necessary, in that respect. Only after that process was completed could the Commissioner resolve the matter and determine whether or not consent should be granted. 56 The claimant contended that the Commissioner had granted consent notwithstanding that neither the parties nor the Commissioner had resolved the two outstanding matters referred to. Consequently, the existence and scope of the Commissioner's powers under the liberty to apply were impermissibly limited by the effect of the appeal having already been allowed and the consent granted. Accordingly, it was submitted that it was no longer open to the Commissioner to subsequently find that there was no appropriate resolution of the disputed amendments to Exhibit N and therefore, to disallow the appeal and refuse consent. 57 Paragraphs 12, 13 and 14 of the claimant's written submissions were set out in these terms (omitting case references): "12. In doing so, the Commissioner failed to consider essential matters, and deferred for later consideration, essential matters. There was no indication to the Commissioner as to the extent of any potential dispute between the parties or the extent of that dispute. Furthermore, there was no indication of how or whether the dispute would be resolved. Accordingly, the Commissioner failed to consider an essential matter or deferred it for later consideration contrary to Weal v Bathurst City Council and Zhang v Canterbury City Council . 13. As a consequence of the Commissioner's failure to consider these essential matters, the consent granted lacks certainty and finality, contrary to Mison v Randwick Municipal Council ; Glowpac Pty Limited v South Sydney City claimant and Winn v Director-General national Parks & Wildlife . 14. In these respects Commissioner Brown erred in law." 58 The respondent submitted that the Commissioner's decision did not lack finality unless the matters to be resolved by the required amendments to Exhibit N were capable of changing the core purpose of the proposed development or left for later consideration an important aspect of the development that could alter it in a fundamental respect. It submitted that the two unresolved amendments to Exhibit N were incapable of either outcome. Rather, they were ancillary components to the Commissioner's determination, and as a consequence the consent was sufficiently final and certain to be lawful. 59 The primary judge then considered the principles in relation to finality referred to in Mison v Randwick Municipal Council (1991) 23 NSWLR 734, in which this Court held that a consent to a development application for a dwelling house was invalid because as it included the following condition: "Overall height of the dwelling house being reduced to the satisfaction of Council's chief town planner." 60 Her Honour began by referring (at [12]) to the judgment of Priestley JA in Mison. His Honour had stated (at 737) that where a condition imposed upon a purported consent to a particular application had the effect of significantly altering the development, or where the effect of the condition was to leave open the possibility that development carried out in accordance with the consent and the condition will be significantly different from the development for which the application was made, then the legal effect of such conditions was that the claimant had not granted consent to that application. 61 Clarke JA (who agreed with Priestley JA) posed the test in the following terms (at 740): "Where a consent leaves for later decision an important aspect of the development and the decision on that aspect could alter the proposed development in a fundamental respect, it is difficult to see how that consent could be regarded as final." 62 The primary judge then referred to the decision of Stein J (as he then was) in Oshlack v Richmond River Shire Council (1993) 82 LGERA 222 where, in applying Mison principles, his Honour held that the consent there challenged was not void as the condition did not alter the development in a fundamental respect. At 230 his Honour referred to the Mison tests in terms of the finality of the consent under challenge. As will become apparent, certainty or finality is not the true issue. Rather, the question is whether the decision constitutes a "consent" in that the exercise by a consent authority of the power conferred by a s80(1)(a) of the EP&A Act answers the description of a "consent" or a "consent to that application"; that is to the development, the subject of the application: Winn v Director-General of National Parks & Wildlife (2001) 130 LGERA 508 at 514-15 [11]-[19]. 63 The primary judge then turned her attention to the decision of this Court in Transport Action Group Against Motorways Inc v Roads and Traffic Authority (1999) 46 NSWLR 598 in which Mason P, with whom Sheller JA agreed, summarised the principles in Mison in the following terms (at 628 [115]): "Priestley JA (with whom Meagher JA agreed) construed s91(1)(a) [now s80(1)(a)] as precluding the imposition of a condition which had the effect of significantly altering the development in respect of which the application was made. Clarke JA (with whom Priestley JA and Meagher JA also agreed) held that the act of granting consent imported a requirement of finality and certainty. The impugned condition fell foul of each such limitation because it left open the possibility that development carried out in accordance with the consent of the condition would be significantly different from the development for which the application was made or consented to." 64 At 628 [116] the President observed that the requirement of finality and certainty referred to in Mison derived from the stipulation in s91 (now s80) that the granting of a consent was an act in law which represented the final disposition of the development application. Furthermore, his Honour noted (at 629 [117]) that Mison does not invalidate every development consent containing conditions which leave matters open for later decision. In fact, this Court recognised that questions of degree were involved and, as Priestley JA pointed out (at 737-738), the impugned condition in that case necessarily involved a purported conferral of power to the chief town planner to require even significant alterations to the room and floor layout of a single dwelling, including alterations that departed from the plans of the development as approved by the claimant. Thus the President observed that " Mison does not stand for the proposition that any retention of flexibility or any delegation to a third party of the function of supervising a later stage of the development is prohibited."

See also Scott v Wollongong City Council (1992) 75 LGRA 112 at 118; Minister for Urban Affairs and Planning v Rosemount Estates Pty Ltd (1996) 91 LGERA 31 at 94-96. 65 In the last-mentioned case, conditions of a development consent relating to a massive open-cut coal mining project directed that the development comply with the claimant's requirements for visual amenity and stipulated that an environmental plan including a comprehensive water management plan be prepared in consultation with the Environment Protection Authority and other statutory authorities. It was held, both at first instance and in this Court, that none of those conditions were capable of resulting in any change to the core purpose of the development the subject of the application and to which consent had been granted. Instead, the conditions were held to be ancillary to that purpose, notwithstanding that they addressed important matters. Because they did not leave to the claimant the power to determine matters which may effect a change in the nature, extent or characteristics of the development, they did not offend the principles in Mison. 66 In a passage referred to by the primary judge at [16], the President also observed (at 629 [122]) that it had been recognised that the Mison principle was not contravened merely because a consent condition required a management plan to address some issue. His Honour said: "The mere fact that a proposed activity in its original or modified form contemplates plans of management as integers of or means of carrying out an activity cannot be a ground of invalidity." 67 Applying these principles, the primary judge concluded (at [17]) that no error of law had been made by the Commissioner in his findings in relation to Exhibit N, including his decision to leave two outstanding matters with respect to the content of Exhibit N for further resolution between the parties. She continued in these terms: "Neither of these matters affects the fundamental nature of the proposal before the Commissioner. The Commissioner's statement in his judgment that the OMP was critical to whether consent ought to be granted does not require that he resolve every last issue concerning the contents of the OMP in his final judgment if, in the exercise of this discretion, he considers there are matters which are suitable to be left to the parties to resolve, with the proviso in this case that it come back before him for final determination if the parties were unable to agree. There has been no failure to resolve a critical issue before granting development consent by the Commissioner and the claimant is unsuccessful on this ground."

(b) The second ground - failure to give consideration to the character of the area 68 The primary judge noted (at [18]) that the relevant sections of the Commissioner's judgment in relation to the issue of character were those set out in paras 105-108 (see [50]-[51] above). Her Honour then observed that the Commissioner had also considered the impact of the proposed development on car parking in the immediate area, tree loss and amenity on various properties in the surrounding area, and in relation to noise. After considering the expert evidence and the evidence from resident objectors, the Commissioner concluded that the impacts of the proposed development were acceptable with respect to these matters. 69 Before the primary judge and before this Court, the claimant submitted that the Commissioner had erred in law by failing to give proper, genuine and realistic consideration to resident submissions pursuant to s79C of the EP&A Act with respect to determining the character of the area and the impact of the proposed development on that character. It was argued that in considering the issue at paras 105-108 of his judgment, the Commissioner had limited himself simply to the LEP and the objectives of the 3(a) zone. Having found that the development was consistent with those objectives, the Commissioner then determined that the adverse impact on the character of the area as set out in the zone was acceptable. The claimant submitted that the Commissioner had therefore erred by failing to consider the impact of the proposed development on the character of the area generally as required by s79C(1)(b) of the EP&A Act. 70 At [22] the primary judge set out the provisions of that section which, relevantly, are in the following terms: "(1) In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application: … (b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality" 71 Her Honour then made reference to the decision of this Court in Weal v Bathurst City Council (2000) 111 LGERA 181, where Giles JA at 200-201 considered the relevant obligations of a consent authority under s90(1) of the EP&A Act (now s79C) and the court's role in reviewing that authority's determination in the following terms (omitting citations): "Under the Environmental Planning and Assessment Act 1979 as it then stood, in determining a development application the consent authority was required to take into consideration such of a number of specified matters as were of relevance to the development the subject of the application (s90(1)) … The terms of s90(1) were mandatory: the council was obliged to take into consideration relevant matters from the catalogue of matters in s90(1), and to weigh them up in determining the development application. It had to inform itself sufficiently to be able to take into consideration the matters of relevance to the determination of the development application. With particular reference to para (b) of s90(1), it had to be aware not only of the impact and the likely harm but also of available protective or mitigating means: so the conditions to be included in the consent were an integral part of the consideration … Taking relevant matters into consideration called for more than simply adverting to them. There had to be an understanding of the matters and the significance of the decision to be made about them, and a process of evaluation, sufficient to warrant the description of the matters being taken into consideration …" 72 Her Honour acknowledged (at [25]) that the Commissioner had explicitly identified the impact of the development on the character of the area as an issue in paras 105-108 of his judgment. She considered that he had chosen to respond to that issue in the context of the Council's current LEP which he was entitled to do. The basis of the Council's criticism was that the Commissioner had failed to properly consider submissions as to the character of the area and the impact of the proposed development on that character, the relevant area being the surrounding residential areas. 73 After referring to a number of authorities which established that it was inappropriate to adopt a "fine-tooth comb" approach when examining the reasons of a Commissioner for errors of law pursuant to a s56A appeal, her Honour concluded in the following terms (at [26]): "The judgment when viewed as a whole clearly suggests the Commissioner was aware of the character of the area and gave it proper consideration. The Commissioner's judgment identified the nature of the area surrounding the proposed development, the number of resident views received and the general nature of their concerns and the Commissioner took a view of the site and immediate locality. The Commissioner has adopted an accepted approach of considering the particular zone where the site is proposed to see if it conforms and has concluded that it does. Given the detailed treatment by the Commissioner for specific issues raised such as traffic, parking, noise and amenity impacts on the immediate neighbours, all of which issues reflect the issues raised by the parties, there is no error of law disclosed in his reasoning."

The claimant's grounds of appeal 74 I have set out the statement of the Council's grounds of appeal under s56A in [53] above. These were essentially replicated in its draft Notice of Appeal to this Court where, relevantly, Grounds 1 and 2 are in the following terms: "1. Her Honour erred in finding that the Commissioner had considered an essential matter, being the issue of the character of the area. 2. Her Honour erred in finding that there had been no failure to resolve a critical issue by the Commissioner, being the content of Operation Management Plan, before the granting of development consent." 75 Although not directly raised by these grounds of appeal and, in particular the second ground of appeal, the claimant in its supplementary written submissions contended that not only did the Commissioner not have the power to reserve for himself a right to refuse development consent after granting it, but also Order 4 of his orders granting liberty to restore the appeal with 48 hours notice if no agreement was reached by the parties on the amendments to Exhibit N was beyond power. It was argued that in allowing the appeal and granting consent on 12 July 2005, the Commissioner became functus officio subject only to his power under the slip rule to amend an order affected by mistake and the like. In this respect, in the course of oral argument on the appeal the claimant eschewed any reliance upon the decision of this Court in Mison. I shall return to this point when dealing with the second ground of appeal.

Ground of Appeal 1: The failure of the Commissioner to consider the issue of the character of the area 76 In essence, the Council's submission on this ground was that s79C of the EP&A Act required the Commissioner to consider whether the development would detrimentally affect the existing character of the area as revealed by the actual built form and uses of the area adjoining the proposed development and, therefore, external to the commercial zoning of its site. It was submitted that the Commissioner erred by limiting himself to consideration of the character of the 3(a) zone and had thus failed to give proper, genuine and realistic consideration to the actual character of the general area. In other words, by finding in [108] that the appropriate character of the area was that envisaged by the 3(a) - General Business Zone as reflected in the objectives of that zone, and that the development was consistent with those objectives, the Commissioner had truncated the locality within which he was required to judge the character of the area by excluding the surrounding residential area. 77 The Commissioner acknowledged that the residents had not only raised issues of noise and safety relating to the loading dock but, in addition, had expressed "general concern of the change in character of the area." 78 It is apparent, however, that the residents' complaint that the development would have an unacceptable impact on the character of the area (Council's Issue 9) was that the residential character of the area would be impacted upon by a development within the commercial zone which, from the residents' point of view, was intended only to service the commercial and retail needs of the immediate locality. The complaint was that the proposed development would provide a retail facility that would attract custom beyond the immediate area and, as a consequence, would generate additional traffic which would impact upon pedestrian safety and cause increased noise, thus effecting a change to the character of the existing centre that currently provided largely local service needs to the immediate locality: see Commissioner's judgment at [105]. 79 This issue had only been raised by the residents. The court appointed town planning and traffic engineering expert, Mr Gary Shiels, and the respondent's consultant town planner, Mr Andrew Darrach, and traffic engineer, Mr Graham Pindar, all regarded the amended development proposal as acceptable in terms of its impact on the character of the area. As I have noted, the claimant did not call any expert town planning or traffic evidence of its own to express a contrary view. The expert evidence was, therefore, all one way. 80 In my opinion the Council's challenge based on its first ground of appeal should be rejected. As the primary judge noted (at [29]), the Commissioner's judgment clearly identified as an issue whether the proposed development would have an unacceptable impact on the character of the area. Furthermore, as her Honour also noted (at [33]), the Commissioner was well aware that the commercial zone was surrounded by a residential zone in which dwelling houses were the predominant urban form. He was also alert to the fact that the likely impacts upon the surrounding residential character of the area would be related to additional traffic, pedestrian safety and noise. It is clear that he took all those impacts into account. 81 In order to determine those impacts it was, in my view, necessary for the Commissioner to identify whether the proposed development was consistent with the objectives of the 3(a) - General Business Zone in order to satisfy himself that those objectives contemplated a development of the nature of that proposed and which would give rise to impacts anticipated to be associated with such a development. He was then required to determine whether those impacts were acceptable in terms of the nature of the surrounding locality. In my opinion, the Commissioner clearly undertook that exercise. As a consequence, the primary judge was correct in finding that no error of law had been disclosed on the part of the Commissioner in so doing.

Ground of Appeal 2: The failure to resolve the outstanding amendments to Exhibit N before granting development consent 82 As I have observed in [24] above, the Commissioner had before him Exhibit N, in respect of which he concluded (at [52]) that, based on the evidence of the experts, the general consensus was that if the loading dock was operated in accordance with Exhibit N, it would operate in an acceptable manner. The issue which he then addressed was whether Exhibit N in its then form could be relied upon to provide some certainty in the operation of the loading dock so as to provide a reasonable level of amenity and safety for adjoining residents and others using the Mulga Road shops. 83 Having acknowledged that the contents of a management plan such as Exhibit N could be critical to the decision of whether a development application was approved or refused, he then asked himself some eight questions, each of which he dealt with individually and answered in the affirmative. 84 In the course of dealing with these individual questions the Commissioner required five amendments to Exhibit N to which I have referred above. In respect of three of those amendments he specifically indicated the precise amendment required. In respect of those amendments there could be no dispute. Only two proposed amendments had the potential to give rise to a dispute, namely, those referred to in [58] and [71] of the Commissioner's judgment, which I have set out in [25] and [33] above. The claimant relied only upon those two amendments, both before the primary judge and this Court, in support of the proposition that those amendments constituted essential unresolved elements of Exhibit N which the Commissioner had failed to resolve before he granted the consent or, alternatively, that he had deferred for later consideration contrary to the decision of this Court in Weal v Bathurst City Council (2000) 111 LGERA 181. 85 Furthermore, in the Council's written submissions it was argued that the Commissioner's failure to deal with these alleged essential matters resulted in the consent lacking finality and certainty within the meaning of Mison. However, as I have indicated, the claimant abandoned reliance on Mison in its oral submissions before this Court. In my opinion, it was correct to do so. 86 Nevertheless, it is instructive that Mison was recently considered by this Court in Kindimindi Investments Pty Ltd v Lane Cove Council (2006) 143 LGERA 277. At 285-286 Basten JA, with whom Handley JA and Hunt AJA agreed, summarised the Mison principles in the following paragraphs: "24 In accordance with principles explained by this Court in Mison v Randwick Municipal Council (1991) 23 NSWLR 734, there may be no lawful consent to a development application where the consent falls within one of two categories of overlapping circumstances. The first category is where a condition has the effect of 'significantly altering the development in respect of which the application is made': at 737B (Priestley JA). The second category is where a claimant has purportedly granted consent, but in terms which lack either finality or certainty, so that there is, in substance, no effective consent to the application. 25 These two categories may overlap in circumstances where consent is granted subject to a condition which allows for significant variation of the development proposed. 26 In Mison , the condition in question required that the overall height of the dwelling house to be constructed be reduced 'to the satisfaction of Council's Chief Town Planner'. Because the approved height remained to be determined, and might, the Court held, fall at any point within an undefined range, the consent left open the possibility that that which was consented to would be significantly different from the development the subject of the application. 27 Alternatively, it was said that there was a substantial degree of uncertainty in relation to a condition which was 'an important aspect of' the development: p 737B (Priestley JA). Meagher JA adopted a similar approach at 741. Clarke JA described the question of height as an aspect of the development 'which was beyond question of critical importance'. However, his Honour preferred to rest his decision on the lack of finality, rather than the possibility of there being a consent to a significantly different development: p 740F. Clarke JA also considered that the failure to specify a criterion for determining height was a fatal omission. 28 Although different language is used in relation to the separate categories of invalidity, it would seem that the test of uncertainty or lack of finality, being determined by reference to an important aspect of the development, requires that what is left uncertain must be the possibility that the development as approved may be significantly different from the development the subject of the application. Thus, the result should not be different depending upon which approach is adopted: a consent will only fail for uncertainty where it leaves open the possibility of a significantly different development. On other hand, a consent may fail, within the first category, where a condition of great precision and certainty of operation results in a significantly different development. Whichever category is preferred in the case of a consent which lacks certainty or finality, it is helpful to bear in mind the relationship between the two tests." 87 Quite properly the claimant, in abandoning reliance upon Mison, accepted that neither of the amendments required by the Commissioner in [58] and [71] of his judgment left open the possibility that the development the subject of the Commissioner's grant of consent on 12 July 2005 would be significantly different from that the subject of the application. 88 Furthermore, in terms of the test adumbrated by Clarke JA in Mison, there had been no failure on the part of the Commissioner to specify the criteria for determining the content of the two disputed amendments. 89 It must also be remembered that, as Basten JA observed in Kindimindi at 292 [55], and as noted by Mason P in Transport Action Group Against Motorways Inc at 628 [112], mere uncertainty may not give rise to invalidity. Whether or not uncertainty does give rise to invalidity depends upon a different question, namely, whether the condition alleged to be uncertain complies with the statutory limits imposed upon the power of the consent authority. To the extent that the cases accept that a degree of "practical flexibility" (per Samuels AP in Scott v Wollongong City Council at 118) or imprecision may not result in invalidity, this is because the degree of flexibility or imprecision adopted does not contravene any statutory limit on the power being exercised. 90 As I observed in [62] above, if a purported consent lacks finality or certainty in the Mison sense, it is because that lack contravenes the statutory limits of the consent authority's power with the result that there is no valid consent because the development consented to is not that for which approval was sought. Again, as Basten JA pointed out in Kindimindi at 293 [56] and [57], a condition will not necessarily be beyond power because it is incidental, trivial, unimportant or mere surplusage or because it lacks specificity or particularity: it will only be invalid if it falls outside the class of conditions permitted by the EP&A Act. 91 Accordingly, in the present case, had the consent been granted by the claimant and contained a condition that Exhibit N be amended to the satisfaction of the claimant in the manner proposed by the Commissioner in [58] and [71] of his judgment, there could be no doubt that such a condition would not have run foul of the Mison principles and, therefore, would not have been open to challenge as to its validity. However, in the present case, the consent was not granted by the claimant but by the Land and Environment Court. What difference, if any, does this make? 92 At one stage the claimant submitted that by requiring the amendments referred to in [58] and [71] of his judgment and by granting liberty to apply in the event that the parties could not agree on the terms of those amendments, notwithstanding the parameters which he had set with respect to them, the Commissioner had deferred for later consideration by himself, in the event of the parties failure to agree on those amendments, an essential element of Exhibit N contrary to this Court's decision in Weal. In my opinion there is no substance to this submission. In Weal, Giles JA, with whom Priestley JA agreed, stated the relevant principle in these terms (at 201 [80]): "Taking relevant matters into consideration called for more than simply adverting to them. There had to be an understanding of the matters and the significance of the decision to be made about them, and a process of evaluation, sufficient to warrant the description of the matters being taken into consideration."

See also Zhang v Canterbury City Council (2001) 51 NSWLR 589 at 601 [62] per Spigelman CJ. 93 The assertion that the Commissioner had deferred for later consideration an important element of Exhibit N is only legally relevant if it leads to the conclusion that he failed to take into consideration and resolve relevant matters contrary to the admonition contained in the chapeau of s79C(1) of the EP&A Act. In my opinion, there was no basis which could support such a submission. The very contrary is the case as it is clear that the Commissioner gave serious and detailed consideration to the issues raised by the loading dock and its operation and resolved them to the extent necessary for his decision to grant the consent subject to the conditions he imposed (see [105]-[107] below). Accordingly, the primary judge was correct when she held (at [17]) that the Commissioner had not failed to resolve a critical issue before granting the consent. However, it is to be noted that the claimant argued this issue before her Honour based on a breach of the Mison principles whereas before this Court reliance on Mison was eschewed and replaced by reliance upon Weal. In my opinion that reliance was also misplaced. 94 The inevitability of a challenge based on either Mison or Weal failing before this Court was obviously recognised by the claimant who, in its supplementary written and oral submissions, redirected its challenge to the validity of the consent to the Commissioner's lack of power to grant liberty to apply. Accordingly, so it was submitted, the Commissioner had granted development consent and had imposed a condition (103) which required the Loading Dock Operation Management Plan to be complied with at all times in circumstances where the contents of that plan had not been finally determined. 95 In the foregoing context, it was therefore submitted that by reserving liberty to apply, the Commissioner contemplated that he had thereby reserved to himself the right to refuse development consent if the amendments he required could not be agreed notwithstanding that he had already granted it. Such a reservation was, it was contended, beyond power. It was thus submitted that the Commissioner had made a final order which was beyond recall: Bailey v Marinoff (1971) 125 CLR 529 at 530; DJL v The Central Authority (2000) 201 CLR 226 at 245 [38]. The rule was stated in Bailey by Barwick CJ in these terms: "Once an order disposing of proceedings has been perfected by being drawn up as the record of a court, that proceeding apart from any specific and relevant statutory provision is at an end in that court and is in its substance, in my opinion, beyond recall by that court. It would, in my opinion, not promote the due administration of the law or the promotion of justice for a court to have power to reinstate a proceeding of which it has finally disposed." 96 It was submitted that a statutory court such as the Land and Environment Court has no inherent jurisdiction to re-open final orders (DJL at 240-241 [24]-[27]; Cachia v Colaco (2003) 132 LGERA 62 at 78-79 [83]-[87]). In Cachia, McClellan CJ observed (at [87]) that "The powers of the Land and Environment Court have been reconsidered following the decision in DJL v Central Authority (2000) 201 CLR 226 where the High Court held that the powers of the Family Court, as a statutory court, are conferred upon it expressly or by implication by its governing legislation and that, although a court of superior record, it has no inherent power to re-open final orders after they have been entered. Two decisions of this Court have held that the observations in the High Court in DJL apply equally to this Court, so that there is no inherent jurisdiction to set aside a perfected order …" 97 Nevertheless, the claimant accepted that an order of a statutory court such as the Land and Environment Court may be supplemented by way of liberty to apply provided that such liberty is not used to alter or change an order but merely to work out or implement the order: Cristel v Cristel [1951] 2 KB 725 at 728; Phillips v Walsh (1990) 20 NSWLR 206 at 209-210. In the latter case, McLelland J, after referring to Bailey v Marinoff and other decisions of the High Court that established the principle that when proceedings have been disposed of by a final order which has been entered, they are at an end and cannot be revived, further observed: "There are a number of exceptions and qualifications to this principle but none that has any relevance to the present application, unless it be that subsequent to a final order application may be made for the purpose of dealing with a matter involved in, or arising in the course of, working out that order; for example, by making more specific provision for its implementation of why modifying its operation to take account of some subsequent change of circumstance or by enforcing it. This exception or qualification does not, however, extend to an application made for the purpose of giving substantive relief not sought in the statement of claim or which is substantially different to that given by the final order." 98 In Muriti v Prendergast [2005] NSWSC 281, White J observed (at [158]) that "An order may be a final order for the disposition of proceedings, even though subsequent orders may need to be made finally to work out the rights of the parties under that final order ( Meehan v Glazier Holdings Pty Lt d (2002) 54 NSWLR 146 at 153) or to adjust the rights of the parties under the final order by reason of subsequent events … the jurisdiction under a reservation of further consideration, or the grant of liberty to apply, to make additional orders by way of working out a final order to make some more specific provisions for its implementation, or by modifying its operation to take account of subsequent change of circumstances, or by enforcing it, does not extend to an application for substantive relief substantially different from that given in the order." 99 Notwithstanding these statements of principle, the claimant submitted that, reflecting the finality principle, a consent granted by the Land and Environment Court operates and is effective from the date of the order granting consent: EP&A Act, s83 (4) and (5). Accordingly, in the present case the order of the Commissioner granting consent became operative and effective on 12 July 2005. The Commissioner thereafter became functus officio subject only to the powers under the "slip rule" embodied in Pt 10 r7(1) of the Land and Environment Court Rules 1996 (the Rules) and the Court's power to set aside or vary an order in the circumstances set forth in Pt 15 r9 of the Rules. It is to be noted that one of the circumstances in which the Court has power to vary a final order (rule 9(e)) is if it "does not reflect the intention of the Court". 100 The power of the Land and Environment Court to grant liberty to apply, having granted a development consent, was recognised by Lloyd J in Detala Pty Ltd v Byron Shire Council (No 2) (2000) 107 LGERA 422. At 427-428 his Honour referred to s83(5) of the EP&A Act as an exception to the rule that a perfected judgment is beyond recall. This was because that provision, which empowered the Court to fix the date upon which a development consent is taken to become effective and operate after and consequential upon a final determination to grant that consent. Further, the fixing of such a date did not amount to a setting aside or re-opening of that final determination. As his Honour observed at 427 [17]: "The matter is not being re-litigated. The subsection seems to be a form of statutory liberty to apply. As with the reservation of liberty to apply, it does not extend to the variation or amendment of the judgment or orders, but enables the making of a further order which is consequential to the original order and relating to its implementation or carrying into effect. Mr Davison's comparison with the making of an application for costs under s 69 of the Court Act after the delivery and entry of a judgment appears to be a valid analogy. (Section 69 of the Court Act may be contrasted with s 52(1) of that Act, which relates to orders for costs in the Court's summary criminal jurisdiction, which provides that a costs order must be made ' in and by the conviction or order '.) In this case, the fixing of the date under s 83(5) does not infringe the principle that a judgment or determination of the Court is ' final and conclusive '. The determination remains the same." 101 Accordingly, his Honour held that s83(5) involved an order as to a subsidiary matter and did not infringe the principle that a judgment or determination of the Court was "final and conclusive". The determination remains the same. 102 In my opinion the same approach is reflected in Pt 15 r9 of the Rules. Furthermore, even in the absence of that rule, I see no reason in principle to deny the Land and Environment Court the power to make orders necessary for the working out of its orders including an order granting a development consent. Such an order proceeds on the basis that a consent has been granted as a matter of final determination by the Court. No question of recalling or setting aside the consent is involved, nor is any question of whether it should be granted or refused re-opened. No matter or issue is to be re-litigated. As will appear below, the order made by the Commissioner on 8 November 2005 pursuant to the liberty to apply granted by him on 12 July 2005 did not in my opinion offend these principles. 103 Nevertheless it was submitted by the claimant that even if the Commissioner, contrary to the Council's submissions, had not deferred an essential matter for later consideration, he had reserved for himself the right to alter or even refuse the consent in circumstances where that consent was then beyond recall. 104 It is convenient to set out again [118] of the Commissioner's judgment. He said: "It is necessary for the Operation Management Plan to be amended to reflect the findings in this judgment. Accordingly, I direct the parties to confer and provide an amended Operations Plan of Management within seven days. Liberty is granted to restore the matter with 48 hours notice if no agreement is reached on the amended Operations Plan of Management." 105 Given the context in which liberty to apply was granted and the nature of the amendments in question, I would not accede to the Council's submission that the Commissioner was purporting to reserve to himself the right to refuse the consent which he had already granted or to alter it in a material respect. On the contrary, his intention with respect to the two disputed amendments required to Exhibit N were made clear. The only question that remained went to the working out of that intention in Exhibit N, the contents of which had otherwise already been accepted. 106 In this regard, and as the respondent submitted, Exhibit N already made provision that in the event that an unscheduled truck arrived and the loading dock was not free, the driver was to be instructed to reschedule the delivery and return at an agreed later time. The amendment required by the Commissioner in [58] was merely intended to mitigate the inflexibility of that requirement where the rescheduling of the delivery was neither appropriate nor necessary. Exhibit N was to be amended to provide a suitable location where trucks could temporarily park in that situation. Locations chosen were not to potentially impact on the amenity of the residential area. In my opinion the Commissioner must clearly have considered that there were appropriate suitable locations where trucks could temporarily park without causing any unacceptable impact and the Council did not contend to the contrary. It was simply a question of working out the final form of the amendment. 107 The same comment applies to the amendment sought by the Commissioner in [71], namely, a procedure for updating or changing the requirements of the Operations Management Plan. This was ultimately reflected in the reference to s96 of the EP&A Act to which I have referred in [47] above. As I indicated, the amendment merely reflected the law. 108 In the foregoing circumstances, it is apparent that by reserving liberty to apply the Commissioner was not reserving to himself the right to revive or alter the consent which he had granted or, for that matter, the conditions he had imposed; nor was he reserving to himself the power to refuse the consent he had already granted. There was no question that he had indicated the parameters of the amendments he required. No doubt, if the amendment referred to in [58] of his judgment could not be satisfied because a suitable location that did not impact upon the residential amenity of the locality could not be selected, then the amendment would merely have been abandoned. Such an abandonment would in no way have altered or changed the consent which the Commissioner had granted or in any way impacted upon its "finality". The same observation is applicable to the amendment referred to in [71]: if that amendment had not been made then s96 would still have permitted an application to have been made to modify Condition 103 in which Exhibit N had been incorporated. 109 Finally, reference should be made to s23 of the Court Act which empowers the Court, in relation to matters in which it has jurisdiction, to make orders of such a kind as it thinks appropriate: cf Pelechowski v Registrar, Court of Appeal (NSW) (1999) 198 CLR 435. In the particular circumstances of the present case, in my opinion that provision empowered the Commissioner to grant liberty to apply for him to determine the final form of the amendments to Exhibit N which he had required to be made. In my view, the reservation by the Commissioner of the power to resolve any disagreement as to the terms of the amendments to Exhibit N did not in any way detract from the finality of the grant of consent made by him on 12 July 2005; nor did it detract from the operation and effect of the consent as and from that date. In any event, it is clear that it was the intention of the Court that Exhibit N, which had been incorporated into Condition 103, was to be amended in the manner that the Commissioner had required and, therefore, intended. To the extent to which Exhibit N did not reflect that intention before he made the order on 8 November 2005, the Commissioner was empowered under Pt 15 r9(e) of the Rules to vary Exhibit N to reflect the amendments that he intended. 110 In a sense, the Commissioner's order granting liberty to apply was no more than a foreshadowing of an application, if necessary, pursuant to that rule so as to ensure that the Operations Management Plan incorporated in Condition 103 and which formed part of the Commissioner's order of 12 July 2005 granting consent to the proposed development duly reflected his intention as to its final content. 111 Accordingly, for the foregoing reasons, I would reject the Council's challenge to the validity of the consent granted by the Commissioner on 12 July 2005, including the order made by him on 8 November 2005 amending Exhibit N.

Conclusion 112 In my opinion, each of the challenges by the claimant to the validity of the consent granted by the Commissioner has failed. In these circumstances I would propose the following orders:

(a) Grant leave to appeal upon condition that a notice of appeal containing the grounds of appeal argued on the appeal be filed within seven days of the date of these orders;

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

(2000) 107 LGERA 422

(2006) 143 LGERA 277

(2000) 111 LGERA 181

(2001) 130 LGERA 508

At a glance

Court

Decision date

Before

Source

Judgment (46 paragraphs)

Parties

Cases Cited (17)