Ku-ring-gai Council v Bunnings Properties Pty Ltd

Background and Chronology

1. The subject site is located at 950-950A Pacific Highway and 2 Bridge Street, Pymble, and is zoned "B7 Business Park" under the Ku-ring-gai Local Environmental Plan 2015 ("LEP"), which commenced on 2 April 2015.
2. As noted in Council's submissions in chief (par 7), existing on the Site is a 5-storey commercial building (known as the former 3M Building), set in an established landscape setting, with driveways accessing Bridge Street, a 2-storey carpark, and, on the second allotment, a separate 2 storey building with another carpark and driveway accessing Bridge Street.
3. The relevant DA was lodged with Council on 8 April 2015.
4. As also noted in Council's submissions (par 5) the applicant for consent, Bunnings, sought approval for the demolition of existing structures, tree removal, earthworks and retaining walls, construction of a four-storey building and its use for hardware and building supplies, road widening and driveway access from Ryde Road, signage, landscaping, consolidation of titles and Stage 1 approval for a community garden.
5. On 1 May 2015, the "3M" building became a listed heritage item under an amendment to the LEP.
6. On 26 June 2015, Bunnings lodged its Class 1 appeal against Council's deemed refusal of its DA.
7. On 6 November 2015, the Court granted leave for Bunnings to rely on amended plans, and the amended application (subs par 10) sought consent for "demolition of the existing 5-storey [3M] office building ... at 950 Pacific Highway and ancillary structures, the 2-storey concrete car park at 950-950A Pacific Highway, the hardstand car parking area on No. 950-950A Pacific Highway, and the part 2 and part 3 storey office building, garage and metal shed at 2 Bridge Street".
8. On 26 to 28 April 2016, the Commissioner heard the merits appeal. He handed down his "first decision" on 20 July 2016 ([2016] NSWLEC 1658). He made a series of findings, in a lengthy judgment, much of it concerned with competing evidence on heritage issues. He also addressed design and vegetation issues. He relevantly found "little if any" heritage significance in the 3M building, and he also found that the asserted threat to a particular tree (numbered "135" in the material) would not warrant refusal of consent.
9. The learned Commissioner concluded (at [104]-[110] - emphasis mine): 104 In considering the different evidence from the experts and with the benefit of a site inspection, I am not satisfied that the proposed development is acceptable in the form presented to the Court. That is not to say that a "Hardware and building supplies", in some form, is not capable of being constructed on the site. ... 105 During closing submissions, Mr Galasso sought, in the event that the Court did not find the proposed plans acceptable, to be given the opportunity to address the concerns raised by the council, including the breach of the 20 m setback to the Pacific Highway and Ryde Road and the design quality of the building, with further plans. I propose to take up this offer principally because the matter of the demolition of the former 3M building has been found in the applicants favour ... 106 In coming to this conclusion, it does not follow that approval will be granted if amended plans are provided. DCP 2015 correctly highlights the importance of the Pymble Business Park through its controls in cl 14A.1 where the clause describes the planned future character for the Pymble Business Park ... 107 The site is specifically addressed in cl 14A.5 as a "landmark site at the corner of Ryde Road and Pacific Highway. This is a visually prominent site with the potential to serve as a memorable marker in this locality". Control 6 states: 6 The site is to have a landmark building that is unique and site responsive. The building design is to be visually prominent and distinctive in architectural form and identify the location of Pymble Business Park within the region. 108 In considering the controls in cl 14A, it must be understood that the architectural form will normally reflect its use. In this case, a development application is for a "hardware and building supplies" establishment and will have a different form to say "Office premises" but that does not mean that a "hardware and building supplies" establishment cannot be designed to address the requirements in cl 14A. 109 Based on the evidence, any new design should include: • compliance with the 20 m setback. • comprehensive landscaping of the 20 m setback, • details of signage that are relatively discrete, • the absence of outside storage areas that can be viewed from the public domain, and • an architectural design that provides interest and an attractive appearance from the public domain. 110 If the applicant is prepared to provide additional drawings, the future progress of the matter will be discussed when these findings are handed down. Alternatively, if the applicant does not wish to provide additional drawings; the appeal will be dismissed.
10. On 1 August 2016, the Court of Appeal handed down a decision which overturned a construction point upon which the Commissioner had relied in his July 2016 decision, in respect of the heritage issue: see Wingecarribee Shire Council v De Angelis ("De Angelis") [2016] NSWCA 189.
11. Bunnings then sought leave to reopen its Class 1 appeal, and leave was granted, in the Commissioner's "reopening decision", on 28 October 2016 ([2016] NSWLEC 1659).
12. In that judgment, the learned Commissioner described (at [19]) his earlier/first judgment as an "'Interim Judgment', ... in essence only interim findings on the application before the Court". He noted (again at [19]) that the cover sheet of that judgment described the July "decision" as "Directions for amended plans".
13. He also said (at [20] - emphasis mine): "... the interests of justice are best served by hearing from the parties on the Court of Appeal decision in De Angelis", and then made the following order (at [21]): (1) Leave to reopen the proceedings is granted, with respect to the application of clause 1.8A of the ... LEP ... following the Court of Appeal decision in ... De Angelis ...
14. During a hearing on 5 December 2016, the Commissioner granted Bunnings leave to rely on further amended plans, and indicated he would later provide reasons (T05.12.16, p26, LL18-20).
15. On 3 March 2017 (in [2017] NSWLEC 16), Pain J dismissed a Notice of Motion, filed by Bunnings on 20 February 2017, and heard on 24 February 2017, for the summary dismissal of a s 56A appeal Council had lodged on 10 February 2017, against the Commissioner's "amended plans" decision.
16. Pain J noted (at [3]) that the Commissioner had delivered an "interim findings judgment", had "resolved not to approve the DA and gave Bunnings the option of filing amended plans". Her Honour then said (at [19] - emphasis mine): The material finding of the Commissioner in the interim findings judgment was in [104] to the effect that he was not satisfied that the proposed development was acceptable in the form before the Court. That finding is not the subject of the s 56A appeal. I agree with Bunnings' submissions that the statements in par [110] of the interim findings judgment providing an option to Bunnings to file additional plans do not constitute a decision within the meaning of s 56A because the statements are not a finding which is final, operative or determinative in a practical sense of an issue falling for consideration. To the extent final might be understood to exclude interlocutory I do not intend that the word have that meaning.
17. Her Honour also noted (at [21]), as the Commissioner had (first decision at [106] - quoted in [22] above), that "the lodging of amended plans does not give rise to any particular outcome in the appeal".
18. On the basis of those "further amended plans", the Commissioner conducted a further merits hearing on 24-28 March 2017.
19. On 16 May 2017, the Commissioner published his "final decision", upholding Bunnings' appeal.
20. The learned Commissioner gave (at [3]-[20]) his reasons for having allowed amended plans - he was satisfied that the amendments would not render the proposal a "new" application. He then noted (at [22]): The contention relating to the design was not pressed by the council following the agreement by the experts in their joint report that the design was acceptable. I note the design was the sole reason for the interim findings and the amended plans.
21. He went on to deal with De Angelis, and to consider all the expert heritage evidence then before him. He said (at [69]-[79], under the heading "Findings" - emphasis mine): 69 The fundamental difference between the expert evidence is the very different levels of significance attributed to the former 3M building. This difference is central to the evidence on each of the specific areas addressed by Mr Brooks and Mr McDonald in their further evidence. In considering their further evidence I make the following comments. First, I did not understand there to be any dispute over the significance of the former 3M building. The site is identified as Item 1593 in Sch 5 Heritage items of LEP 2015 as "3M Building (former)" having Local Significance. The Statement of Significance is set out in the Inventory Sheet was accepted by both experts although Mr Brooks sought to add to the description of the significance of the heritage item with reference to the publication A Pictorial Guide to Identifying Australian Architecture, Styles and Terms from 1788 to the Present. While this reference supports the position of Mr Brooks, I am not satisfied that it adds, in any meaningful way, to the debate between the experts. At best, it provides additional support for Mr Brooks position but does not provide any new evidence on the significance of the former 3M building. 70 The second matter relates to the concern that the redevelopment is contrary to some aims in cl 2 of LEP 2015. While a reference to the aims of LEP 2015 is not an irrelevant consideration, there is no operative clause that requires that the aims must be taken into consideration of a development application. I do not see this as a means of diminishing the importance of those matters addressed in the aims but more specific and probably more effective requirements are available in cl 5.10(4). 71 Third, and in relation to the concern that the redevelopment is contrary to cl 5.10(1) of LEP 2015, I adopt similar comments I made in the previous paragraph in that there is no operative clause that requires that the objectives must be taken into consideration of a development application. Again, more specific and probably more effective requirements are available in cl 5.10(4). 72 Fourth, and in relation to the incentive provisions in cl 5.10(10), I note the provisions are not mandatory. They simply provide the opportunity to use "a heritage item or of the land on which such a building is erected, or for any purpose on an Aboriginal place of heritage significance" for a "purpose (that) would otherwise not be allowed by this Plan" subject to the matters in ss (a) to (e). There can be no obligation for a person that seeks the demolition of a heritage item to address the requirements of this sub clause. As Mr McDonald stated, "it is unreasonable to expect that the applicant should go through an exercise of exploring other adaptable uses for the former 3M building that do not serve the applicant's core business needs". 73 In response to the assertion of Mr Brooks that another use could be found for the building, the evidence of Mr Peter Leyshon is uncontested. He states that: • the Pymble/Gordon area; as an office location has at best, has been static since the early 1990s, in that there has been no new development of offices, • the results of a survey of the Pymble Business Park undertaken in January 2016 identified a vacancy rate of 23.6%, and • the current vacancy rate in the Pymble/Gordon area can reasonably be described as being "off the chart" as far as Sydney's major office markets currently are concerned. 74 Mr Leyshon states that the major problem confronting the Pymble Business Park is the substantial increase in competition that the area faces from both a change in the way businesses use office space and, more relevantly, from a substantial increase in competition from other suburban office centres/locations. In his view, the preconditions which gave rise to the demand for, and feasibility of, office development in Pymble have irrevocably changed. Consequently, the retention of the former 3M building for a commercial use runs the very real risk that it will continue to remain vacant, compounding the existing deterioration of the Pymble Business Park as a whole. 75 Also, the uncontested evidence of Mr Martin Hill and Mr Simon Hensley identifies that the former 3M building would require substantial refurbishment and upgrade in order to meet current day BCA standards, with the cost of the rectification works being in the order of $10.660 million excluding GST. 76 Fifth, and there can be no doubt that the assessment required by cl 5.10(4) is at the centre of the dispute. Mr Brooks and Mr McDonald hold totally different views on the heritage significance in their earlier evidence and their more recent evidence. Consistent with assessing heritage significance, Mr Brooks and Mr McDonald appropriately used the criteria in Assessing Heritage Significance (2001) from the NSW Heritage Office in their previous evidence; the conclusions were repeated in their most recent evidence. This assessment was undertaken in the interim findings (pars 26 to 81) after considering the evidence of Mr Brooks and Mr McDonald. The conclusion (at par 81) stated: 81. Pursuant to cl 5.10, I find that the proposed development has little if any, heritage significance and as such the demolition on the former 3M building can be supported. 77 I am not satisfied that Mr Brooks provided any new evidence in the recent joint report with Mr McDonald that would suggest that the findings in the interim judgment should be changed. In my view, the assessment undertaken in the interim findings at pars 26 to 81 remains valid. 78 Mr Hemmings also raises other matters in his submissions that require a response. He submits that weight should be given to the existence of the listing of the former 3M building in Sch 5 of LEP 2015 by the council. This submission must be rejected. Clause 5.10 (or any part of LEP 2015) contains no such consideration or requirement. Clause 5.10(2)(a)(i) provides the opportunity to demolish a heritage item subject to cl 5.10(4) that requires, before granting consent, the Court must consider the effect of the proposed development on the heritage significance of the heritage item. This assessment has been undertaken and found that the former 3M building has little if any, heritage significance. 79 Mr Hemmings also submits that it is not the role of Mr McDonald to "go behind" the listing of the former 3M building in Sch 5. This also must be rejected as Mr McDonald simply carried out the task required by cl 5.10(4) in assessing the heritage significance of the heritage item using the accepted criterion in Assessing Heritage Significance.
22. The learned Commissioner then dealt again with Tree 135, confirming (at [87]) his interim finding (at [91] of the first decision).
23. He concluded (at [88]) that there was "no reason why (sic) development consent should not be granted", and proceeded to make orders accordingly.
24. I turn now to set out the various legislative and other provisions relevant to this appeal, some of which have already been mentioned.

The Court Act

1. Section 17 of the Court Act relevantly provides: 17 Class 1 - environmental planning and protection appeals The Court has jurisdiction (referred to in this Act as "Class 1" of its jurisdiction) to hear and dispose of the following: ... (d) appeals, objections and applications under sections 75K, 75L, 75Q, 75W (5), 95A, 96, 96A, 97, 97AA, 98, 98A, 109K, 121ZK, 121ZM, 121ZS and 149F of the [EPA Act].
2. Section 38 provides: 38 Procedure (1) Proceedings in Class 1, 2 or 3 of the Court's jurisdiction shall be conducted with as little formality and technicality, and with as much expedition, as the requirements of this Act and of every other relevant enactment and as the proper consideration of the matters before the Court permit. (2) In proceedings in Class 1, 2 or 3 of the Court's jurisdiction, the Court is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate and as the proper consideration of the matters before the Court permits. (3) Subject to the rules, and without limiting the generality of subsection (2), the Court may, in relation to proceedings in Class 1, 2 or 3 of the Court's jurisdiction, obtain the assistance of any person having professional or other qualifications relevant to any issue arising for determination in the proceedings and may receive in evidence the certificate of any such person. (4) In proceedings in Class 1, 2 or 3 of the Court's jurisdiction, the Court may, in respect of a matter not dealt with by this Act or the rules, give directions as to the procedure to be followed at or in connection with the hearing. (5) In this section, a reference to the Court includes a reference to the Commissioner or Commissioners directed under section 36 to hear and dispose of proceedings.
3. Section 39 provides the Court with the power to hear appeals within Class 1 of its jurisdiction: 39 Powers of Court on appeals (1) In this section, appeal means an appeal, objection, reference or other matter which may be disposed of by the Court in proceedings in Class 1, 2 or 3 of its jurisdiction. (2) In addition to any other functions and discretions that the Court has apart from this subsection, the Court shall, for the purposes of hearing and disposing of an appeal, have all the functions and discretions which the person or body whose decision is the subject of the appeal had in respect of the matter the subject of the appeal. (3) An appeal in respect of such a decision shall be by way of rehearing, and fresh evidence or evidence in addition to, or in substitution for, the evidence given on the making of the decision may be given on the appeal. (4) In making its decision in respect of an appeal, the Court shall have regard to this or any other relevant Act, any instrument made under any such Act, the circumstances of the case and the public interest. (5) The decision of the Court upon an appeal shall, for the purposes of this or any other Act or instrument, be deemed, where appropriate, to be the final decision of the person or body whose decision is the subject of the appeal and shall be given effect to accordingly. ... (7) The functions of the Court under this section are in addition to and not in derogation from any other functions of the Court. ...
4. Section 56 provides: 56 Nature of decision of the Court Except as provided: (a) by Division 2, in relation to proceedings in Class 1, 2, 3, 4 or 8 of the Court's jurisdiction, or (b) by the Criminal Appeal Act 1912, in relation to proceedings in Class 5, 6 or 7 of the Court's jurisdiction, a decision of the Court shall be final and conclusive.
5. Section 56A relevantly provides: 56A Class 1, 2, 3 and 8 proceedings - appeals to the Court against decisions of Commissioners (1) A party to proceedings in Class 1, 2, 3 or 8 of the Court's jurisdiction may appeal to the Court against an order or a decision of the Court on a question of law, being an order or a decision made by a Commissioner or Commissioners. (2) On the hearing of an appeal under subsection (1), the Court shall: (a) remit the matter to the Commissioner or Commissioners for determination by the Commissioner or Commissioners in accordance with the decision of the Court, or (b) make such other order in relation to the appeal as seems fit. (3) Notwithstanding subsection (1), an appeal shall not lie to the Court under that subsection in respect of a question of law that has been referred to, and determined by, a Judge pursuant to section 36.
6. Section 97B of the Court Act is relevant to the respondent's Cross-Appeal: 97B Costs payable if amended development application filed (1) This section applies to proceedings if the Court, on an appeal by an applicant under section 97 allows the applicant to file an amended development application (other than to make a minor amendment). (2) In any proceedings to which this section applies, the Court must make an order for the payment by the applicant of those costs of the consent authority that are thrown away as a result of amending the development application. (3) The regulations may provide for circumstances in which subsection (2) does not apply. (4) This section has effect despite the provisions of any other Act or law.

The EPA Act

1. Section 83(4) of the EPA Act should be noted: 83 Date from which consent operates ... (4) If a determination is made by refusing consent or if an application is taken by section 82 to have been so determined, and the decision on the appeal made pursuant to section 97 in respect of that determination has the effect of granting consent, the decision is taken to be a consent granted under this Division and that consent is effective and operates from the date of that decision.

The LEP

1. The savings provision in the LEP states: 1.8A Savings provision relating to development applications If a development application has been made before the commencement of this Plan in relation to land to which this Plan applies and the application has not been finally determined before that commencement, the application must be determined as if this Plan had not commenced. ...
2. The objectives in cl 5.10(1) of the LEP include "to conserve the heritage significance of heritage items and heritage conservation areas, including associated fabric, settings and views".
3. Clause 5.10(2)(a)(i) provides that: (2) Requirement for consent Development consent is required for any of the following: (a) demolishing or moving any of the following or altering the exterior of any of the following (including, in the case of a building, making changes to its detail, fabric, finish or appearance): (i) a heritage item, …
4. Clause 5.10(4) provides that: The consent authority must, before granting consent under this clause in respect of a heritage item or heritage conservation area, consider the effect of the proposed development on the heritage significance of the item or area concerned. This subclause applies regardless of whether a heritage management document is prepared under subclause (5) or a heritage conservation management plan is submitted under subclause (6).
5. The term "heritage significance" is defined to mean "historical, scientific, cultural, social, archaeological, architectural, natural or aesthetic value".
6. Clause 5.10(10) contains incentive provisions: (10) Conservation incentives The consent authority may grant consent to development for any purpose of a building that is a heritage item or of the land on which such a building is erected, or for any purpose on an Aboriginal place of heritage significance, even though development for that purpose would otherwise not be allowed by this Plan, if the consent authority is satisfied that: (a) the conservation of the heritage item or Aboriginal place of heritage significance is facilitated by the granting of consent, and (b) the proposed development is in accordance with a heritage management document that has been approved by the consent authority, and (c) the consent to the proposed development would require that all necessary conservation work identified in the heritage management document is carried out, and (d) the proposed development would not adversely affect the heritage significance of the heritage item, including its setting, or the heritage significance of the Aboriginal place of heritage significance, and (e) the proposed development would not have any significant adverse effect on the amenity of the surrounding area.

Section 56A Principles

1. I summarized the well settled principles for the determination of s 56A appeals, in my judgment in Botany Bay City Council v Botany Development Pty Ltd (No 2) [2015] NSWLEC 55, in these terms (at [5]): (a) the appeal is limited to a question of law, and not concerned with errors of fact; (b) the error of law must be identified by the Appellant, and shown to be of a sufficiently material character as to vitiate the entirety of the Commissioner's decision; (c) the Commissioner's reasons must be adequate, but should not be examined with a "fine tooth comb" in an endeavour to discover error; and (d) the Court is not to take an overly critical or "pernickety", legalistic approach in examining the Commissioner's decision, as if it were written by a lawyer.
2. Those principles were re-stated more fully by Pepper J, in Tanious v Georges River Council ("Tanious") [2016] NSWLEC 142, in these terms (at [10], citations omitted): (a) first, the appeal is only concerned with errors or questions of law and not questions of fact ...; (b) second, an overly critical examination of the Commissioner's decision for relevant error should not be employed ... The Commissioner's reasons for the decision must therefore be read as a whole and considered reasonably. A "verbal slip or infelicity of expression does not necessarily warrant drawing and (sic) inference of an error of law" ...; (c) third, the Commissioner must give adequate reasons for her decision. This means that she must refer to evidence that is important or critical to the determination of the principal or central issues in the case ... This does not mean, however, that every argument advanced by a party in support of these issues must be considered by the Commissioner or reasons given for accepting or rejecting it ...; (d) fourth, and as corollary to the principle above, if the decision of the Commissioner reveals an error on a question of law, the decision is only vitiated if the error is material to the decision made ...; and (e) fifth, an error will not be material to the decision if the matter complained of on appeal was a matter that was not the subject of submissions made to the Commissioner below in a way that called for a reasoned consideration of that matter ... A party is bound by the way it conducted its case at the hearing …

Consideration

1. In the competing submissions there was much discussion about the fairly unique nature of this Court.
2. As Spigelman CJ said, in Port Stephens Council v Jeffrey Sansom (2007) 156 LGERA 125; [2007] NSWCA 299, this Court has imposed upon it by statute a particular "combination of functions ... It is, simultaneously, both a court of law and an administrative tribunal. The determination of whether or not a particular development is prohibited, particularly when decided as a preliminary question, bears the character of ordinary litigation in a court. The determination of a development application by way of a process of merits review is an administrative tribunal function ...".
3. His Honour continued (at [52]): ... Although a judicial officer exercising a merits review jurisdiction stands in the shoes of the primary decision-maker, s/he cannot behave in the same ways as an administrator. A court is required to manifest a high level of impartiality, independence and consistency in its decision-making.
4. He noted (in [66]) that the Court Act provides, inter alia: That, in appeals to the Court in Class 1, 2 or 3, that the Court has all of the functions and discretions of the person from whose decision the appeal is brought and that such an appeal is by way of rehearing on fresh evidence, if permitted, and any decision is deemed to be the final decision of the person from whose decision the appeal has been brought (s39).
5. The Chief Justice added (at [73]): One of the critical differences between ordinary civil litigation and planning appeals is the absence of a reciprocal relationship between the interests of the parties. They are not, or should not be, adversaries in the sense that can be said of the usual kind of civil litigation in courts.
6. I gladly adopt the Chief Justice's remarks, and, against that background, there are four questions to be resolved in deciding the present appeal: 1. Was the Commissioner's approach to dealing with this case based on an erroneous understanding or application of what he had the power to do in taking what is known as an "amber light" approach to this Class 1 appeal? 2. Did the Commissioner deal appropriately with heritage questions, in terms of cl 5.10 of the LEP? 3. Was the Commissioner's approach to the issue of Tree 135 legally "reasonable"? 4. The cross-appeal?
7. I shall now turn to consider those four questions, in that order.

The "Amber Light" approach

1. I do not accept that the Commissioner's first decision was effectively to refuse the DA. It is very clear from his judgments that, having some residual concerns about the appeal, he intended and/or purported to adopt the so-called "amber light" approach.
2. That approach has no statutory basis, but it is a "practice", if not a "policy" established and circumscribed by a series of decisions of the Court. Applied appropriately it does not offend the principle of finality, nor any principles underlying the Civil Procedure Act 2005 regarding the "just quick and cheap" disposition of proceedings.
3. It was pioneered by Moore J when His Honour was a commissioner (and later Senior Commissioner) of the Court, but it has been considered and endorsed by several judges of the Court, as well as Moore J, including but not only the Chief Judge and myself.
4. I surveyed in detail the relevant authorities in Luxe Manly Pty Limited v Northern Beaches Council ("Luxe") [2016] NSWLEC 156.
5. The question in the s 56A appeal in Luxe was the correctness of a commissioner's exercise of her discretion to not adopt such an approach. The respondent Council in that case rejected the description of the approach as a "policy". I think it is, indeed, a court "policy", but I am content to use the word "approach".
6. The approach involves (Luxe at [16]) delivery of an interim judgment, which falls short of outright refusal of the appeal, but indicates elements of concern in the application which could be amended, such that the appeal could be upheld and an approval granted.
7. As the Chief Judge said in Marinkovic v Rockdale City Council ("Marinkovic") (2007) 151 LGERA 385; [2007] NSWLEC 71 (at [22]-[26] - emphasis mine): 22 There should be a capacity for an applicant in class 1 proceedings before the Court to amend its application to respond to evidence, including evidence of a court appointed expert, and to address concerns of the court that is hearing the appeal. A respondent council should expect that an applicant might need to respond in this way. That is to say, such amendments should be seen to be part of the usual process of conducting a class 1 appeal in this Court. The mere making of an amendment is not by itself a circumstance that always makes it fair and reasonable to make an order for costs. 23 Of course, there must be some limit placed upon this capacity to respond to evidence and to the Court's concerns by means of an amendment. ... ... 26 ... there must be some capacity for an applicant to respond to the evidence and the concerns of the Court. This should be seen as part of the usual conduct of proceedings. Where making that amendment does lead to costs thrown away, then there may be some justification for making an order ...
8. In adopting the amber light approach, the Court "must have regard to, among other things, the public interest": per Biscoe J in Maxnox Pty Limited v Hurstville City Council ("Maxnox") (2006) 145 LGERA 373; [2006] NSWLEC 146, at [57].
9. In several cases since Marinkovic, Moore J (as Senior Commissioner) "developed" the approach, and provided guidance to his colleagues as to its use, in an effort to achieve "the best community outcome" (Maxnox at [57]). His Honour made the following comments (in those of his cases cited by me in Luxe): 1. In Ali v Liverpool City Council ("Ali") [2009] NSWLEC 1327, at [120]-[121]: 120 ... This ["amber light"] approach says that, if a proposal is not appropriate to be given approval in the form being considered but, with minor and identifiable amendments consistent with the application before the Court, it would be capable of approval, the Court should make a determination: • setting out the changes that are required to render the proposal acceptable; • requiring the applicant to make those changes, whether by preparation of amended plans or by Court imposed conditions settled between the parties; and • when such modifications are incorporated (thus rendering the proposal acceptable), approval should be given to the amended proposal. 121 In this case, a number of modifications emerging from the objectors' evidence and the concurrent evidence given by the town planners led to a number of propositions being put to Mr Ayling for the applicant to consider. These propositions were not put on any basis to indicate that I had already formed any conclusion concerning the overall merits of the proposal but were merely put in response to comparatively minor matters raised where these matters appeared, to me, both to have merit warranting consideration and being of comparatively easy scope to address. 1. In The Benevolent Society v Waverley Council ("Benevolent") [2010] NSWLEC 1082 , at [66]-[67]: 66 It has been the consistent approach of the Court, over recent years in development appeal proceedings, to assess proposals on what has been described as an "amber light" basis. This approach means that the Court not only considers the question of whether the proposal should be approved in the form that is before the Court but also asking whether the proposal is capable of approval, with specified modifications imposed by the Court, within the scope of the present proceedings. It is in that fashion that I approach the present appeal. 67 Indeed, consistent with this approach, during the course of the expert evidence in all three disciplines - planning, heritage and arboriculture - that I tested a number of "what if?" propositions on those experts. Such propositions were put not on the basis that I had reached even any tentative conclusions concerning any aspect of the proposal but in order to explore whether there were any modifications to the proposal that would cause the council to indicate that an acceptable design had been achieved if such modifications were to be adopted by the Society. 1. In Riordans Consulting Surveyors Pty Limited v Lismore City Council [2010] NSWLEC 1333, at [27]-[31]: 27 I have approached my consideration of the issues in these proceedings by adopting the "amber light approach" now taken in merit proceedings in the Court. 28 This approach has me first ask myself this initial question - "On the merits, is the application capable of being approved as applied for?" If this question is answered in the affirmative, I must then proceed to approve the proposal. 29 If I were to conclude that it is not capable of being approved as applied for, I do not automatically refuse the proposal. In the alternative to refusal, I then proceed to address a second question - "Is the proposal capable of being given development consent within the scope of the present application but with amendments or changes that are defined by me with sufficient precision as to be incorporated in either plans or in conditions of consent?" 30 If this second question is answered in the affirmative, I should then proceed to specify the amendments or changes; require their incorporation in the proposal; and approve the proposal as so modified. 31 However, if this second question is answered in the negative, I am obliged to proceed to reject the proposal and dismiss the appeal. (See also Champions Quarry Pty Limited v Lismore City Council [2011] NSWLEC 1124, at [148]-[151])
10. Biscoe J noted, in 2010 in Stanton Dahl Architects v Penrith City Council [2010] NSWLEC 156, that the approach was by then being "consistently adopted", and that it was "facilitative", providing guidance to the parties on a way forward.
11. Pain J said in Riverstone Parade Pty Limited v Blacktown City Council ("Riverstone") [2015] NSWLEC 137, at [38]: ... A commissioner not giving an "amber light" to a development application before him or her does not give rise to a question of law. Whether such an approach is adopted is a matter of merit which must be weighed up by a commissioner in the exercise of his or her function as a consent authority under the Court Act.
12. In 2016, in Luxe, I summarised the then situation with the approach in these terms (at [33]-[38], and [71]): 33 Sometimes the bench takes the initiative, and sometimes a party requests the opportunity, usually as a backup position, secondary to its primary claim that its proposal should be accepted. 34 ... the question of its appropriateness is a "discretionary exercise", for which there is "absolutely no mandate, nor any statutory basis". 35 The bench must be not persuaded to approve the application in its current form, but the suggested amendments must not significantly alter that proposal - they must be "minor and identifiable amendments, consistent with the application before the court; ... they must have merit warranting consideration and being of comparatively easy scope to address" (Ali, at [120]). 36 They may, but not necessarily should, render the proposal before the Court acceptable to the respondent consent authority (Benevolent, at [67], Ali, at [286]). 37 The present applicant claims that the Court has established the approach as its "clear policy", but the respondent does not concede it that status. It was, however, an approach taken with some consistency in the 2000s, and the Chief Judge was happy to say nine years ago that its consideration had evolved in the Court's management of Class 1, and may, in appropriate cases, be seen as "part of the usual conduct of those proceedings" (Marinkovic, at [26]). 38 As Pain J says, it is a merit matter (Riverstone, at [38]). Of itself, declining to do it is, therefore, not an error of law, but doing it on the Court's own motion could involve a denial of procedural fairness and constitute an error of law. ... 71 In applying the "amber light", the Court is exercising a discretion to grant implicit applications for adjournment and amendment. The potential amendments must be defined with "sufficient precision".
13. At around the same time as I decided Luxe, Moore J, in ABAX Contracting Pty Limited v The Hills Shire Council [2016] NSWLEC 105, expressed (at [73]-[74]), in the context of the case then before him, his concern "that exploration of such an approach might not be appropriate as such a change could not be accommodated as an amber light outcome from the present proceedings", and determined that the changes there proposed as "necessary for such a development approach to the site were so substantial that a fresh development application would be required".
14. Clearly the approach is not universally appropriate, and each case must be considered on its own facts and merits.
15. In the present matter I can find no error of law in the learned Commissioner's approach to the disposition of the Class 1 appeal by way of an "amber light" approach.
16. In the first decision, he gave detailed explanations of his concerns with the DA before him, and provided the applicant with the opportunity to amend, in order to address those concerns.
17. That first decision was clearly "interim findings", but the appellant has taken, erroneously, a "fine tooth comb" approach to it (see 51 above).
18. The Commissioner clearly indicated what was required so as not to infringe the requirement that the Court not then be asked to approve a significantly different development (see Maxnox, at [58]-[59]).
19. The amendments made in response to the adoption of the "amber light" approach were (as submitted by Bunnings, at par 40, and consistent with par [109] of the first decision - see [22] above) "constrained to the following discrete alterations: (1) compliance with the 20m setback, (2) comprehensive landscaping of the 20m setback. (3) details of signage that are relatively discrete, (4) the absence of outside storage areas that can be viewed from the public domain, and (5) an architectural design that provides interest and an attractive appearance from the public domain."
20. The first decision, said by the Council to infect all later judgments, cannot fairly be described as either a (constructive) "refusal" or as "advice". Nor can it be said that the later decisions suffer from any such "infection". I also find unhelpful the Council's attempt to compare the "amber light" approach with cases on "liberty to apply".
21. I, therefore, reject the appeal brought on the "amber light" ground, and turn now to the appeal arguments concerning heritage.

The heritage issue

1. Clause 5.10(4) of the LEP ([48] above) required the Commissioner, in terms, to consider the effect of the proposal by Bunnings on the "heritage significance" (defined in [49] above) of the former 3M Building, which had been listed as a heritage item in Sch 5 in the LEP.
2. Bunnings' proposal involved complete demolition of that building, and action which would remove all heritage significance from that heritage item. However, cl 5.10(4) required a consideration by the Commissioner of what the heritage significance of the item actually was, a matter, as the respondent correctly submits (par 53), not determined, necessarily or conclusively, merely by its listing as a heritage item, albeit following a "justification" process (Council subs par 82).
3. Both parties appear to accept that, in carrying out the requirement of cl 5.10(4), a consideration of the objectives listed in cl 5.10(1) is required - the Council says (subs par 77) that that is the starting point, but Bunnings say (subs par 52) that it is not necessarily the starting point, but an important consideration.
4. In his final decision (at [71]), the learned Commissioner noted that: … there is no operative clause that requires that the objectives must be taken into consideration of a development application. Again, more specific and probably more effective requirements are available in cl 5.10(4).
5. The Commissioner set out in his first decision the competing assessments provided by the parties' respective heritage experts, and, based on his consideration of that evidence, arrived at his own assessment of "heritage significance", using the same criteria as employed by the experts. He concluded (at [81]) that the Bunnings proposal had "little if any, heritage significance, and as such the demolition of the former 3M building can be supported".
6. Having conducted his "final" hearing, he found (at [77]) no new evidence which would cause him to change his "interim" view of its heritage significance.
7. In terms of cl 5.10(4), it is clear that the Commissioner fully understood the issues and his function. (See Southon & Ors v Gordon Plath on behalf of the Department of Environment and Climate Change (2010) 181 LGERA 352; [2010] NSWCCA 292, at [79].) He considered the effect of the proposal on the heritage item, and, in doing so, accorded a measure of heritage significance to that item, albeit at the lowest end of the "significance" spectrum, a question and finding of fact. He then weighed that finding against other merits of the proposal in coming to his conclusion to allow the appeal with conditions.
8. On the issue of the weight that, the appellant submits, should be given to the former 3M building, due to its listing in Sch 5 of the LEP, I agree with the Commissioner's final decision (at [78]): Mr Hemmings ... submits that weight should be given to the existence of the listing of the former 3M building in Sch 5 of LEP 2015 by the council. This submission must be rejected. Clause 5.10 (or any part of LEP 2015) contains no such consideration or requirement. Clause 5.10(2)(a)(i) provides the opportunity to demolish a heritage item subject to cl 5.10(4) that requires, before granting consent, the Court must consider the effect of the proposed development on the heritage significance of the heritage item. This assessment has been undertaken and found that the former 3M building has little if any, heritage significance.
9. That factual finding is not amenable to s 56A.
10. The appellant Council also submits that, due to the existence of cl 5.10(10) ([50] above), permitting a wider range of uses to be explored where a heritage item is conserved, the Commissioner should have considered whether any alternatives to the commercial development proposed by Bunnings, involving maintaining the former 3M building, were possible.
11. Since cl 5.10(10) allows for a variety of wider uses, Council submits that the Commissioner erred in taking into consideration the financial burden on the owner associated with repair or reconstruction of a heritage item as opposed to demolition. Council, however, accepts that any financial burden on an owner is at least a "permissive consideration".
12. Clause 5.10(10) provides for "Conservation incentives". It does not widen the range of mandatory considerations, as the appellant suggests.
13. I agree with the respondent that the feasibility of upgrading the building and finding an office tenant is a relevant financial burden on the land owner. Evidence of those expenses was actually before the Commissioner (Appeal Book, tab 15, pp502-504, and tab 16, p650).
14. The Commissioner weighed that evidence - again a matter of fact, not amenable to s 56A - and it was relevant to his decision. (See Helou v Strathfield Municipal Council (2006) 144 LGERA 322; [2006] NSWLEC 66, at [46].)
15. I find no error of law in the Commissioner's consideration of the heritage issues.
16. I turn, therefore, to the major landscape issue, the threat to Tree 135.

Tree 135

1. The appellant claims that the Commissioner failed to meet the requirement of legal reasonableness in the decision he made, on the basis of expert evidence, to allow the removal of Tree 135 in the implementing of his consent to Bunnings' proposal.
2. These, again, were factual or merit considerations (see AB tab 37), and the appellant has not demonstrated any error or law on the Commissioner's part. These are questions of balancing the various relevant considerations.
3. The respondent relevantly quoted (par 68) a little of what Clarke JA said in Randwick Municipal Council v Manousaki (1988) 66 LGRA 330, as part of His Honour's excellent analysis at 333-334: … On the other hand perverse or unreasonable findings of fact do not constitute errors of law … even if the reasoning whereby a court or tribunal reached its conclusion of fact were demonstrably unsound this would not amount to an error of law.
4. The challenge on this ground also fails.
5. I turn then, lastly, to the fourth issue, the cross-appeal.

The Cross-Appeal

1. I again note that, on 1st August 2017, Bunnings filed with the Court a Cross-Appeal essentially in these terms (see [11]-[12] above): If the Court ... finds that the Commissioner erred at law in granting leave to rely upon amended plans, the Cross-Claimant cross-appeals from that part of the order ... made on 5 December 2016 (Amended Plans Decision) which requires the Cross-Claimant to pay costs pursuant to s97B of the [EPA Act] ...
2. I have not so found, so the issue raised in the cross-appeal requires no action.
3. The cross-appeal may and will be dismissed, with no order as to costs.

Costs

1. In s 56A appeals costs follow the event (Tanious). The appellant will, therefore, be ordered to pay the respondent's costs of the appeal.

Orders

1. The Court orders that: 1. The Council's appeal under s 56A is dismissed. 2. The Appellant is to pay the Respondent's costs of the appeal, on a party-party basis, as agreed or assessed. 3. The Respondent's cross-appeal is dismissed, with no order as to costs. 4. Exhibit R1, the Appeal Books, and the bundles of authorities may be returned.

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