These provisions provide a basis for imposing a condition, but compliance with those provisions, or either of them, is neither necessary nor sufficient. It may be (although it need not be decided for present purposes) that satisfaction of one of the paragraphs of s 80A(1) is a necessary element of a valid condition. In this case both the challenged conditions would satisfy each of paragraphs (a) and (g). More importantly, that satisfaction may not be sufficient if the condition is uncertain but falls outside the terms of sub-s (4). Whether, if it does so, the condition may properly be described as invalid is a separate question, as is the effect of any such invalidity on the consent as a whole. It is convenient to consider the question of 'uncertainty' in the context of both conditions 1(a) and (b), after addressing the other challenges.
45 In relation to par (e) of condition 1, the amendment required is expressed in terms of a particular outcome or objective, namely the provision of a safe pedestrian path between particular points. That aspect of the condition would satisfy of subs (4)(a). The second question is whether it is expressed "in a manner that identifies" clear criteria against which the achievement of the objective must be assessed. In my view it can satisfy that requirement, by reference to the design being "in accordance with" the Stapleton review, the relevant part of which should be understood as incorporated by reference. The first part of condition (e) merely restates the recommendation of the Stapleton review up to the phrase "commercial tenants". Stapleton's recommendation then concluded:
"We understand that these design amendments are currently underway."
46 If that were all that the review said, it would fail to specify any criteria against which an amendment could be judged. However, in discussing the reason for the recommendation, the review identified "the site distance standards provided in AustRoads Part 13 (section 3.3.4) as not being met on the present plan". Although the route to this end is slightly obscure, the intended result of the condition is that the alteration must achieve compliance with that specified standard. That result constitutes identification of a relevant criterion for the purpose of s 80A(4).
47 The primary finding of the Court below in respect of this condition was that it did not "leave open the possibility of a fundamentally different development": [2005] NSWLEC 398 at [70]. His Honour also concluded "for the reasons referred to above" that it satisfied the requirements of s 80A(4): [2005] NSWLEC 398 at [77]. Because his Honour did not apply the statutory test in terms, and because the test which he did apply was inappropriate, it must be concluded that his Honour did not address the validity of the condition in accordance with the requirement of the EP&A Act. Nevertheless, the error was not material because, if properly addressed, the condition did fulfil the requirements of s 80A(4).
48 Dealing next with condition 2, it may be noted immediately that each of the proposed modifications had been agreed to by the proponent of the development, with the result that it is at least unlikely that the conditions lacked certainty or finality. The alteration contained in par 2(m) required consistency with details shown in design sketch SK 13. This is not, in my view, a condition expressed with respect to outcomes or objectives and criteria by which those may be achieved. It is a condition which modifies a detail of the development in express terms and, if statutory description were required, falls within s 80A(1)(g). The Council filed a notice of contention supporting the validity of the condition on that ground, which contention, in my view, should be accepted.
49 In the Court below, evidence had been given that the drawing was too rough to constitute an appropriate specification of architectural details. If that were the basis of challenge, it would be difficult to perceive any error of law which might be established by reference to that evidence. His Honour treated the challenge as invoking the two categories of invalidity identified in Mison and, understandably, rejected the challenge summarily at [74]. His Honour also stated at [77], in conclusory form, that the conditions satisfied the requirements of sub-s 80A(4). I do not think that that provision was engaged, but no material error of law is demonstrated by that finding.
50 There is no basis for challenging condition 2(m) and ground 3, with respect to that condition, should be rejected as misconceived.
51 Before returning to the consequences of the conclusion with respect to 1(b), it is convenient to refer to his Honour's conclusions with respect to condition 1(a), which he held involved "some degree of uncertainty" (at [62]) and which failed to comply with s 80A(4): [2005] NSWLEC 398 at [77]. His Honour also held that an amendment to the drawings, as proposed by condition 1(a), would not give rise to a development which was "fundamentally different" to that for which consent was sought.
52 The test in Mison, noted above, was not expressed in terms of fundamental difference, but of a consent having "the effect of significantly altering the development". That, as was expressly recognised by Priestley JA, was a different and lesser test than that of compliance with a condition which would make the application an "entirely different development": at 23 NSWLR, 737B. It is true that in Winn v Director General of National Parks and Wildlife (2001) 130 LGERA 508 at [124]-[126], Powell JA spoke of "fundamentally altering the nature of the development" but, because the discussion followed immediately upon lengthy extracts from the judgments in Mison, without any suggestion that a different test was being applied to that espoused in Mison, I would not understand his Honour to have adopted the "harder to establish test" eschewed by Priestley JA in that case. On the other hand, the discussion in the judgment of Stein JA at [209]-[216], adopts a variety of terminology, and the precise implications of the variations may need to be explored in another case. The reason why that is not necessary in the present case derives from the nature of the errors asserted.
53 The trial judge also found that condition 1(a) of the consent did not specify the extent of the alteration required and the drawing SK 03A did not show any proposed redesign: [2005] NSWLEC 398 [62]. His Honour further noted the submission made by the Council and Fabcot that the condition was otiose because the drawing SK 03A already indicated the required setback. His Honour concluded, when considering the original consent, that the matter remained unclear. However, in dealing with the modified consent, his Honour noted that the condition had been varied in terms to provide that the housing roof form be in accordance with drawing SK 03A so that, in effect, no alteration was required to that aspect of the development: see [2005] NSWLEC 398 at [124].
54 According to the first category identified in Mison, the imposition of a condition which has the effect of significantly altering the development, will invalidate the consent because the development consented to is not that for which approval was sought. That test requires, of course, an evaluative judgment. Mison itself involved the construction of a single house. The principle it established would not necessarily operate in the same way in relation to a complex and extensive development with a number of severable elements. In the present case, accepting that a certain lack of precision in the two conditions 1(a) and (b) may make an evaluative judgment difficult, treating the development as a whole, neither the proposed change to the roof line of the residential component, nor the closing in of two sides of the carpark component, could be seen as significantly affecting the development. On the other hand, it would be possible, in some circumstances, to treat a change in the roofline of the residential part of the development as a significant alteration, if viewed in isolation as a separate part of the development. Whether that is the appropriate question to ask is an issue which can be put to one side, however, as no challenge was mounted on that basis.
55 A challenge based on the second category identified in Mison, which was relied upon, involves two elements which may need to be separated. Thus, a condition may be uncertain but final, in the sense that it does not foreshadow a further judgment, either by the consent authority, or by a delegate or a third party. However, as noted by Mason P in Transport Action Group Against Motorways Inc v Road and Traffic Authority (1999) 46 NSWLR 598, at [112] mere uncertainty may not give rise to invalidity. Whether or not it does is likely to depend upon a different question, namely whether the condition complies with the statutory limits imposed upon the power of the authority. To the extent that the cases accept that a degree of "practical flexibility" (as in Scott v Wollongong City Council (1992) 75 LGRA 112 at 118 per Samuels AP) or imprecision (as in Genkem Pty Ltd v Environment Protection Authority (1994) 35 NSWLR 33, per Gleeson CJ) may not result in invalidity, the reason is that the relevant degree of flexibility or imprecision does not contravene any statutory limit on the power being exercised.
56 In Winn, Stein JA at [213], cited with approval a statement of Lord Reid in Kent County Council v Kingsway Investments (Kent) Ltd [1971] AC 72 at 90:
"Suppose that a planning authority purports to impose a condition which has nothing whatever to do with planning considerations, but is only calculated to achieve some ulterior object thought to be in the public interest. Clearly in my view the condition should be severed and the permission should stand."