Lahoud v Willoughby City Council

Solicitors: Woolf & Associates (Applicant) Lindsay Taylor Lawyers (First Respondent) Mills Oakley (Second Respondent) File Number(s): 292505 of 2021 Publication restriction: No

Introduction

1. On 29 June 2021, the Willoughby Local Planning Panel (the Planning Panel) on behalf of the Willoughby City Council (the Council) considered a development application made by Helm Pty Ltd (the Company) seeking consent for "Adaptive conversion of the existing building into shop top housing including additional level" at 131 Sailors Bay Road, Northbridge (the site).
2. The Planning Panel decided that it was appropriate to grant development consent to the Company's proposed development subject to conditions. The Planning Panel gave reasons for its decision in a document entitled "Determination and Statement of Reasons" dated 29 June 2021. It is to be noted that one of the conditions required the deletion of the northern portion of the uppermost level of the Company's proposed development.
3. The Council issued a "Notice of Determination of a Development Application" (including conditions) to give effect to the Planning Panel's decision (Exhibit A, Tab 13, folios 281 to 315). The document is undated but is described as operating from the date of the Planning Panel's decision (29 June 2021).
4. On 14 October 2021, Mr Victor Lahoud (the Applicant) commenced Class 4 judicial review proceedings challenging the granting of development consent to the Company. The Applicant has an interest in the neighbouring land to the east of the site (at 135‑145 Sailors Bay Road). The Council became the First Respondent to the proceedings and the Company became the Second Respondent. The Council has filed a submitting appearance except as to costs.
5. On 4 March 2022, Pepper J granted the Applicant leave to file and rely on a Further Amended Summons. The Further Amended Summons was filed on 10 March 2022. It contends that the Planning Panel's decision is invalid on six grounds ‑ all alleging jurisdictional error in the Planning Panel's decision‑making. It is to be noted that Grounds 5 and 6 are not pleaded until the Applicant's Further Amended Summons.

The joinder application

1. On 8 September 2022, a Notice of Motion was filed on behalf of the Applicant seeking to join in the Planning Panel as a respondent to the proceedings. The Applicant's purpose in seeking joinder of the Planning Panel was to be able to seek to serve interrogatories on that panel concerning, at least, the extent to which that panel had been aware of, and had to give consideration to, the potential for contamination to exist on the site.
2. That application was heard by me on 4 October 2022 and, on 13 October 2022, I dismissed the application (Lahoud v Willoughby City Council [2022] NSWLEC 125).
3. On 17 October 2022, the Applicant applied to the Court of Appeal for leave to appeal against my refusal to join the Planning Panel as a respondent to the proceedings. That application was heard on 19 October 2022. The application for leave to appeal was refused on 21 October 2022 (Lahoud v Willoughby City Council [2022] NSWCA 214).
4. As a consequence, as later discussed in the context of Grounds 5 and 6, the only potentially relevant primary evidence on contamination matters pressed on behalf of the Applicant is the limited material in the Council's Assessment Report and the affidavit and oral evidence of the Applicant on this issue.

Representation

1. The Applicant was represented by Mr T Robertson SC and Mr D Robertson, barristers and the Company by Mr A Galasso SC and Mr H Grace, barristers. Although the Council played an active role in the preliminary hearings concerning the application that the Planning Panel be joined as a respondent to the proceedings, the Council filed a submitting appearance for the purposes of the substantive hearing and took no part in it.

The hearing and subsequent written submissions

1. The substantive hearing was conducted over four days between 1 and 4 November 2022.
2. As later described, two decisions of the Court of Appeal were delivered during the period of my preparation of this reserved judgment - those two decisions necessitating the provision of opportunities to the parties to provide written submissions as to what role the matters determined by the Court of Appeal in those two cases might play in my consideration of the matters raised in these proceedings. Two opportunities for written submissions were provided, the latter of them resulting in final written submissions being received by me in late June 2023.

The evidence

1. The documentary evidence for the Applicant was: • Exhibit A - Evidence Book Vol 1(to extent of documents not rejected) • Exhibit B - Evidence Book Vol 2 (to extent of documents not rejected) • Exhibit C - Expert Report of Mr Barry 31 March 2022 • Exhibit D - Guidelines SEPP 55 - Remediation of Land • Exhibit E - Evidence Book Vol 3 (excluding tabs 44 to 48) • Exhibit F - E-mails between Mr Lahoud and Mr Robertson - September 2021 • Exhibit G - E-mails between Mr Lahoud and Mr Robertson - October 2021 • Exhibit H - Copy of Willoughby Planning Scheme Ordinance • Exhibit J - Copy of relevant maps relating to Willoughby Planning Scheme Ordinance • Exhibit K - Surveyors Joint Expert Report
2. The documentary evidence for the Company was: • Exhibit 1 - Mr Robertson's Memorandum of Advice 12 October 2021 page 2 • Exhibit 2 - Copy of Notice to Produce and Application Form for Development Approval • Exhibit 3 - Macquarie Dictionary definition of "service station" • Exhibit 4 - USB stick containing electronic version of Evidence Book Tab 14 (MO-3547323 password)
3. Affidavit evidence was provided for the Applicant, by: 1. two affidavits of the applicant himself, these being dated 20 October 2022 and 18 February 2022. The applicant gave oral evidence on 2 November 22 concerning matters relating to the commencement of the proceedings and matters relating to contamination of the site as discussed in his affidavit of 18 February 2022; 2. an affidavit from Mr Gerrard Barry, an engineer, concerning the extent of excavation that would be required on the site for the purposes of implementing the Company's proposed development; and 3. Mr Stuart de Nell, a surveyor who provided an affidavit concerning gross floor area (GFA) calculations he had made arising from the plans for the Company's proposed development. Mr de Nell also provided an affidavit in reply to that of Mr Walton.
4. Expert reports were provided for the Company by: 1. Mr John Walton, a surveyor who addressed the question of the Company's GFA calculations in an affidavit; and 2. Mr Brendan Page, an environmental consultant engaged by the Company. Mr Page was required for cross-examination.
5. The surveyors produced a joint expert report in the conventional form and were required to give concurrent oral evidence.

A general observation on assessing planning decisions

1. Before turning to any matters of detail requiring consideration in these proceedings, it is appropriate to set out how decision-making by bodies such as the Planning Panel is to be approached. Two passages from Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 (at 272) are appropriate to be set out. In the first, the plurality (Brennan CJ and Toohey, McHugh and Gummow JJ) referred with approval to what the Full Court of the Federal Court had said in Collector of Customs v Pozzolanic (1993) 43 FCR 280 at 287 - this being: "It was said that a court should not be 'concerned with the looseness in the language…nor with unhappy phrasing' of the reasons of an administrative decision-maker. The Court continued: 'The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error.'
2. Having set out that extract, the plurality then continued: These propositions are well settled. They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed. In the present context, any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision."
3. in the same decision, Kirby J said, at 291 (in a separate but concurring judgment): "The reasons under challenge must be read as a whole. They must be considered fairly. It is erroneous to adopt a narrow approach, combing through the words of the decision-maker with a fine appellate tooth-comb, against the prospect that a verbal slip will be found warranting the inference of an error of law."
4. The approach to be taken in this Court in assessments of primary planning decision-makers (whether bodies such as the Planning Panel, councils, council officers making decisions under delegated authority or, indeed, the Commissioners of this Court) when have such decisions assessed in the fashion discussed above by the High Court - that is not raked through with a fine toothed comb seeking legal error in what might, in reality, be infelicitous or loose use of language (Brimbella Pty Ltd v Mosman Municipal Council (1985) 79 LGERA 367).
5. It is with this general guidance as to how the Planning Panel's decision-making process and reasoning should be considered, I will later turn to address each of the specific grounds advanced on behalf of the Applicant.

Introduction

1. The preliminary point is raised on behalf the Company that the proceedings, being commenced by a Summons filed on 14 October 2021, were commenced after the expiry of the statutory period set by the Environmental Planning and Assessment Act 1979 (the EPA Act) within which proceedings challenging a development consent were required to be commenced for such proceedings to be commenced validly. The issue arises as a consequence of s 4.59 of the EPA Act, a provision in the following terms: 4.59 Validity of development consents and complying development certificates If public notice of the granting of a consent or a complying development certificate is given in accordance with the regulations by a consent authority or a certifier, the validity of the consent or certificate cannot be questioned in any legal proceedings except those commenced in the Court by any person at any time before the expiration of 3 months from the date on which public notice was so given.
2. The then applying regulation, Environmental Planning and Assessment Regulation 2000, provided relevantly in cl 124: 124 Validity of development consents For the purposes of section 4.59 of the Act, a notice relating to the granting of a development consent must be published on the consent authority's website and must describe the land and the development the subject of the development consent.
3. The decision of the Planning Panel was made on 29 June 2021. As a consequence, the first issue requiring to be addressed is "when was the notice required by s 4.59 of the EPA Act given in a fashion that would cause the three‑month exclusionary period set by this privative clause, commenced to run?"
4. The second issue requiring consideration (even if only on a contingent basis) is whether, if the three‑month exclusionary period provided for by s 4.59 expired before 15 October 2021, is the statutory provision effective in barring commencement of judicial review proceedings in circumstances where one or more complaints (as is here the position) are made that the decision of the consent authority (here the Planning Panel) was made in circumstances infected by jurisdictional error?
5. Various jurisdictional errors are proposed on behalf of the Applicant where, on the Applicant's case, the Planning Panel purported to exercise the decision‑making power vested in it concerning the Company's development application (DA) when a number of mandatory threshold prerequisites to the exercise of that decision‑making power had not been complied with by the Planning Panel.
6. For the purposes of considering this second basis of complaint raised by the Company and the Applicant's response to it, it will be necessary to consider relevant provisions of the Land and Environment Court Act 1979 (the Court Act) and how, within the relevant contemporary legal landscape, the powers of this Court are to be understood with respect to the exercise of judicial review functions concerning development consents in the limited circumstances where the complaints concerning the exercise of the power to grant development consent are said to be infected by one or more jurisdictional deficiencies. In this context, the terms of ss 20(2) and 71 of the Court Act are relevant. These provisions are in the following terms: 20 Class 4 - environmental planning and protection, development contract and strata renewal plan civil enforcement (1) The Court has jurisdiction (referred to in this Act as "Class 4" of its jurisdiction) to hear and dispose of the following - … (e) proceedings referred to in subsection (2). (2) The Court has the same civil jurisdiction as the Supreme Court would, but for section 71, have to hear and dispose of the following proceedings - (a) to enforce any right, obligation or duty conferred or imposed by a planning or environmental law, a development contract or a strata renewal plan, (b) to review, or command, the exercise of a function conferred or imposed by a planning or environmental law, a development contract or a strata renewal plan, (c) to make declarations of right in relation to any such right, obligation or duty or the exercise of any such function, (d) whether or not as provided by section 68 of the Supreme Court Act 1970 - to award damages for a breach of a development contract. 71 Proceedings in Supreme Court (1) Subject to section 58, proceedings of the kind referred to in section 20(1)(e) may not be commenced or entertained in the Supreme Court. (2) The jurisdiction conferred on the Court in respect of proceedings referred to in section 20(1)(e) is not limited by any provision of the Civil Procedure Act 2005 or the uniform rules under that Act.

The publications on the Council's website

1. Before turning to set out the competing submissions concerning when the time period specified by s 4.59 commenced to run (to what effect, requiring separate and subsequent consideration ‑ if only on a contingent basis), it is appropriate to set out three steps taken by the Council to provide information on its website concerning the outcome of, and the reasons for, the decision of the Planning Panel of 29 June 2021.
2. Information was uploaded to the Council's website on three occasions on differing dates.
3. The first tranche of information was uploaded to the Council's website on 30 June 2021. It was uploaded to a webpage entitled "WLPP meeting ‑ 29 June 2021 ‑ Determination and Statements" (Exhibit B, Tab 53, folios 1421 to 1424).
4. The second uploading of information concerning the Planning Panel's decision took place on 1 July 2021, when material was uploaded to a webpage entitled DA Tracker. A screenshot of the content of this page and its URL location are also in evidence (Exhibit E, folio 1415).
5. The final instance of uploading to the Council's website of material concerning the Planning Panel's decision of 29 June 2021 took place through an element of the Council's website entitled "Received & Determined Development Applications". This element of the Council's web information provision is updated at fortnightly intervals and sets out, in brief summary form, information concerning new DAs received by the Council during the previous period, together with information concerning DAs which were determined during that period. The relevant upload to this portion of the Council's website concerning the Planning Panel's decision on 29 June 2021 occurred on 15 July 2021. A screenshot (comprising three A4‑printed pages) of the material uploaded to this portion of the Council's website on 15 July 2021 is in evidence (Exhibit A, Tab 19, folios 362 to 364).
6. After setting out material concerning fresh DAs received during the period between 26 June and 9 July 2021, the following heading appears before the list continues to set out matters relating to DAs which were determined during that period. This heading is in the following terms: Pursuant to s. 4.59 of the Environmental Planning and Assessment Act 1979 and the Regulations, Council notifies the granting of the following development consents and/or complying development certificates which can be viewed on Council's Application Tracking System [URL omitted].
7. The fourth item listed below this heading is that which deals with the development consent granted to the Company ‑ being the development consent for the site which is the subject of these judicial review proceedings brought by the Applicant. This item on the "Received & Determined Development Applications" page published on 15 July 2021 was in the following terms: DA‑2020/238 131 Sailors Bay Road NORTHBRIDGE Adaptive conversion of the existing building into shop top housing including additional level.
8. At this point, it is also appropriate to note that the Company's DA form, as lodged with the Council, to commence the process, which led to the Planning Panel's approval on 29 June 2021, contained, under the heading "Description of Proposal" on its first page, the following description of the Company's proposed development: Adaptive reuse of the existing isolated building via its conversion into shop top housing. The proposal will retain the majority of the existing structure (including parking levels), with extensions north and south, plus the addition of a partial fifth level, resulting in a ground floor business premises, 14 apartments and 18 car spaces.
9. The final relevant element needing to be reproduced before turning to consider the matters in contention between the parties as to whether or not these proceedings were commenced within the time period specified by s 4.59 of the EPA Act is to set out the requirements contained in cl 124 of the Environmental Planning and Assessment Regulation 2000 (the 2000 Regulation) (this being the relevant provision applicable to any notice pursuant to s 4.59 triggering the commencement of running of the time period contained in that provision).
10. In this context, it is to be noted that, although the 2000 Regulation has subsequently been replaced by the Environmental Planning and Assessment Regulation 2021 (the 2021 Regulation), the 2021 Regulation did not come into effect until after any date relevant to the provision of material on the Council's website concerning the decision of the Planning Panel made on 29 June 2021. Clause 124 of the 2000 Regulation, at the relevant dates, was in the following terms: 124 Validity of development consents For the purposes of section 4.59 of the Act, a notice relating to the granting of a development consent must be published on the consent authority's website and must describe the land and the development the subject of the development consent.

The submissions on publication

1. It is not necessary to set out, in any detail, the submissions advanced by the active parties as to how compliance with the required period for publication was (or was not), satisfied. It is sufficient to note that the written and oral submissions from Mr Galasso on this point were that compliance with the requirement to publish the decision had been satisfied, on a date more than three months prior to the date when the proceedings were commenced by the Applicant.
2. The Company proposed that, as a matter of substance, both (but at least one) of the notifications on the Council's website published on 30 June 2021 and 1 July 2021 constituted publication in the fashion required by the Regulation. As a consequence, the Applicant's proceedings having commenced more than three months after both of these dates and thus were out of time.
3. Understandably, contrary to this position, Mr Robertson's written and oral submissions proposed that the date of publication was the notification on 15 July 2021 on the Council's Received & Determined Development Applications page on its website. On this basis, it was submitted for the Applicant that the proceedings were commenced in time.

Introduction

1. There are two separate reasons why I am satisfied that these proceedings have been commenced within time. The second of those reasons is adopted on a contingent basis against the event that I am incorrect in concluding, as my primary reason, that the period within which the privative clause operated concluded on 15 October 2021. I now turn to set out my reasoning for these two conclusions.

The s 4.59 notice was given on 15 July 2021

1. I have earlier set out the three separate occasions upon which the Council published information concerning the decision of the Planning Panel to approve the Company's development and, as a consequence, the Council's issuing of its determination formally granting development consent to the Company.
2. Although the position advanced by Mr Galasso SC for the Company is that the three‑month period specified by s 4.59 of the EPA Act commenced to run from the first of those publications, I am satisfied that this is not correct. The alternative position, that advanced by Mr Robertson for the Applicant, that the notice was contained in the publication incorporated in the list of DAs received and determined, as published on 15 July 2021 on the Council's website, is to be regarded as the date of publication for the purposes of s 4.59 of the EPA Act.
3. I have earlier set out the terms of the section itself and the terms of cl 124 of the 2000 Regulation, this being the applicable regulatory requirement needing to be met in order to satisfy the statutory provision.
4. In Hoxton Park Residents Action Group Inc v Liverpool City Council (2011) 81 NSWLR 638; [2011] NSWCA 349 (Hoxton Park), at [7] and [8], Basten JA set out the steps for such a compliant notice to meet the then applicable statutory terms. In this context, it is to be noted that the adoption, in March 2018, of the Dewey decimal numbering system for the EPA Act had the effect of converting what was, at the time of Basten JA's decision, s 101 of the EPA Act into s 4.59 of that Act but did not change the terms of the section.
5. It is also to be noted that the terms of cl 124 of the 2000 Regulation were in quite different terms (pre‑digital and web‑publishing terms) compared to that which presently applies (the change having been effected by the publication of the Environmental Planning and Assessment (Public Exhibition) Regulation 2020 on 17 April 2020 on the NSW Legislation website).
6. In Hoxton Park, from [9] to [29], Basten JA analysed the notice that was the subject of the claim by the then applicant as to its alleged failure to comply with the requirements for such a notice as set by the then terms of cl 124 of the 2000 Regulation. The effect of his Honour's reasoning is be understood that strict compliance with the requirements of the 2000 Regulation was necessary and that any deviation from, or inadequacy in, meeting those requirements would render the notice invalid.
7. In the present instance, the publications on the Council's website on 30 June 2021 and 1 July (being the dates relied upon by the Company as bases for submitting that the s 4.59 period had expired prior to 15 October 2021) were not in the express and confined terms of the details specified by s 4.59 itself. The publication on 15 July 2021, being that upon which the Applicant relies, did comply strictly with the requirements for a notice set by s 4.59 in terms and was published in compliance with cl 124 of the 2000 Regulation.
8. As a consequence, I am satisfied that the three‑month time period specified by s 4.59 did not commence to run until 15 July 2021, thus rendering these proceedings commenced on 14 October 2021 as being within time.

If the s 4.59 notice was given earlier than 15 July 2021

1. However, against the eventuality that I am wrong in reaching this conclusion as to the validity of the proceedings commenced by the Applicant as being within the three‑month period, there is an alternative basis which leads to the conclusion that the proceedings could (and should) be regarded as being validly commenced (if the correct starting date for the commencement of the statutory exclusionary period is that of either of the earlier publications on the Council's website).
2. I am fortunate that, in Lu v Walding (No 2) [2021] NSWLEC 21 (Lu v Walding), Pain J set out, between [103] and [123], an extensive and comprehensive analysis as to why the decision of the Court of Appeal in Woolworths Ltd v Pallas Newco Pty Ltd (2004) 61 NSWLR 707; [2004] NSWCA 422 survived to remain operative despite the decision of the High Court in Kirk v Industrial Court (NSW) (2010) 239 CLR 531; [2010] HCA 1. I do not propose to set out the terms of her Honour's analysis but I gratefully adopt her reasoning as explaining why s 4.59 would remain applicable to set, prima facie, an earlier barrier date that would apply to these proceedings commenced by the Applicant on 14 October 2021.
3. However, in Lu v Walding, her Honour then continued to explain, at [124] to [127], why a privative provision such as s 4.59 remains subject to the exceptions described as the Hickman principles (derived from the High Court's decision in R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598; [1945] HCA 53).
4. It is also unnecessary for me to set out the entirety of her Honour's reasoning as to why the Hickman principles remain applicable to be considered as to whether any of the exceptions set out by the High Court potentially provided a basis upon which to conclude that a pathway remained open to pursue a judicial review challenge of a decision, despite the effluxion of the time otherwise set to give rise to a barrier to the commencement of such proceedings.
5. It is, here, appropriate to set out the three matters that are derived from the High Court's decision in Hickman and now require consideration. They were described in the judgment of Dixon J (as his Honour then was), at page 615, in the following terms: Such a clause is interpreted as meaning that no decision which is in fact given by the body concerned shall be invalidated on the ground that it has not conformed to the requirements governing its proceedings or the exercise of its authority or has not confined its acts within the limits laid down by the instrument giving it authority, provided always that its decision is a bona fide attempt to exercise its power, that it relates to the subject matter of the legislation, and that it is reasonably capable of reference to the power given to the body.
6. For present purposes, I am satisfied that these proceedings commenced by the Applicant fall within the second of the Hickman principles and that, therefore, they are rendered capable of having been brought within time.
7. I have reached this conclusion because the grounds that are pressed on behalf of the Applicant question whether the determination made by the Planning Panel did constitute a bona fide attempt to exercise its decision‑making power given that the Applicant contends that, in a number of aspects set out in the various grounds which are later addressed, the Planning Panel acted in excess of its jurisdiction by not having proper regard to the restrictions placed on that exercise of jurisdiction.
8. However, for that to occur (if this basis of validity is necessary), the Applicant needs to be granted an extension of time until 14 October 2021 to validate the commencement of the proceedings. The ability to apply for, and to be granted, such an extension is governed by r 59.10 of the Uniform Civil Procedure Rules 2005 (UCPR), a provision in the following terms: 59.10 Time for commencing proceedings (1) Proceedings for judicial review of a decision must be commenced within 3 months of the date of the decision. (2) The court may, at any time, extend the time for commencing proceedings fixed by subrule (1). (3) In considering whether to extend time under subrule (2), the court should take account of such factors as are relevant in the circumstances of the particular case, including the following - (a) any particular interest of the plaintiff in challenging the decision, (b) possible prejudice to other persons caused by the passage of time, if the relief were to be granted, including but not limited to prejudice to parties to the proceedings, (c) the time at which the plaintiff became or, by exercising reasonable diligence, should have become aware of the decision, (d) any relevant public interest. (4) This rule does not apply to proceedings in which there is a statutory limitation period for commencing the proceedings. (5) This rule does not apply to any proceedings in which the setting aside of a decision is not required.
9. To consider if it is appropriate to grant such an extension, it is necessary to examine the explanation advanced by the Applicant for the delay in commencing proceedings by his reliance on the time period set by s 4.59 being taken by him as running from 15 July 2021.
10. There are two aspects of the Applicant's evidence in this regard which require consideration. The first element is contained in his affidavit evidence. In his affidavit dated 20 October 2022, the Applicant explained how he had become aware of the granting of the consent to the Company for its redevelopment of the site by his examination of the notice published on the Council's website on 15 July 2021. The relevant portion of his affidavit evidence was in the following terms: 1 I am the applicant in these proceedings. The purpose of this affidavit is to explain when and how I became aware of facts relating to the grant of the development consent for DA‑2020/238, for adaptive reuse of the existing building at 131 Sailors Bay Road, Northbridge (the Consent). 2 As mentioned in my earlier affidavit, my company Castle Constructions Pty Ltd (Castle Constructions) was involved in the construction of the neighbouring building at 135‑145 Sailors Bay Rd. Up to the present day Castle Constructions continues to own several lots in that building and occupies one of those lots as its business premises. 3 In October 2020, I became aware that DA‑2020/238 had been lodged, when it was placed on public exhibition. 4 On 22 November 2020, I lodged a submission objecting to that application on behalf of Castle Constructions. A copy of that submission is annexed to this affidavit and marked "A". 5 In late June 2021, I became aware that DA‑2020/238 was scheduled to be determined at a meeting of the Willoughby Local Planning Panel (WLPP) scheduled to be held on the afternoon of Tuesday 29 June 2021. I did not attend that meeting. However, my brother Joseph Lahoud attended the meeting. Following the meeting, Joseph informed me that the WLPP had "approved the DA subject to conditions which require the developer to submit amended plans" (or words to that effect). 6 From the time that I became aware of the WLPP's decision I contemplated bringing a legal challenge to the granting of the Consent. Through my experience as a property developer and a previous litigant in the Land and Environment Court, I was aware that the time for commencing any such challenge was 3 months from the date on which the Consent was publicly notified. I had that knowledge because I was aware of the terms of section 4.59 of the Environmental Planning and Assessment Act 1979 (the Act). 7 Through my experience as a property developer, I was aware that it was the practice of Willoughby City Council (the Council) to publicly notify the grant of new consents every 2 weeks by means of the List of Received and Determined Development applications published fortnightly on the Council's website. For a number of years it had been my practice to check this List, mostly on weekends, to keep myself informed about developments submitted and or approved in the Willoughby LGA. Approximated 75% of the developments which Castle Constructions has been involved in over the years have been in the Willoughby LGA. 8 In early July 2021, I searched the List of Received and Determined Development applications which was published on the Council's website. I did not find any reference to DA‑2020/238 in the most recent List which was published on the Council's website at the time (which was for the period to 25 June 2021). I knew at the time that the next version of that List would cover the two‑week period commencing on 26 June 2021. 9 On about 17 July 2021, I searched the List of Received and Determined Development applications which had been published on the Council's website on 15 July 2021. The List published on 15 July 2021 included a notification of the grant of the Consent. The List was also prefaced by the following statement: "Pursuant to s.4.59 of the Environmental Planning and Assessment Act 1979 and the Regulations, Council notifies the granting of the following development consents and/or Complying Development Certificates which can be viewed on Council's Application Tracking system". Annexed hereto and marked "B" is a copy of the List of Received and Determined Development applications published on the Council's website on 15 July 2021. 10 Having read the List of Received and Determined Development applications published on 15 July 2021, I formed the view that the 3‑month period referred to in section 4.59 of the Act commenced on 15 July 2021 and would expire on 15 October 2021. 11 Therefore, on 14 October 2021, I ensured that my solicitor filed the Summons commencing this proceeding, so that the proceeding was commenced before 15 October 2021.
11. The Applicant was also cross‑examined by Mr Galasso on this issue, particularly with respect to his interactions with Council and his subsequent engagement of Mr Woolf to commence the proceedings. Although somewhat lengthy, it is appropriate to reproduce the entirety of this element of Mr Galasso's cross‑examination of the Applicant (Transcript 2 November 2022, page 112, line 46 to page 118, line 19): Q. I just want to ask you first about that second affidavit. If you turn to page 3, in paragraph 9, you say that on or about 17 July, you searched the list, et cetera, and that the list published on 15 July included a notification. Do you see that? A. Yes. Q. And then, at the end of that paragraph, you say, "Annexed hereto and marked B is a copy of the list of received and determined development applications published on council's website on 15 July." A. Yes. Q. If his Honour turns to annexure B, that is a printout of a list made on 20 September 2021. You see that, top left‑hand corner? A. Yes. Q. You are not saying that this is a list that you printed out on 17 July, are you? A. No, no, this is not the actual copy. Q. Sorry? A. This is not the actual copy. Q. No, but someone printed this out on 20 September 2021, correct, and by 20 September 2021, you had engaged Mr Woolf to act on your behalf potentially in this proceeding. A. Yes. Q. And you've done that well before 20 September, hadn't you? A. Correct. Q. How many months before? A. I don't ‑ I don't recall. Several ‑ several months. Q. It was shortly after the meeting of 29 June, wasn't it? A. It wasn't shortly. It was, like, about a month, month and a half after. Q. So would it be fair to say that by about the end of July or around the end of July 2021, you had engaged Mr Woolf to act on your behalf potentially in relation to this matter? A. I believe so, around that time. Q. As part of your engagement of Mr Woolf, you had received some written advice from Mr Robertson of senior counsel, hadn't you? A. It wasn't ‑ it wasn't part of that, no. Sorry. Q. Have you received written advice from Mr Robertson in relation to this proceedings? A. Yes, I did. Q. What you received was a memorandum of advice dated 12 October 2021. A. I don't remember the date, but it will be Q. Let me show you a page of the advice, and it's only a page, Mr Lahoud, because that's all your legal team has provided ‑ a copy for his Honour ‑ and do you recognise this page? A. I don't. Q. You've never seen this before? A. I'm not saying I don't ‑ I haven't seen it. I don't recognise it now because it looks different to something I've seen before. Q. I want you to assume it's been provided to us, that is, my team A. Yes. Q. by your team, as an element of advice that's prepared by your team. A. Yes. Q. First of all, do you see the date, 12 October 2021? A. Yes. Q. That's before the date that the summons was filed in this proceeding, correct? A. Yes, yes. Q. And do you see, in paragraph 5 ‑ there's only one paragraph 5 there ‑ there's a sentence that starts, "Although UCPR 59.10 imposes a time limit". Do you see that? A. Yes. Q. And it talks about time limit of three months from the date of the decision which expired on 29 September 2021. A. Yes. Q. That is, expired. Past tense is used, so presumably, whoever has written this ‑ I assume it's Mr Robertson ‑ is writing this at some time after 29 September 2021. A. I'm assuming so. Q. Did you understand from that that there was the prospect that by the time this advice was prepared, the time limitation for commencing proceedings had already expired? A. No, I didn't. Q. Do you see in the middle of that paragraph, Mr Robertson says, "I am instructed that notice of the granting of the consent was published on 15 July 2021"? A. That's the sentence before, yes. Q. Is that on the basis of what you told Mr Woolf, or did you ask Mr Woolf to establish that date himself? A. No, this was on the basis of discussions I had with Mr Robertson previous ‑ previous to this document. Q. So is this the case, that you had discussion … GALASSO Q. May we take it, you had discussions with Mr Robertson well before 12 October 2021? A. Yes. Q. In the month of September, you'd had discussions with him. A. I think it was earlier as well. Q. Notwithstanding those discussions and notwithstanding what's raised in this paragraph 5, your instructions to your solicitor ‑ this is paragraph 11 of your affidavit ‑ were that you say, "On 14 October, I ensured that my solicitor filed the summons commencing this proceeding." A. Sorry, which paragraph? Q. paragraph 11. A. Yes. Q. I'm interested in the word, "ensured". Did you give him instructions on the 14th to file on that day, or had you given him instructions to file earlier than the 14th? A. No, the instructions were to file prior to the 15th of ‑ of ‑ of October. Q. But when did you give that instruction? A. Earlier. I'm ‑ I'm not sure how much earlier. Q. Are you able to assist us with approximately how much before 14 October you gave the instruction to commence proceedings? A. I'm trying to recall, actually. It could have been ‑ I know, actually, it was on the date we got the advice from Mr Robertson in writing, which was about, I think, the day before or two days before. Q. So is this the case, you'd provided instructions to your legal team well before September. You had had conferences with your legal team before and including September, but you waited until Mr Robertson's advice on 12 October to give instructions to commence proceedings. A. Yes. Q. And your instructions weren't to commence proceedings straightaway. Your instructions were to commence proceedings on 14 October, were they not? A. As long as it was before the 15th. No later than the 15th. Q. Sorry, did you give instructions to commence proceedings on the 14th, or did you give instructions earlier than the 14th to commence proceedings? A. I ‑ I gave instructions for the summons to be filed on the 14th, or no later than the 15th. If that's what's commencing proceedings, the answer is yes. Q. Sorry if you misunderstood what I meant by commencing proceedings. The filing of the summons A. Yes. Q. you said file it on 14 October. A. Correct. Q. That is, you've purposely waited for the very last moment for what you thought was the period that you could file the summons. A. I did not wait deliberately. I was ‑ I waited until I received firm advice from Mr Robertson about the prospect. Q. Is this the case, do you know when Mr Robertson was briefed to provided his firm advice? A. I don't recall the date, but I know when he provided it. It was early Q. I know, but that wasn't my question, was it? A. Sorry. Q. Do you know when Mr Robertson was asked to provide his advice? A. About prospects? Q. Yes. A. It was ‑ I'm guessing it could be early September. Q. So, is this the case that, if you waited until you got prospects advice to make the decision to file the proceedings, and the request for advice was early September, would you agree that had you received the advice in September, there is the possibility that you would have given instructions to commence proceedings in September? A. There were other complications in ‑ in the ‑ in the ‑ in the issue, and I can explain it if you ‑ if you want me to. But the answer would have been, "yes'. If ‑ if ‑ if I had the same advice earlier, we would have filed it ‑ we would have filed the summons early. Q. And you're aware, are you not, that my team has taken a point about time? A. Yes, yep. Q. May we take it, if you were aware about the debate about time‑‑ A. Yes. Q. ‑‑you would have commenced proceedings earlier than 14 October. A. Provided I had the advice and ‑ and the other complication that I had to deal with was sorted out, the answer is yes. Q. Well, he's going to ask you in re examination what the other complication was. A. I'll be happy to tell him. Q. I may as well ask you now. A. It's ‑ it's ‑ this is ‑ this is not ‑ I mean, the proceedings are in my name but there's the owner's corporation involved. We had to do a lot of work and call meetings and ‑ and obtain approvals from a number of owners about ‑ about joining in the proceedings and then working out how to do it. It was a very complicated matter, and it took some time. Q. But these proceedings have nothing to do with the owner's corporation, Mr Lahoud. They're brought in your own name. A. They are in my own name, but they do have something to do with the owner's corporation. There's an agreement between me and the owner's corporation about that. Q. About costs? A. Correct. Q. So, is this the case that, is the owner's corporation funding your litigation, is it? A. They're not funding the litigation; they are sharing part of the costs of the litigation. Q. So, if you lose, they pay some of the costs. A. No. The agreement is whether I lose or not, they pay some of the costs and I pay some of the costs. If we ‑ if we lose we lose. If we‑‑ Q. So, these are proceedings not only brought by you and your own name, they're brought on behalf of other people. Is that the case? A. Correct. Q. But that's not something that anyone was aware of until a few moments ago. A. I ‑ if anybody asked me about it, I would have told them. The owners ‑ the owners involved are aware of it. Q. Well, the owners involved were aware of the decision on 29 June, were they not? A. I'm not sure that they were all aware of the decision, no. Q. You certainly were aware of the decision on 29 June, were you not? A. I knew of the decision on 29th or the ‑ I think the 29th, yes. Q. But the meeting by the panel, that was a meeting that was undertaken on a Zoom format was it? Was on an audio visual format? A. I didn't attend the meeting. I believe it was Zoom. Q. But you were in the Zoom loop, were you not? A. I was not, no. Q. Are you sure about that? A. I wasn't able to make it, so I trusted Youseff to tell me what happened at the meeting. Q. You entrusted your brother to tell you. A. That's correct. Q. And he told you immediately following the meeting. A. Sorry? Q. He told you immediately following the meeting what had happened. A. Correct, yes.
12. At its longest, the delay between the expiry of the s 4.59 of the EPA Act exclusionary period founded on the first of the publication dates on the Council's website (29 June 2021) and the actual date of the commencement of these proceedings was some sixteen days.
13. I am satisfied that the evidence given by the Applicant explaining the reasons for the delay, when coupled with the comparatively modest period of the delay, does provide an adequate basis, if it is necessary to do so, upon which to grant an extension of time for the commencement of the proceedings pursuant to r 59.10 of the UCPR. To the extent necessary, my orders will provide that, pursuant to r 59.10 of the UCPR, the time within which the Applicant could commence these proceedings is extended up to and including 14 October 2021.

The relevant general provisions of the EPA Act

1. It is, first, appropriate to set out the terms of the provision of the EPA Act, which permits the Applicant to bring these proceedings (having found for reasons earlier explained, that the proceedings have been validly commenced). The provision which permits the bringing of these proceedings is 9.45, a provision in the following terms: 9.45 Restraint etc of breaches of this Act (1) Any person may bring proceedings in the Court for an order to remedy or restrain a breach of this Act, whether or not any right of that person has been or may be infringed by or as a consequence of that breach. (2) Proceedings under this section may be brought by a person on his or her own behalf or on behalf of himself or herself and on behalf of other persons (with their consent), or a body corporate or unincorporated (with the consent of its committee or other controlling or governing body), having like or common interests in those proceedings. (3) …. (4) (Repealed)
2. It is also relevant to set out the terms of the provision that establishes the range of orders available to the Court if, in proceedings brought pursuant to s 9.45, a breach of the Act is established. These are set out in s 9.46. The terms of s 9.46 are: 9.46 Orders of the Court (1) Where the Court is satisfied that a breach of this Act has been committed or that a breach of this Act will, unless restrained by order of the Court, be committed, it may make such order as it thinks fit to remedy or restrain the breach. (2) …. (3) …. (4) The functions of the Court under this Division are in addition to and not in derogation from any other functions of the Court. (5) ….
3. As can be seen from the terms of s 9.46(1), the question of whether or not the Court should intervene if a breach of the act is established is a discretionary one, the exercise of which discretion must be undertaken judicially. This is a provision to which I will later return.

Other relevant statutory matters

1. As a significant number of elements of the Willoughby Local Environmental Plan 2012 (the LEP) are engaged for different grounds in the Further Amended Summons, the relevant provisions of the LEP will be set out in the context of that ground. In addition, elements of the EPA Act and State Environmental Planning Policy 55 ‑ Remediation of Land (SEPP 55) will also be set out at the relevant point in this decision if another provision requires specific consideration. Although SEPP 55 was replaced by State Environmental Planning Policy (Resilience and Hazards) 2021, this took place after the making of the Planning Panel's decision.
2. In a number of instances, relevant clauses of the LEP referred to maps that define the relevant planning controls. Each of those maps is accessible electronically through the maps function linked to the LEP on the NSW Legislation website.

Seeking dispensation from compliance with development standards

1. For present purposes, it is sufficient to note only one provision of the LEP. This is a general beneficial and facultative provision, cl 4.6, which enables an applicant for development consent to request dispensation from compliance with any development standard contained in the LEP that would otherwise act to limit a relevant aspect of the proposed development.
2. Subject to satisfaction of the tests set out in the clause, the clause enabled the Planning Panel to consider and approve any request made by the Company to be permitted not to comply with the development standard subject to such a request. This clause of the LEP is in the following terms: 4.6 Exceptions to development standards (1) The objectives of this clause are as follows - (a) to provide an appropriate degree of flexibility in applying certain development standards to particular development, (b) to achieve better outcomes for and from development by allowing flexibility in particular circumstances. (2) Development consent may, subject to this clause, be granted for development even though the development would contravene a development standard imposed by this or any other environmental planning instrument. However, this clause does not apply to a development standard that is expressly excluded from the operation of this clause. (3) Development consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating - (a) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and (b) that there are sufficient environmental planning grounds to justify contravening the development standard. (4) Development consent must not be granted for development that contravenes a development standard unless - (a) the consent authority is satisfied that - (i) the applicant's written request has adequately addressed the matters required to be demonstrated by subclause (3), and (ii) the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, and (b) the concurrence of the Planning Secretary has been obtained.
3. The terms of cl 4.6 of the LEP set a number of gateway tests mandated to be addressed in an applicant's dispensation request. The request must satisfy each of these gateway tests to the satisfaction of the consent authority before such a dispensation request can be approved (RebelMH Neutral Bay Pty Limited v North Sydney Council [2019] NSWCA 130 (RebelMH) and Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118).
4. In this instance, the Company has made such a request seeking dispensation from compliance with the Height of Building Development Standard that would otherwise be applicable to, and setting the permitted maximum height for, any proposed development on the site. Dispensation from compliance with the Height of Building Development Standard applicable to the site is necessary in order to permit consent being granted to the proposed additional upper level sought to be constructed on the site. This was the only such request that accompanied the Company's DA and, thus, which was considered by the Planning Panel.
5. It will, later, be necessary to consider not only the terms of the Company's dispensation request concerning compliance with the height of buildings clause in the LEP (a dispensation request acceded to by the Planning Panel in granting consent to the Company's proposed development of the site), but also as to whether, with respect to several other aspects of the Company's approved development, such a request should have been made but was, in fact, not made.

Orders sought

1. The orders sought in the Further Amended Summons are: (1) Declare that the decision to grant development consent was not validly made. (2) Order that the consent and any construction certificate issued with respect to the consent be set aside. (2A) Order (on grounds referred to in paragraphs 8(e), 16B, 17 or 26) that the development application be refused. (3) Costs.
2. The detailed matters particularised with respect to each ground are set out at the commencement of the section of this judgment dealing with that ground.

Potentially relevant recent decisions of the Court of Appeal

Introduction

1. After I had reserved my decision at the conclusion of the hearing, two decisions of the Court of Appeal have been delivered addressing matters potentially capable of having a significant impact in the shaping of the outcome of these proceedings generally (or on individual grounds pressed on behalf of the Applicant in these proceedings as a consequence of the way a potentially relevant ground was pleaded).
2. As discussed in this portion of my judgment, the parties were provided with the opportunity to make submissions as to whether or not (and, if so, how) these decisions, potentially impacted on the approach I was required to adopt to all or any of the grounds pressed by the Applicant in his Further Amended Summons.
3. As a consequence, it is appropriate to set out the submissions provided for each of the active parties concerning each of these appellate decisions. Although the second of these appellate decisions might be characterised as one which subsumed the reasoning in the first, as the submissions on the first were referenced in the submissions on the second, the submissions on each of them are relevant for my consideration.

Introduction

1. On 17 November 2022, the Court of Appeal handed down its decision in Ross v Lane [2022] NSWCA 235 (Ross v Lane). In that decision, the majority (Macfarlan JA and Basten AJA) addressed the question of the nature of matters to be determined by a consent authority as being purely matters for such assessment, rather than giving rise to any potentiality for determination of a jurisdictional fact. As it seemed to me that this position had potential relevance for a number of the grounds in these proceedings, I extended an invitation to the parties to make submissions on the relevance of the decision in Ross v Lane in the context of the grounds pleaded in these proceedings. The parties availed themselves of this opportunity, with concise written submissions being provided (including written submissions in reply on behalf of the Applicant).

The Applicant's submissions on Ross v Lane

1. The submissions on behalf of the Applicant advanced the general proposition that the decision in Ross v Lane had no bearing on matters requiring determination. These submissions are set out below: 1. Ross v Lane [2022) NSWCA 235 (Ross) was decided on the premise that no question of permissibility or prohibition arose, and the only role of SEPP 65 was a factor for consideration ins. 4.15 (1)(a) of the Environmental Planning and Assessment Act 1979 (the EPA Acgt). By identifying that provision as the source of power for applying the SEPP, the majority reasoned that the question of its application fell within the assessment function of the consent authority. The question which the majority asked itself was whether the "application" of the SEPP in a particular case was a matter for the consent authority, subject to judicial review by the Court. The question was answered because it was s. 4.15 that required the consent authority to have regard to it and hence the appropriate implication was that the consent authority is empowered and required to determine which matters are relevant, and how they are engaged, in relation to a particular development application. There was in that case no clearly distinguishable function of classification as there was in determining the power of the authority to engage at all: [100), [102) ‑ [103). 2. To the extent that the application of a planning instrument is to be determined solely by reference to s. 4.15, the decision of the majority in Ross is unsurprising. All 4.15 factors are matters for consideration by the consent authority. Nothing in the decision disturbs the usual construction of ss.4.1‑4.3 of the EPA Act where an instrument has the effect of prohibiting development or prohibiting its carrying out unless it is in accordance with the instrument. Nor does it affects. 9.44, which deems a breach of an instrument to be a breach of the Act, and s 9.45 which enables the instrument to be enforced as if it was the Act. None of those provisions were in play in Ross. 3. Does Ross have any implications for this case? As Basten AJA said [73) Ross did not seek to challenge the Council's decision on conventional judicial review grounds. Lahoud is pleaded quite differently to Ross. Every ground raises conventional judicial review errors. The question whether the development was shop top housing (ground 3) was a matter submitted for judicial determination, but Ross was careful to carve out such questions by preserving its decision in Pallas Newco, so that decisions about permissibility and other jurisdictional preconditions are not to be finally determined by the consent authority. In any event, the ground raises a conventional judicial review question concerning the construction of a definition, which is a question of law. 4. Ground 2 attacked the Panel's decision about active street frontage, but it did so expressly on conventional judicial review grounds by pointing to the legal flaws in each reason given by the Panel for expressing its satisfaction that the building would have an active street frontage: Amended Summons (AS), para 15. It is unnecessary to parse each alleged error: all fall within the passage in Buck v Bavone (1976) 135 CLR 110 at 118 ‑ 119, cited by Basten AJA in Ross at [70] and by us in submissions. Suffice to say that AS [15] challenges an opinionative determination for error of law and misconstruction of the clause, leading to a failure to take into account relevant considerations, taking into account irrelevant considerations and making a decision which no reasonable decision‑maker could have made, demonstrating a misunderstanding of the nature of the opinion that must be formed: R. v. Connell; ex parte Hetton Bel/bird Collieries Ltd (No 2) (1944) 69 CLR 407 at 432. 5. Another way to classify the ground is that the Panel failed to address, on a proper construction of the control, the question for decision: a constructive failure to exercise jurisdiction. This is not a separate ground of review but a more precise way of expressing the existing grounds. It was discussed by Kirk JA in Ming v. OPP (NSW) [2022] NSWCA 209 at [12] ‑ [13], and by Basten JA in Alexandria Landfill v. Transport for NSW [2020] NSWCA 165 at [6] ‑ [10]. It is a failure to exercise the power or complete its exercise by reason of having failed to engage with an issue of importance to the matter being resolved: Ming [15]. It has nothing to do with jurisdictional facts but concerns the decision‑maker's misunderstanding of what it has to decide. It arises where there is a seriously mistaken view of the facts or an error of law concerning the scope of the decision‑maker's powers: Alexandria at [10]. In Dranichnikov v. Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088; [2003] HCA 26, Kirby J said that not every mistake in understanding the facts in applying the law or in reasoning to a conclusion will amount to a constructive failure to exercise jurisdiction, but it will where the mistake is essentially definitional, it amounts to a basic misunderstanding, and the flaw is so serious as to undermine the unlawfulness of the decision in question in a fundamental way: [88], applied in Alexandria at [9]. 6. Ground 5 is a failure to consider ground, which is conventional judicial review. AS [41] could also be characterised as a constructive failure to exercise jurisdiction because of the absence of information in the report on which the Panel relied concerning contamination and the incorrect assumption in the report that the development did not involve excavation and therefore contamination was irrelevant. That assumption was legally as well as factually flawed because contamination may arise from sources other than fill (e.g., asbestos in building materials) and factual errors if centrally relevant to the legal question which the consent authority must determine may amount to a constructive failure to exercise jurisdiction, a failure to take into account a relevant consideration or manifest unreasonableness. The best example is Minister for Aboriginal Affairs v. Peko‑Wallsend (1986) 162 CLR 24 which was discussed in our submissions. By adopting the Council report, the Panel clearly misunderstood the application (no excavation) and therefore did not consider contamination in the same way as the Aboriginal Land Commissioner failed to consider detriment because of a factual error concerning the location of mining prospects. There are two alternative grounds (42] and (43]. The first, a failure to satisfy itself that the land was not contaminated and the second, a failure to make enquiries as to whether it was contaminated. These are also conventional grounds. 7. Ground 6 involves a breach of clauses 7 (2) and (3) by failing to consider a report specifying the findings of a preliminary investigation of the land for contamination. Once again, no reasons were provided for the Panel's implicit decision not to consider such a report. It does not appear that the Panel considered the application of cl. 7 (4) at all. In the absence of any reasoned consideration, where the outcome of the decision contradicts obvious facts, or is capable of explanation only on the ground of a misconception, the Court may imply that some error of law was made or irrational fact finding was undertaken: Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353 at 360: "it is not necessary that you should be sure of the precise particular in which he has gone wrong". The Court should infer the error because the evidence is clear that cl. 7(2) is triggered on the facts. In any event, it was also argued that the ground should be understood as a failure to consider cl. 7(2): Applicants Submissions (90]. In Moorebank Recyclers Pty Ltd v Benedict industries Pty Ltd (2015] NSWLEC 40 Preston CJ described cl. 7 (2) as a precondition to the exercise of the power to determine a DA that involved a change of use of any of the land specified in cl. 7 (4) (46]. He treated cl. 7 (4) as objective: (49] and found on the facts before him that cl. 7 (2) was engaged (51], [108].

The Company's submissions on Ross v Lane

1. The Company's submissions on Ross v Lane were in the following terms: 1. These supplementary submissions address the relevance of Ross v Lane [2022] NSWCA 235 (Ross v Lane) to Grounds 2, 3, 5 and 6 of the Further Amended Summons (FAS). They use the defined terms employed in the Respondent's Closing Submissions (RS). 2. Ross v Lane was an appeal from the decision in Olivia Ross v Patrick Lane (No 2) [2021] NSWLEC 121 (LEC Decision). The first respondent obtained development consent from the second respondent for modifications and extensions to his apartment on the top floor of a building including the construction of an additional storey (Consent). The appellant (applicant at first instance) commenced Class 4 Proceedings seeking a declaration that the Consent was invalid and consequential injunctive relief on the basis that had been a failure to consider State Environmental Planning Policy No 65 - Design Quality of Residential Apartment Development (SEPP 65): LEC Decision at [6]-[7]. It was agreed that Part 4 of SEPP 65 and ell 50(1A) and (1AB) of the Environmental Planning and Assessment Regulation 2000 (NSW) were not applied as part of the assessment process. 3. Three issues arose: first, whether the facts required to be established in order for SEPP 65 to apply were jurisdictional facts; second, if so, did the development consist of "the substantial redevelopment or the substantial refurbishment of an existing building" for the purpose of cl 4(1)(a)(ii); and, third, if so, whether the Court would refuse the relief sought pursuant to s 25B of the LEC Act: LEC Decision at [11]. The primary judge did not decide the first issue. His Honour proceeded on the assumption that "cl 4(1)(a)(ii) of SEPP 65 does require the determination of a jurisdictional fact": LEC Decision at [86]; see, also, [36], [87]. In relation to the second issue, the primary judge found that SEPP 65 did not apply because the subject development "cannot be regarded as 'the substantial redevelopment or the substantial refurbishment of an existing building"' for the purpose of cl 4(1)(a)(ii) of the SEPP 65: LEC Decision at [153]. Accordingly, the third issue did not arise: LEC Decision at [155]. 4. On appeal, the majority held that the primary judge erred by not determining the first issue ([71]) and by determining the second issue: "the applicability of SEPP 65 was not a matter which the Court was entitled to determine for itself'': see, Basten AJA at [73]; Macfarlan JA agreeing at [1]. The majority concluded that "the application of the environmental planning instruments, including SEPP 65, in a particular case where development is permissible with consent, is a matter for consideration by the consent authority in the first instance (subject to statutory forms of review and appeal) and does not require (or permit) determination by the court'': at [100]. That is the ratio deddendi of the case. The reasoning is expressed in terms of "environmental planning instruments" generally and is not limited SEPP 65. 5. The Majority identified (at [2]-[5], [76]-[84]) factors relevant to whether a fact is a jurisdictional fact: see, also, Reysson Pry Ltd v Minister Administering the Environmental Planning and Assessment Act 1979 [2020] NSWCA 281; 247 LGERA 277 at [55]. By way of summary: first, it is primarily a question of statutory construction; second, regard must be had to the broader legislative framework of which the relevant section forms part; third, questions that involve straightforward questions into objective facts will be more likely to be directed toward jurisdictional facts than questions involving complex, value laden judgments; and, fourth, the consequences of finding that an issue concerns a jurisdictional fact are relevant. Application of Ross v Lane to Grounds 2, 3, 5 and 6 6. Ground 2: The application of cl 6.7(3) is a matter for the decision maker. Although the enquiry under cl 6. 7 (3) is ostensibly "objective" because it effectively asks whether "all ground floor premises facing the street are used for retail premises or business premises" (emphasis added), the enquiry is underpinned by evaluative judgments on questions of fact and degree because it turns on questions of characterisation. To quote Biscoe J in Australians far Sustainable Development Inc v Minister far Planning [2011] NSWLEC 33; 182 LG ERA 370 at 146 "the task of characterisation is first and foremost a question of fact and degree". However, unlike questions of characterisation, the question here is more readily described as a part of the process of determination, as distinct from a determination that is "extrinsic or preliminary or ancillary to the exercise of the power to grant consent'': cf, Pallas Newco at [51]. Clause 6. 7 is required to be considered under s 4.15 of the EPA Act, which is a context in which "many, if not all, of the matters referred to in the [sub] paragraphs of that section are of a clearly non-jurisdictional fact nature": Ross v Lane at [4], [94]. The inconvenience which would arise if the application of cl 6. 7 was concerned with jurisdictional facts suggests that it is matter for the consent authority: Ross v Lane at [5], [82]. 7. Ground 3: On the reasoning in Pallas Newco, which was applied in Ross v Lane at [2], [41], [78], the Respondent accepts that whether the development is for the purpose of "shop top housing" may be authoritatively determined by the Court. 8. Ground 5: The Court may determine if the Council failed to consider cl 7(1) of SEPP 55. However, if the Court is satisfied that the issue was considered, it is not a matter for the Court to determine if the Panel made the right finding or to second guess the sufficiency of the evidence. Contrary to the Applicant's submission, there was material before the Panel regarding contamination: see, RS at [97]. To the extent there may have been any error in the finding that the Land was not contaminated, it was an error within jurisdiction. In support of Ground 5, the Applicant pleads a number of facts that it asks this Court to find (FAS at [34][38]); attacks the factual basis of Council's Assessment Report: FAS at 41 and (f); and, contends that Council should have found that a preliminary investigation was required: FAS at [44]. This is an attempt to dress up merits review as jurisdictional error. It was a matter for the consent authority to determine whether the Land was contaminated. 9. Ground 6: The application of subclauses 7(2) and (3) is a matter for the consent authority: Ross v Lane at [100]. Subclauses 7(2) and (3) only apply if the proposed development would involve a change of use on any of the land specified in subclause 7(4). The enquiry under cl 7(4) is not extrinsic or preliminary or ancillary to the exercise of the power to grant consent. The consideration of SEPP 55 arises under s 4.15 of the EPA Act. It involves complex, evaluative judgments and would occasion considerable inconvenience if it were a matter to be determined authoritatively by the Court. For the reasons set out in Ross v Lane at [87]-[100], the Court is not required or permitted to determine the application of cll 7(2) and (3) for itself. By inviting this Court to determine this issue (see, FAS at [47]), the Applicant asks this Court to do the very thing that the majority in Court of Appeal has held is not permissible: see, Ross v Lane at [100]. The Applicant's submissions conceal the fact that Ground 6 first requires the Court to be satisfied that cll 7(2) and (3) apply. The fact that the application of subclauses 7(2) and (3) is not a matter that this Court may determine means Ground 6 must fail.

The Applicant's submissions in reply on Ross v Lane

1. The Applicant's submissions on Ross v Lane were in the following terms: 1. In Michael Brown Pty Ltd v. Wingecarribee Council (2020) 247 LGERA 221, Basten JA (speaking for the Court) said that a provision imposing a precondition to the engagement of the authority to consent was a jurisdictional fact [24], and therefore likely not to involve any kind of evaluative judgment of the kind required to determine a DA on its merits [25]. The provision in question prevented the grant of consent unless the consent authority was satisfied that the development was compatible with the flood hazard of the land [4]. These jurisdictional preconditions are well known, and nothing in Ross v. Lane overrode their usual construction. 2. In the case of ground 2, it is a subjective jurisdictional fact, but ground 5 is not. The facts pleaded in that ground were relevant to failure to consider (misunderstanding the DA, overlooking a critical fact) and had nothing to do with the Panel's factual assessment, of which there was none. The facts pleaded at [34] - [37] of the FAS are relevant to materiality, not breach, and to the duty to make inquiries ground (what would have been discovered had an inquiry been made) - see [44]. Para [38] is relevant to [41] e. and f. 3. Clause 7 (2) and (3) are preconditions to engagement (see AS [7]) and involve no evaluation at the outset - simply an enquiry about past use, or zoning and a decision whether or not the table is engaged and therefore a report must be considered. The consideration thereafter is undoubtedly subjective.

The decision of the Court of Appeal in El Khouri v Gemaveld Pty Ltd

Introduction

1. On 12 May 2023, Mr Salon, a solicitor employed by the Company's legal representatives, sent an e-mail to my Associate concerning the then recent decision of the Court of Appeal in El Khouri v Gemaveld Pty Ltd [2023) NSWCA 78 (El Khouri). Mr Salon's e-mail said: Salon for the Second Respondent in the Lahoud v Helm Pty Ltd ‑ NSWLEC 2021/00292505 proceedings. This is a joint communication by the parties in the proceedings. As his Honour may be aware, the Court of Appeal has recently handed down its decision El Khouri v Gemaveld Pty Ltd [2023] NSWCA 78 which appears to the parties to be of relevance to the Lahoud v Helm proceedings in which his Honour's decision is reserved. In those circumstances, the second respondent writes to enquire as to if his Honour would like any supplementary submissions to be made by the parties on the El Khouri v Gemaveld decision, and if so, the parties will confer and put a proposed timetable for those submissions to his Honour. The Applicant for his part seeks leave to make submissions on the El Khouri decision. If his Honour is minded to grant leave we will confer with the second respondent in relation to a proposed timetable for such submissions. I confirm the solicitor for the Applicant is copied on this email. May it please the Court.
2. On 18 May 2023, I instructed my Associate to write to the parties in the following terms: His Honour has now been able to access and read the decision. His Honour had nearly finalised his decision before he went on leave. However, he accepts that the parties should be provided with the opportunity to make submissions on what may be its relevance in these proceedings. However, in order not to delay the finalisation of the case unduly, he considers that the Respondent should have two weeks for submissions, followed by two weeks for the Applicant to reply.

The Company's submissions on El Khouri

1. The Company's submissions on El Khouri were received on 1 June 2023. These submissions were in the following terms: 1. Since judgment in these proceedings was reserved, the NSW Court of Appeal delivered judgment in El Khouri v Gemaveld Pty Ltd [2023] NSWCA 78 (El Khouri). These submissions address the effect of El Khouri on the Applicant's grounds of review. They adopt the terms defined in the Respondent's previous submissions. 2. In El Khouri, the applicant sought to quash a development consent granted by the LEC pursuant to s 34 of the LEC Act on the basis that the approved development exceeded the height restriction applicable to the land. The "principal and dispositive issue [was] one of statutory construction, namely, whether compliance with the height restriction is a jurisdictional fact which can be reviewed by this [the Court of Appeal] on the basis of evidence not before the [LEC]": El Khouri at [2]. For the reasons given by Leeming JA (Gleeson and Adamson JJA agreeing), the Court held that compliance with a height restriction in a local environmental plan is not a jurisdictional fact (at [2], [53]). Critically, the Court went further and held that compliance with an "environmental planning instrument" is not a "jurisdictional prerequisite" to the LEC's power to grant consent under s 34(3): El Kouri at [74]. Leeming JA concluded (at [75]): "It is plain that the Commissioner had regard to cl 4.3 of the Kogarah LEP. He expressly formed the only view that was open to him on the evidence which was available to him, namely, that there was compliance with the height requirement. That decision is not vitiated merely because the applicants can establish, by evidence not made available to the Commissioner, that there was not compliance with that clause." 3. This passage also underscores the difficulty with trying review a decision on judicial review grounds based on materials that were not before the decision maker. Application of El Khouri to the facts of this case 4. Although this case involves the Panel's power to grant consent rather than the LEC's (as was the case in El Khouri) or a council's (as was the case in Ross v Lane), it involves the same considerations, and the same powers, because s 2.19 of the EPA Act provides that the Panel has "the specified functions of a council as a consent authority under Part 4 that are conferred on it under this Act" (emphasis added): see, El Khouri at [52] and s 8.14 of the EPA Act. Accordingly, the same principles apply. The effect of El Khouri is that while the Panel was required "to take into consideration" the WLEP and SEPP 55 in determining the DA under s 4.15(1)(a)(i) of the EPA Act, compliance with those environmental planning instruments was not a jurisdictional prerequisite to the Panel's power to grant consent: El Khouri at [74]. To reframe the proposition, a non‑compliance with the WLEP or SEPP 55 will not invalidate the Decision. 5. Accordingly, to the extent that the Applicants grounds of review depend on non‑ compliance with cl 4.3 "Height of buildings" (Ground 1), cl 6.7 "Active street frontages" (Ground 2), the B2 Land Use Table "Shop top housing" (Ground 3), cl 4.4 "Floor space ratio" (Ground 4) of the WLEP, and cll 7(1)‑(3) of SEPP 55 (Grounds 5 ‑ 6), those grounds must founder. 6. The Panel formed a view that was open to it on the available materials. The Applicant cannot now challenge that decision on the basis new evidence that was not before the Panel: El Khouri at [75].

The Applicant's submissions on El Khouri

1. The Applicant's submissions on El Khouri were received on 21 June 2023. These submissions were in the following terms: 1. These submissions should be read with the applicant's submissions about the Court of Appeal's decision in Ross v Lane (2022] NSWCA 235, which are dated 25 November 2022 and 5 December 2022. 2. These submissions respond to the second respondent's submissions filed on 1 June 2023 in respect of the Court of Appeal's decision in El Khouri v Gemaveld Pty Ltd [2023] NSWCA 78. 3. In El Khouri, the Court of Appeal applied the reasoning in Ross v Lane in deciding that compliance with cl 4.3 of the Kogarah LEP (a height of buildings control), being a matter to which regard was required pursuant to s 4.15(1)(a) of the Environmental Planning and Assessment Act 1979 (the EPA Act). was not a jurisdictional fact (at (53]). 4. The facts in El Khouri were as follows. The first respondent, Gemaveld, lodged a development application with Georges River Council for consent to construct a residential dwelling and other structures (at (5]). The proposed development was permissible with consent. The Kogarah LEP imposed a height limit of 9 metres on the land (at [6]). Council refused development consent, and Gemaveld commenced a Class 1 appeal m the Land and Environment Court (at [7]). During the Class 1 proceedings, the parties participated in a s 34 conciliation conference and an agreement was reached between the parties (at [9]). A Commissioner of the Court was satisfied that the agreed decision was one that the Court could have made in the proper exercise of its functions (see s 34(3) of the Land and Environment Court Act 1979 (NSW)) and made orders granting consent to the proposed development (at [10]). Importantly, at the time of the decision, the material before the Commissioner indicated that the proposed development complied with the 9‑metre height limit. and in his decision the Commissioner stated that he was satisfied that the proposed development complied with the height limit (at [8]‑[9]). Leeming JA stated at [11). "The Commissioner could not have reached any other view based on the material before him."·· 5. Following the Land and Environment Court's decision, the applicants commenced proceedings in the Court of Appeal's supervisory jurisdiction to have the decision set aside on the ground that "the Court had no power to make the decision to grant consent to the DA because it was not a decision that the Court could have made in the proper exercise of its functions, within the meaning of s 34(3) … in that the height of the proposed development exceeded the relevant height control in the Kogarah LEP and there was no request to vary that standard as required by cl 4.6 of that LEP' (at [13]). In support of that ground of challenge, the applicants relied on surveying evidence which was not before the Commissioner which established that the proposed development in fact exceeded the height limit (at (13]‑[17]). 6. Given this factual background, Leeming JA (with whom Gleeson and Adamson JJA agreed) framed the issues for the Court's decision as follows (at [18]‑(20]): "[18] It will be clear from the state of the evidence summarised above that the proceedings raised the question of jurisdictional fact acutely. It was common ground in this Court that the 9m height control was exceeded by the proposed developments. But the position before the Commissioner was precisely the opposite It was common ground before the Commissioner. and the entirety of the evidence pointed in one direction, that there was no exceedance of that height control [19] Thus, it is clear that the Commissioner formed the opinion that the proposed building did not exceed the 9m height limit, and it Is clear that he did so properly in a manner which Is not susceptible to challenge based on the evidence before him. On the other hand, if the power to issue consent turns not on the opinion that the building did not exceed the height control, but on the fact that the building did not exceed the height control. then plainly that fact is not established. [20] It was also made clear during argument that not only was there no suggestion of any fraud on the part of any of those involved in preparing or evaluating the development application, but there was also no suggestion of any negligence. Hence the issue may be framed as whether a non‑negligent error resulting in a development application which in fact breaches cl 4.3 of the Kogarah LEP Is a Jurisdictional fact entitling this Court, on different evidence, to set aside the decision of the Land and Environment Court." 7. Applying the Court's reasoning in Ross v Lane, the Court held that compliance with cl 4.3 of the Kogarah LEP was not a jurisdictional fact (at [53]), and therefore the challenge to the Land and Environment Court's decision was dismissed. 8. In its submissions filed on 1 June 2023 at [4]‑[6], the second respondent submits that, in light of the Court of Appeal's reasoning in El Khouri, each of the applicant's grounds of challenge to the Panel's decision "must founder" because "the Panel formed a view that was open to it on the available materials" (at [6]). Those submissions should not be accepted for the following reasons. 9. Ground 1 (Contravention of height standard) attacks the Panel's decision on conventional judicial review grounds, namely taking into account irrelevant considerations in deciding that the second respondent's written request to contravene the height standard satisfied cl 4.6{3) of the LEP: see AS [6]. 10. Ground 2 (Active Street Frontage) also attacks the Panel's dec1s1on on conventional judicial review grounds by pointing to the legal flaws in each reason given by the Panel for expressing its satisfaction that the building would have an active street frontage: see AS [15]. The ground challenges an opinionative determination for error of law and misconstruction of the clause. leading to a failure to take into account relevant considerations, taking into account irrelevant considerations and making a decision which no reasonable decision‑maker could have made. As previously submitted, this ground challenges the Panel's decision on the basis that it failed to address, on a proper construction of the control. the question for decision: a constructive failure to exercise jurisdiction. It has nothing to do with jurisdictional facts but concerns the decision­ maker's misunderstanding of what it has to decide. 11. Ground 3 (Shop top housing) raises the issue whether the DA is prohibited as It is not shop top housing. As previously submitted, Basten AJA's reasoning in Ross (which was cited approvingly by the Court in El Khoun at [46]) was careful to carve out such questions by preserving the Court's decision in Pallas Newco. Ground 3 also raises a conventional judicial review question concerning the construction of a definition, which is a question of law. 12. Ground 4 (FSR) raises the issue whether the proposed development exceeded the allowable GFA, thus contravening cl 4.4 of the WLEP. The allowable GFA was 1,982.5m2 and the plans before the Panel (Drawing DA 28 Rev D) stated that the actual GFA was 1,978.5m2, a margin of 4m2. However, those plans before the Panel depicted an area on each of Levels 1, 2 and 3 of the proposed development described as an "Open Courtyard", which on the face of the plans did not meet the definition of a "terrace or balcony" in subparagraph (i) of the definition of GFA in the Dictionary to the WLEP because they were enclosed on all sides by either walls or windows If those areas were included in the calculation of GFA‑ as they should have been ‑ then the proposed development plainly exceeded the allowable GFA, because on the face of the plans the total area of the denoted "Open Courtyards" were greater than 4m2. Therefore, on the material before the Panel, the Panel acting reasonably ought to have formed the view that the proposed development exceeded the allowable GFA, but failed to do so. The establishment of that fact did not depend on any evidence which was not before the Panel. That Is the critical distinction between the facts of this case and the facts of El Khouri. 13. In addition in relation to Ground 4, apart from the areas above which can be calculated from the plans before the Panel (the subject plans) each at 13.0m2 (total 39m2) there are a number of other areas shown on the subject plans which are part of the GFA which can be ascertained and calculated from those plans and which result in an exceedance of the maximum GFA of at least 113.7m2 and on the Applicant's case of 168.7m2 (see Applicant's supplementary submissions on Ground 4 and GFA 12 December 2022). The measurement of the area can be made off the subject plans without expert evidence. It was only a matter of convenience that the surveyors calculated the areas in the proceedings. The surveyors were merely making calculations based on what was before the Panel. 14. The Applicant's submission on Ground 4 based on conventional judicial review grounds is that the Panel could not have reasonably reached any different conclusion than that the maximum GFA was exceeded from themselves having examined the subject plans. The surveyors' evidence is admissible to show what a Panel acting reasonably would have determined (see Preston CJ in Muswellbrook Shire Council v Hunter Valley Energy Coal Ply Ltd [2017] NSWLEC 184 at [26], [43] and Caldera Environment Centre Inc v Tweed Shire Council (1993] NSWLEC 102 at [10], points 1, 2 and 5). 15. Ordinarily a mere error of fact (where not jurisdictional) is not judicially reviewable. Where however the reasoning process is not explained, but the result is unreasonable or irrational, a legal error may be inferred without precisely identifying it. That is the gravamen of the famous statement by Sir Owen Dixon in Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353 at 360, and this case is a classic example of his approach: [The Commissioner's] decision, it is true, is not unexaminable. If he does not address himself to the question which the sub‑section formulates, if his conclusion is affected by some mistake of law, if he takes some extraneous reason into consideration or excludes from consideration some factor which should affect his determination, on any of these grounds his conclusion is liable to review. Moreover, the fact that he has not made known the reasons why he was not satisfied will not prevent the review of his decision The conclusion he has reached may on a full consideration of the material that was before him be found to be capable of explanation only on the ground of some such misconception. If the result appears to be unreasonable on the supposition that he addressed himself to the right question, correctly applied the rules of law and took into account all the relevant considerations and no irrelevant considerations, then it may be a proper inference that it is a false supposition. It Is not necessary that you should be sure of the precise particular in which he has gone wrong. It Is enough that you can see that in some way he must have failed in the discharge of his exact function according to law." 16. Ground 5 (Failure to consider contamination under SEPP 55 cl 7(1)) is a failure to consider ground, which is conventional judicial review. As previously submitted, AS (41] could also be characterised as a constructive failure to exercise jurisdiction because of the absence of information in the report on which the Panel relied concerning contamination and the incorrect assumption in the report that the development did not involve excavation and therefore contamination was irrelevant (which was legally as well as factually flawed). 17. Ground 6 (Failure to provide and consider a preliminary investigation report) also involves a failure to consider ground, namely that the Panel failed to consider a report specifying the findings of a preliminary investigation of the land for contamination, in circumstances where no reasons were provided for the Panel's implicit decision not to consider such a report. The Panel failed to consider those matters despite the evidence before the Panel establishing that cl. 7(2) was triggered. 18. Finally, we respectfully submit that the decision in El Khouri was plainly wrong in concluding that planning instruments had no force in themselves because nothing in the EPA Act gave them force, as it overlooked the provisions of the Act that lend force to planning instruments otherwise than as s 4.15 factors for consideration, and the binding authority of Hillpalm Pty Ltd v Heavens Door Pty Ltd (2004) 220 CLR 472, which emphasised the pivotal provision of former s 76A which required compliance with the provisions of planning instruments in carrying out development (at [37],[38],[41]), a point with which Kirby J in the minority agreed: [88). Without such compliance, development was unlawful and penalised. Equally, an EPI Is deemed to be the Act for the purposes of enforcement, so that a breach of the instrument is a breach of the Act. The instrument is therefore picked up and applied by the Act. and a breach (including a failure to comply) or threatened breach opens the wide remedial palette available for enforcement ‑ and judicial review. These are also proceedings for enforcement. as the grant of consent was allegedly unlawful as in breach of the Act. 19 El Khouri did not cite Hillpalm, the leading case on the construction of these provisions of the EPA Act (albeit dealing with the enforcement of a condition of consent rather than an instrument, but the High Court dealt with the two without distinction in its commentary on former s 76A). It was therefore decided per incuriam.

The Applicant's general complaint concerning El Khouri

1. It is to be noted that, in paragraph (19) above of the written submissions on behalf of the Applicant concerning the Court of Appeal's decision in El Khouri, it was proposed that this decision had been reached per incuriam.
2. A decision correctly characterised as having been reached per incuriam is one reached (as defined by the Oxford Australian Dictionary (3rd ed) as: Through carelessness. In later use specifically (with reference to judicial decisions) through lack of regard to the facts of the law or of a legal case.
3. The correct position is that, unless subsequently set aside by a further decision of the Court of Appeal or overruled by a decision of the High Court, I am bound by the decision in El Khouri to the extent that I consider it applicable to the matters I am required to address and determine arising from each of the grounds advanced on behalf of the Applicant in these proceedings.
4. It will, therefore, be necessary for me to consider of each of the grounds by addressing the potential relevance of the decision of the Court of Appeal in El Khouri to that ground. Although, as can be seen from paragraphs (4) to (6) of the Company's submissions earlier reproduced concerning the decision in El Khouri that proper application of it requires, effectively, automatic rejection of each of these grounds, it is not appropriate to adopt, at this point, such a global finding.

A general matter noted in the Council's assessment report

1. Attachment 3 to the assessing officer's report addresses the matters raised in the 11 submissions that were received by the Council in response to the public commentary period. The analysis of these submissions was set out in Exhibit A, Tab 11, Folios 186 to 195. The general matter appropriate to be noted concerning the assessing officer's commentary concerning these public submissions is that which is set out in the introduction before turning to matters of detail in the submissions. The introduction says (Folio 186): The submissions relate to the original proposal. As a result of issues raised in these submissions, Council's own planning assessment and following the letter from Council dated 23 February 2021, the proposal has been amended to expand the business premises at ground level, with access both from Sailors Bay Road and Harden Avenue, and address some other issues, including relocation of the OSD, leading to reconfiguration of the ground floor and revision of the supporting documentation.

The exercise of discretion - s 9.46(1) of the EPA Act

1. It is appropriate that I set out, at this point, some general matters relating to the potential exercise of discretion if I was to decide (as I have done with respect to Grounds 2, 5 and 6) that the question of whether or not I should grant any relief with respect to any grounds arises for consideration. In this context, it is appropriate to repeat the terms of the provision in the EPA Act that vests me with discretion to consider what relief - if any - should be granted if any of the Applicant's grounds are made out. The provision is s9.46(1) and it is in the following terms: 9.46 Orders of the Court 1) Where the Court is satisfied that a breach of this Act has been committed or that a breach of this Act will, unless restrained by order of the Court, be committed, it may make such order as it thinks fit to remedy or restrain the breach.
2. The discretion to grant or to withhold relief in relation to any breaches of the EPA Act, is itself a legitimate and integral part of the statutory scheme under that Act (see Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335 at 342 - Sedevcic).
3. At this point, it is appropriate to set out those of the guidelines in Sedevcic which I consider may later need to address with respect to any of the grounds pressed by the Applicant in his Further Amended Summons where those grounds are made out (or the circumstances giving rise to those grounds are appropriate to be addressed on the assumption that they are made out - without the necessity to determine if they are). The relevant principles - omitting irrelevant elements - are in the following terms (Sedevcic at pages 339 to 341): Guidelines for the exercise of discretion A number of guidelines may usefully be stated as applicable to the exercise of the Court's discretion in a case such as the present: 1. The discretionary power conferred on the Court by s 124 of the Act is wide. Relevantly to the present case, it is as wide as the discretion enjoyed by the Supreme Court in its equitable jurisdiction: Attorney-General and Down County Council v Newry No 1 Rural District Council [1933] NI 50 and Associated Minerals Consolidated Ltd v Wyong Shire Council [1974] 2 NSWLR 681 at 692. 2. It is undesirable to endeavour, by drawing upon decisions in differing fact situations which have presented in earlier cases, to attempt to catalogue or classify all of the circumstances which will enliven the exercise of the discretion in cases yet to come. By the statute, the discretion is not fettered. It is not limited either to particular classes of case or to limited or special cases: Blacktown Municipal Council v Friend (1974) 29 LGRA 192 at 197. Nonetheless, keeping that salutory warning in mind, it can be instructive, and helpful in the achievement of the generally consistent application of the law (which the creation of a specialist Land and Environment Court facilitates) to consider the variety of circumstances in which the discretion conferred by the section has been exercised. …... 3. … 4. In exercising the discretion, it must be kept in mind that the restraint sought is not, in its nature, the enforcement of a private right, whether in equity or otherwise. It is the enforcement of a public duty imposed by or under an Act of Parliament, by which Parliament has expressed itself on the public interest which exists in the orderly development and use of the environment. Attorney-General v BP (Australia) Ltd (1964) 83 WN (Pt 1) (NSW) 80 at 87; 12 LGRA 209 at 218. Because s 123 of the Act permits any person (and not just the Attorney-General or a person with a sufficient interest), to bring proceedings in the Court for an order to remedy or restrain a breach of the Act, there is indicated a legislative purpose of upholding, in the normal case, the integrated and co-ordinated nature of planning law. Unless this is done, equal justice may not be secured. Private advantage may be won by a particular individual which others cannot enjoy. Damage may be done to the environment which it is the purpose of the orderly enforcement of environmental law to avoid: cf Attorney-General v Harris [1961] 1 QB 74 at 94; Trimboli v Penrith City Council (1981) 48 LGRA 323 and Deane J (dissenting) in Lizzio v Ryde Municipal Council (1983) 155 CLR 211. 5. It is only in this sense that "special" circumstances need to be established to secure a favourable exercise of the discretion provided by s 124. There is nothing in the Act by which the discretion is fettered or limited to "special cases", as Mahoney J, as he then was, pointed out in analogous circumstances in Blacktown Municipal Council v Friend (at 197). But the obvious intention of the Act is that, normally, those concerned in development and use of the environment will comply with the terms of the legislation. Otherwise, if unlawful exceptions and exemptions became a frequent occurrence, condoned by the exercise of the discretion under s 124, the equal and orderly enforcement of the Act could be undermined. A sense of inequity could then be felt by those who complied with the requirements of the Act or who failed to secure the favourable exercise of the discretion under s 124. 6. Where the application for the enforcement of the Act is made by the Attorney-General, or a council, a court may be less likely to deny equitable relief than it would in litigation between private citizens: Associated Minerals Consolidated Ltd v Wyong Shire Council (at 692). This is because the Attorney-General or the Council are seen as the proper guardians of public rights. Their interest is deemed to be protective and beneficial, not private or pecuniary: cf Rowley v New South Wales Leather Trading Co Pty Ltd v Woollahra Municipal Council (1980) 46 LGRA 250. Of course, as the development or administrative law demonstrates, administrators who advise the Attorney-General or councils can sometimes act from motives which are less disinterested. Courts will be alert to insensitive, unthinking administration in this as in other fields of law. 7. Where the relief is sought against a "static" development (ie the erection of a building) which, once having occurred can only be remedied at great cost or inconvenience, the discretion may, in the normal case, be more readily exercised than where what is involved is a continuing breach by conduct which could quite easily be modified to bring it into compliance with the law: see Blacktown Municipal Council v Friend (at 197). But this observation is simply a reflection of the judicial perception in balancing, on the one hand, the public interest in equal compliance with the law and, on the other, the degree of irremediability occasioned by the breach and the expense or inconvenience which would follow the law's enforcement: cf Associated Minerals case (at 692). It does not amount to a hard and fast exception to the discretion. That discretion must be exercised in every case in which it is invoked. Nor is it a reason to refuse relief where no "static" development can be proved. 8. The wide discretion has been described as "an adequate safeguard against abuse of a salutary procedure": see Menzies J in Cooney v Ku-ring-gai Municipal Council (1964) 114 CLR 582 at 605; (1963) 9 LGRA 290 at 306. It permits the court to soften, according to the justice of particular circumstances, the application of rules which, though right in the general, may produce an unjust result in the particular case. …………... 9. On appeal to this Court, due regard will be had to the exercise by a judge of the Land and Environment Court of his discretion to decline or grant an injunction. This is not only because of the well-known principles which restrain the interference of appellate courts in the exercise of a discretion committed by law to trial judges. Nor is it so simply to avoid the burden of primary decision-making which would result from too ready an interference in the exercise or such discretions. Restraint is also called for because Parliament has established a specialist court, with a large measure of exclusive jurisdiction. That Court necessarily superintendends the application of the legislation in its jurisdiction having regard to the merits of particular cases and, as well, the way individual decisions operate to achieve a consistent and a principled application of that legislation.
4. In Liverpool City Council v Roads & Traffic Authority & Interlink Roads Pty Ltd (1991) 74 LGRA 265, Cripps CJ addressed the approach for this Court in addressing matters of discretion in cases such as this. Two extracts are appropriate to reproduce as relevant in these proceedings. The first is from pages 277 and 278: In Associated Minerals Consolidated Ltd v Wyong Shire Council [1974] 2 NSWLR 681 it was said that the court may be less likely to deny relief to a council than it would in litigation between private citizens with respect to breaches of the planning law as it was before 1979. The source of the court's discretion with respect to breaches of the Environmental Planning and Assessment (Amendment) Act 1989 (NSW) is s 124 of that Act. In F Hannan Pty Ltd v Electricity Commission of New South Wales (No 3) (1985) 66 LGRA 306, Street CJ said: "The width and powers of the jurisdiction of the Land and Environment Court is apparent from the legislative provisions that I have mentioned. These need no elaboration. Likewise it is apparent that the Court enjoys a wide discretionary range within which to consider the formulation of orders or remedy to restrain breaches of the planning legislation. It by no means follows that the mere demonstration of a right that a party would be entitled to expect to have enforced by the ordinary civil courts will be afforded equivalent enforcement by the Land and Environment Court. It is the duty of the court, in formulating 'such order as it thinks fit', to have regard at all times to the pursuit of the objects of the Environmental Planning and Assessment Act as set out in s 5. This involves, in appropriate cases, the valuation of matters extending beyond the mere determination of the rights and matters in dispute between the immediate parties. It involves due weight being given to the public interest and the interests of other affected persons in the overall context of the pursuit of the objects broadly set out in s 5".
5. His Honour later said, at 280: The court would ordinarily not make an order forcing a determining authority to take remedial steps merely to "teach it a lesson". To do so would be to punish without, at the same time, serving any of the evident objectives of Pt V of the legislation. It is accepted, I think, that the court would require a strong case to be made out for it to accede to the argument that it would be futile to make an order in the face of a serious breach. Nonetheless, where an order would serve no practical usefulness to order a determining authority to "go-through-the-motions" runs the risk of undermining the integrity of the whole system.
6. I will later need to consider Grounds 2, 5 and 6 through the conceptual lens revealed above.

The Applicant's submission objecting to the Company's proposal

1. Annexure A to the Applicant's 20 October 2022 affidavit was a letter addressed to the General Manager of the Council. It commences by describing the Applicant's position as managing director of two companies which owned several apartments and ground floor retail and other commercial premises in two buildings (the first being immediately adjacent to the site and the second being that immediately to the east of that adjacent building).
2. The objection set out, in summary, what was said to be the adverse impacts of the Company's proposed development on four apartments in the immediately adjacent building to the east. It is not necessary to set out the detail of those asserted impacts. It is sufficient to note that they encompassed view and amenity impacts (detailed with respect to three of the four nominated apartments in the building immediately to the east of the site).
3. The Applicant's letter objection also included the following passage: Impact on the retail and other commercial premises in Castlegardens, Castlenorth and other similar and future premises in Sailors Bay Road to the east of Northbridge Plaza: while it is appropriate to add business premises on ground level, the DA proposes a small area only at the front of the building, a token gesture. The car parking on ground level facing Harden Avenue does not fit in with the concept of street activation. The stakeholders of the commercial tenancies at ground level east of the Northbridge Plaza will suffer irreparable damage if the Proposed DA is allowed to proceed without. Compliance with clause 6.7 in the LEP is mandatory.
4. After setting out a short conclusory summary concerning the impacts said to arise for residents of apartments immediately to the east of the site, the submission concluded with the following observation: Non-compliance with clause 6.7 in the LEP makes the proposed development prohibited.
5. In the context of the grounds pleaded by the Applicant in his Further Amended Summons, it is to be noted that the inference to be drawn with respect to the complaints of amenity and view impacts on the nominated apartments in the building to the east are complaints of matters relating to Ground 1.
6. The specific reference to non-compliance with clause 6.7 of the LEP is a clear and explicit complaint relating to matters pleaded in support of Ground 2 in the Further Amended Summons.
7. However, there is in the Applicant's letter of objection to the Council, even at the broadest potential level of inference, nothing that could be regarded as relating to matters pleaded in Grounds 3, 4, 5 or 6 of the Applicant's Further Amended Summons. The absence of complaint concerning the matters pleaded in support of these four grounds is a fact, potentially bearing on my determinations should issues of discretionary relief arise for consideration relating to any of these grounds.

Introduction

1. Ground 1 was particularised in the Further Amended Summons in the following terms: 1 The applicant for development consent is the Second Respondent. 2 Under cl 4.3 of the Willoughby Local Environmental Plan (the LEP), the height control for the subject land was 14m (the height control). The DA was for a building of 18.08m, an exceedance of 29.14%, and therefore a contravention of the height control. 3 In or about September 2020, the Second Respondent made a written request under cl 4.6(3) of the LEP seeking to justify the contravention of the height control (the request). 4 Before deciding to grant consent, the First Respondent expressed its satisfaction that the request had adequately addressed the matters required to be addressed under cl 4.6(3) and that the development was in the public interest because it is consistent with the objectives of cl 4.3 and the B2 Local Centre zone (the 4.6 decision). 5 The First Respondent's reasons for doing so were the reasons in the Council's Assessment Report, specifically: a. it supported, subject to conditions, the request; b. the proposed building had architectural merit compared with the existing; c. subject to conditions, the proposal was consistent with the objectives of cl 4.3 and the zone d. subject to conditions, the proposal is of a similar scale and bulk to a previously approved building for the subject land. 6 The decision to grant consent was then made on conditions including condition 2 that required the proposed building to be amended to maintain views from, preserve amenity including privacy of and minimise nuisance from artificial lighting to the neighbouring property at 135‑145 Sailors Bay Road. The amendments included redesigning proposed level 4 by deleting 51m2 of gross floor area and relocating a balcony. 7 None of the amendments required by condition 2 were incorporated in the DA when the First Respondent considered and determined the request by expressing its conditional satisfaction. 8 The 4.6 decision was invalid because: a. it took into account irrelevant matters in determining that the contravention of the height standard was justified: i. the merits of the DA; ii. it was a better design than an earlier approved but not erected building; b. instead of considering the DA before it, it determined that the contravention was justified if a different building was erected that complied with condition 2 of the consent; c. it made its decision to support the request, on conditions, whereas there was no power to make a conditional decision under cl 4.6(3); d. it made its decision that the DA complied with the objectives of cl 4.3 and the zone subject to conditions, whereas there was no power to make a conditional decision; e. it had decided that, without the amendments effected by condition 2 of the consent, the contravention was not justified, and it was obliged to give effect to that decision by rejecting the request and refusing consent.
2. I have earlier noted that the Company's DA was accompanied by a request pursuant to cl 4.6 of the LEP seeking dispensation from compliance with the height of buildings limitation that would otherwise have applied to development on the site. The relevant provision in the LEP which, in association with the appropriate sheet of the LEP's Height of Buildings Map, sets the maximum permissible building height for the site as 14 metres.
3. The height of buildings clause in the LEP, cl 4.3, is in the following terms: 4.3 Height of buildings (1) The objectives of this clause are as follows - (a) to ensure that new development is in harmony with the bulk and scale of surrounding buildings and the streetscape, (b) to minimise the impacts of new development on adjoining or nearby properties from disruption of views, loss of privacy, overshadowing or visual intrusion, (c) to ensure a high visual quality of the development when viewed from adjoining properties, the street, waterways, public reserves or foreshores, (d) to minimise disruption to existing views or to achieve reasonable view sharing from adjacent developments or from public open spaces with the height and bulk of the development, (e) to set upper limits for the height of buildings that are consistent with the redevelopment potential of the relevant land given other development restrictions, such as floor space and landscaping, (f) to use maximum height limits to assist in responding to the current and desired future character of the locality, (g) to reinforce the primary character and land use of the city centre of Chatswood with the area west of the North Shore Rail Line, being the commercial office core of Chatswood, and the area east of the North Shore Rail Line, being the retail shopping core of Chatswood, (h) to achieve transitions in building scale from higher intensity business and retail centres to surrounding residential areas. (2) The height of a building on any land is not to exceed the maximum height shown for the land on the Height of Buildings Map.
4. For the purposes of the Company's (now approved but challenged) development, the Company submitted a cl 4.6 request seeking to be permitted to exceed this height limit, with the maximum overall height of the building to be above that set by the development standard but with, for the application that went to the Planning Panel for determination, a general proposed breach of the maximum height across the entire additional upper level on the site.
5. A plan depicting the extent of the breach of the Height of Building Development Standard proposed in the Company's original DA is in evidence. A copy of that plan revealed an area shaded in pink at the upper level showing the exceedances of the development standard set by cl 4.3 for which the Company had sought approval via the mechanism of its request for dispensation made pursuant to cl 4.6 of the LEP.
6. A provision of the EPA Act, s 4.16, is also relevant for consideration of this ground. The relevant elements of the section are in the following terms: 4.16 Determination (1) General A consent authority is to determine a development application by - (a) granting consent to the application, either unconditionally or subject to conditions, or (b) refusing consent to the application. (2) … (3) … (4) Total or partial consent A development consent may be granted - (a) for the development for which the consent is sought, or (b) for that development, except for a specified part or aspect of that development, or (c) for a specified part or aspect of that development. (5)‑(12) …

The Council's Assessment Report

1. Notification of the DA commenced from 26 October 2020 until 16 November 2020. Submissions were received on behalf of 11 households (the submission on behalf of Owners Corporation Stata Plan 53342 at 135‑145 Sailors Bay Road counted as one submission). Some of the issues raised by the objectors were that the cl 4.6 request was not "well founded" and that it "did not address the applicable statutory considerations".
2. In response to these issues, and on behalf of the First Respondent, the Council's assessing officer claims that the works relating to the approved Level 4 under the previous DA 2014/241 had already substantially commenced upon the obtainment of a Construction Certificate. In the Council's assessing officer's view, comparison between the built form of the current application and the (previously) approved DA 2014/241 was justified because the current proposed height is similar to that of the previously approved application and that of the adjoining buildings.
3. It is appropriate to reproduce the objectives of cl 4.6 of the LEP and the Council's assessing officer's comments in response to the objectives contained in subcll 4.6(2), (3) and (4). Attachment 5 of the Council's Assessment Report (between pages 206 and 207 of Exhibit A) provides a summary in the following table: Cl 4.6 Criteria Response 4.6(2) The development standard is not expressly excluded from the operation of this clause. In this case, development consent may be granted even though the development contravenes the development standard imposed by the environmental planning instrument. Development consent may, subject to this clause, be granted for development even though the development would contravene a development standard imposed by this or any other environmental planning instrument. However, this clause does not apply to a development standard that is expressly excluded from the operation of this clause. 4.6(3) Development consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating - (a) The Applicant's written request has demonstrated that the objectives of the development standard, subject to conditions, are generally achieved, notwithstanding the non‑compliance with the development standard. that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case; and In doing so, the Applicant's written request has adequately demonstrated that the compliance with the development standard is unreasonable and unnecessary in the circumstances of this case. The Applicant's written request has adequately demonstrated that there are sufficient environmental planning grounds to justify contravening the development standard. The applicant argues that the proposal: • is consistent with the objectives of the height standards and consistent with the objectives of the subject B2 zoning. • is consistent with the provisions of the Willoughby Local Centres Strategy to 2036. (b) • is consistent with the existing and future context. There are other precedents within the Northbridge Town Centre and B2 Local Centre zone: that there are sufficient environmental planning grounds to justify contravening the development standard. ▫ Adjoining to the east, 135‑145 Sailors Bay Road is a 5‑storey mixed‑use development with an overall building height of 20.3m, 6.3m above the 14m height control. ▫ Further east, the adjoining 6‑storey mixed use development at 147‑151 Sailors Bay Road has the roof height of 18.88m, 4.88m over the height limit and a maximum height of 20.23m, 6.23m above the 14m height control. ▫ 29 Baringa Road is 3.1m above height control. • Achieves "better outcomes for and from development by allowing flexibility in particular circumstances" and a public benefit is achieved in allowing the variation. Therefore council is satisfied that the Applicant's written request has adequately addressed the matters required to be demonstrated by cl 4.6 (3). 4.6(4) Development consent must not be granted for development that contravenes a development standard unless the consent authority is satisfied that - (a)(i) The Applicant's written request has adequately demonstrated that compliance with the standard is unreasonable or unnecessary in the circumstances of the case, and that there are sufficient environmental planning grounds to justify the non‑compliance. the Applicant's written request has adequately addressed the matters required to be demonstrated by subclause (3), and (a)(ii) Yes. the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out

1. It is necessary to note, in further detail, the Council's assessing officer's response as to whether the proposed development is in the public interest, because it is consistent with the objectives of the particular standard, and whether the objectives for development within the zone in which the development is proposed to be carried out have been addressed.
2. The Council's assessing officer was satisfied that the current proposal achieves, and is consistent with, the zoning and height objectives under the LEP. Referring to the objective contained in cl 4.3(1)(a) of the LEP - "to ensure that new development is in harmony with the bulk and scale of surrounding buildings and the streetscape" ‑ the assessing officer noted that the directly adjoining building in the B2 Local Centre was of the same height to the height proposed in the current DA. Further, it was observed by the assessing officer that the height of the proposal was lower when compared with other adjoining (and approved) buildings at 147‑151 Sailors Bay Road and 135‑145 Sailors Bay Road.
3. Other objectives proposed to have been achieved in the Council's assessing officer's view included consistency with the redevelopment potential of the land (cl 4.3(1)(e) of the LEP) and the minimisation of impacts arising from the new development in relation to privacy, view loss and overshadowing (cl 4.3(1)(b) of the LEP).
4. This was demonstrated, in the Company's submission, for three reasons. 1. First, buildings to the eastern margin of the B2 Local Centre exhibit similar heights to the height of the proposed development, and buildings to the western margin of the B2 Local Centre are anticipated to comprise six storeys (exceeding the height of the five‑storey mixed use development at 135‑145 Sailors Bay Road located in the eastern margin). A recently completed six‑storey mixed use development at 147‑151 Sailors Bay Road to the west of the zone provided cause for this anticipation. In this context, the Council's assessing officer was satisfied that the current proposal met the existing and desired future character of the B2 Local Centre in accordance with cl 4.6(1)(f) of the LEP. 2. Second, although the Council's assessing officer conceded that any new development was expected to impact adjacent properties, particularly views from the western windows of the adjoining 135‑145 Sailors Bay Road site, the Council was satisfied that Level 4 of the proposed development did not impede or disrupt solar access and views shared by neighbouring living rooms and private outdoor spaces so much as to justify the refusal of the cl 4.6 request. Relevantly, the Council's assessing officer stated that views and outlook from rear balconies would be maintained or even slightly enhanced due to the demolition of the northern stairwell and associated building parapet. 3. Third, the Council's assessing officer was satisfied that the proposal accords with the minimisation of impacts on overshadowing and privacy. These concerns were allayed by the observation that overshadowing mostly falls on Sailors Bay Road in mid‑winter, and that the north‑south primary orientation of the units, along with the adoption of fixed louvre screens, high‑level windows and translucent and opaque glass, effectively minimised any potential impacts to privacy that might arise from the development.
5. With respect to ensuring a high visual quality of the development when viewed from adjoining properties, the street, waterways, public reserves, or foreshores (cl 4.6(1)(c) of the LEP), the Council's assessing officer was satisfied that not only was the proposal consistent with the existing character and scale of adjoining buildings, but that the design was contemporary and, adopting the view of the Urban Design Specialist for the Council, greatly improved the built form of the area.
6. The Company's submissions also addressed other relevant elements of how the Council's assessing officer had considered the Company's development proposal.
7. With respect to achieving transitions in building scale from higher intensity business and retail centres to surrounding residential areas (cl 4.6(1)(h) of the LEP), the Council's assessing officer formed the opinion that the existing amenity of the northern dwellings would be maintained because the proposal has similar setbacks to the existing building. The design included a six‑metre setback to the lane, with the exception of the Level 1 terrace which provided only a four‑metre setback to the balcony (but had a wide landscaped planter wrapping around the balcony). The new Level 4 was proposed to be setback 22‑metres from the lane to the wall, subject to conditions. The design also included solid balustrade balconies and planter boxes for privacy protection.
8. Having addressed the objectives of the LEP with respect to building height (but for objectives - cl 4.6(1)(d) and (g)), the Company also addressed the proposal's consistency with the objectives of the B2 Local Centre zone in the following table: Zone Objective Response To provide a range of retail, business, entertainment, and community uses that serve the needs of people who live in, work in and visit the local area. The proposal is consistent with these objectives as it provides for a mixed‑use development that will provide business floor space that will serve the needs of the local community, is in an accessible location that will maximise public transport use and will bring new workers and residents into the centre, thereby enhancing its vitality. The visual amenity of the centre will be greatly enhanced compared to the existing situation. To encourage employment opportunities in accessible locations. The existing building has a small office fronting Sailors Bay Road. The proposal appropriately includes business premises at ground floor, accessible from Sailors Bay Road and Harden Avenue, activating both streets, as expected from a shop‑top development. To maximise public transport patronage and encourage walking and cycling. The site is well located, close to public transport and the proposal includes 1 motorbike space, 2 bike lockers and 1 bike rack. To enhance the viability, vitality, and amenity of local centres. Pedestrian amenity is improved through the integration of an awning to Sailors Bay Road and wrapping around on Harden Avenue. The proposed development is generally consistent with the future provisions of the Willoughby Local Centres Strategy to 2036, offering the potential for increased street activation and amenity.

The Planning Panel's determination

1. Following consideration of the written request from the Company made pursuant to cl 4.6(3) of the LEP, the Planning Panel determined that compliance with cl 4.3 of the LEP was unreasonable or unnecessary in the circumstances. The Planning Panel formed the opinion that there WEre sufficient environmental planning grounds to justify contravention of the Height of Building Development Standard.
2. In their reasons for making this determination, the Planning Panel considered that, subject to conditions, the proposal WAs consistent with the objectives of the height standards and consistent with the objectives of the B2 Local Centre zoning.
3. The Planning Panel were satisfied that the proposal exhibits the desired future character of the locality outlined in the Willoughby Local Centres Strategy to 2036. View loss from the neighbouring properties, in the Planning Panel's opinion, had also been assessed and appropriately minimised by the imposition of conditions designed to limit the extent of the upper Level 4.
4. The following extract from the Planning Panel's reasons demonstrates how the proposal WAs amended by the imposition of such conditions: Prior to the issue of the Construction Certificate, the proposal is to be amended in the following manner: (a) In order to maintain views obtained from adjoining Apartment 31 at 135‑145 Sailors Bay Road, Apartment 402 at Level 4 shall be re‑designed to a smaller size in order to ensure that, with exception of the balcony, built spaces do not extend further than 22.75 metres from the rear boundary of the site. About 51m2 of gross floor area are expected to be deleted from the rear of Level 4. The size of Apartment 402 is expected to be a two‑bedroom apartment with media, or a three‑bedroom apartment or a two‑bedroom apartment with a larger living/dining area. The balcony associated with Apartment 402 shall remain of same size and proportion (or smaller) and be relocated to adjoin the smaller, re‑configured Apartment 402. This balcony shall not expand further towards east. The roof above this balcony shall extend over maximum half of the width of this balcony, with a similar shape to the one dotted on Level 4 plan. The eastern side of this balcony shall have a fixed permanent privacy screen made from opaque glass or having vertical, solid, angled blades preventing line of site into adjoining apartments at 135‑145 Sailors Bay Road. The privacy screen of the balcony shall be up to a maximum 1.5m high, when measured from the finished level of the balcony. With the exception of the balcony above, the remainder of the roof over the level 3 below (from northern edge of the building up to 22.75‑metres from rear boundary of the site) shall be marked on plans to be Non‑Trafficable Roof. (b) In order to preserve the amenity of units located at 135‑145 Sailors Bay Road, all windows located on the residential levels on the eastern elevation shall be constructed of translucent glazing and maintained as such throughout the lifetime of the building. All privacy screens located on the eastern elevation are to be fixed and built in such a manner to prevent lines of sight into adjoining apartments at 135‑145 Sailors Bay Road. (c) Artificial lighting in the courtyards and lobby areas should be oriented in such a manner to ensure minimal nuisance for adjoining properties. Artificial lighting in these areas should automatically turn off when no person is present in these common spaces. (d) No encroachments outside the subject site are permitted for Level 2, except for planter boxes and the concrete slab without planter boxes as shown on the Level 4 plan. All encroachments are subject to entering a Deed, as per the Conditions of this consent. Details of these amendments are required to be approved by the Certifier and shown on the Construction Certificate Plans.

The Applicant's position

1. The basis of Ground 1 advanced by the Applicant can be sufficiently understood from the Applicant's written submissions on this point (although Mr Robertson addressed them orally, the written submissions provide a sufficient basis to understand the approach adopted by the Applicant to this ground).
2. The first ground of challenge advanced by Mr Robertson SC was that the development the subject of the development consent was proposed in contravention of the applicable height standard under cl 4.3 of the LEP. He submitted, at paragraphs 19 and 20 of his written submissions: 19. Under cl 4.3 of the WLEP 2012, the maximum building height is 14 metres. 20. The proposed addition of a floor to the existing building results in a significant exceedance of the height control. cl 4.6 of the WLEP 2012 was therefore necessary to waive the application of the development standard. cl 4.6 is a jurisdictional precondition. Consent cannot be granted unless subclauses (3) and (4) have been satisfied. Subclause (4)(a)(ii) specifically provides that consent must not be granted for development contravening a development standard unless: "the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out".
3. Mr Robertson raised this point further. He advanced, at paragraph 22 of his written submissions: 22. The reference to "the proposed development" in subclause 4.6(4)(a)(ii) focuses attention upon the development application and requires consideration of that proposed development. Moreover, as a jurisdictional precondition, the development must satisfy the requirements for waiving the development standard before determination of the merits of the proposal, and of necessity before the grant of consent. As a consequence, in deciding whether subclause 4.6(4)(a)(ii) is satisfied, the consent authority cannot take into account proposed conditions of consent which may alter or change the proposed development. It would not be "the proposed development" any longer.
4. Mr Robertson addressed how the jurisdictional question ought to be determined in the present circumstances. He submitted, at paragraph 21 of his written submissions: 21. In determining a jurisdictional question, the consent authority must consider the application, that is, the information and the documents accompanying the application: see e.g., Upper Mooki Landcare v Shenhuan Watermark Coal (2016) 126 LGERA 40. Consideration of the proposed development is a fundamental element in determining the threshold question: see e.g., Allen Price & Scarratts Pty Ltd v Shoalhaven City Council [2021] NSWLEC 1362 at [150], [154]‑[157], [264]. The converse is that proposed conditions are irrelevant to determining a threshold question: see e.g., Ryan v Northern Regional Planning Panel (No 4) [2020] NSWLEC 55 at [144] (Ryan); Newcastle and Hunter Valley Speleological Society Inc v Upper Hunter Shire Council (2010) 210 LGERA 126 at [83] (Speleological Society). The inquiry must focus on the development "as it stood immediately prior to the determination": at Ryan at [144].
5. Mr Robertson addressed the proposed conditions of consent. He submitted, at paragraph 24 of his written submissions: 24. [C]ondition 2 proposed amendments to the development to: (a) redesign apartment 402 at Level 4 to maintain views obtained from adjoining Apartment 31 at 135‑145 Sailors Bay Road; (b) redesign windows and privacy screens on the eastern elevation of the development to preserve the amenity of the units located at 135‑145 Sailors Bay Road; (c) orientation of artificial lighting in the courtyards and lobby areas of the development to ensure minimal nuisance for adjoining property; and (d) require that there are no encroachments outside the subject site for Level 2 and above of the development.
6. Mr Robertson did not dispute that these conditions related principally to the objectives set out in subsections (b), (c) and (d) of cl 4.3(1) of the LEP. Instead, he submitted that the Planning Panel (and, therefore, the Council) had only considered the proposed development as modified by conditions of consent. He advanced, at paragraph 27 of his written submissions, the following proposition: 27. The Panel made it clear in its reasons for decision that it adopted the reasons in Council's Assessment Report, specifically that the cl 4.6 exception should be supported "subject to conditions", which related to changes to the proposed development. Those changes were never made prior to the grant of development consent but would be effected after consent by complying with condition 2. The Panel has therefore asked itself the wrong question. Instead of considering the proposed development, it has considered a development as modified by conditions of consent.
7. In this context, Mr Robertson suggested that the Planning Panel was bound to refuse the DA. He proposed, at paragraph 30 of his written submissions: 30. Implicitly, without those modifications the Panel found that the proposed development would not have been consistent with the objectives of the height standard in cl 4.3 of the WLEP 2012, which are detailed and particular. In that case, it was bound to refuse consent.

The Company's position

1. The Company's position on this ground commenced by addressing the Council's assessment report that was submitted to the Planning Panel. The Council's Assessment Report was required to be referred to the Planning Panel for determination because the development the subject of the proposal would exceed the maximum height control pursuant to cl 4.3(2) of the LEP. Mr Galasso took me through elements of Exhibit A, the Council's Assessment Report to the Planning Panel. Specifically, he summarised the reasons contained in the report that he submitted adequately addressed cl 4.6 (Transcript 3 November 2022, page 164, lines 4 to 32): The chapeau to cl 4.6(3) is set out as the contiguous box across the page, and then the elements of 4.6(3) are set out individually. Firstly, has the applicant's submission demonstrated that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case? Response: it has demonstrated that the objectives of the standard, subject to conditions, are generally achieved notwithstanding the non‑compliance with the development standard. In doing so, the applicant's request has adequately demonstrated that compliance with the development standard is unreasonable and unnecessary in the circumstances of the case. Has the applicant's submission demonstrated there are sufficient environmental planning grounds. It has adequately demonstrated there are sufficient environmental planning grounds. The arguments are, it's consistent with the objectives, consistent with the provision of the local (not transcribable) strategy, consistent with the context, et cetera. Therefore ‑ this is at the top of [Tab 12] [Folio] 207 ‑ counsel is satisfied the applicant's written request has adequately addressed the matters: "Development consent must not be granted for development that contravenes a development standard unless: (a) one, adequately addressed the matters ‑ it has adequately addressed the matters; (b) two, is the proposed development in the public interest, because it's consistent with the objectives of the standard and the objectives of development in the zone ‑ yes, see assessment below". So, by this point in time, the view is formed that the written request is sufficient in terms of the matters that are required under 4.6(3).
2. Mr Galasso drew my attention to a number of principles that he proposed were relevant in construing the adequacy of the Planning Panel's reasons. He submitted, at paragraph 21 of his written submissions: 21. When construing the Panel's reasoning the Court should not read the Panel's reasons with an eye finely tuned for error: Minister for Immigration and Ethnic Affairs v Wu Shang Liang (1996) 185 CLR 259 (Wu Shang Liang) at 272. This principle recognises "the reality that the reasons of an administrative decision‑maker are meant to inform and not to be scrutinised upon over‑zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed": Wu Shang Liang at 272. The Court is not concerned with "looseness" in language or "unhappy phrasing": see, Collector of Customs v Pressure Tankers Pty Ltd and Pozzolanic Enterprise Pty Ltd (1993) 115 ALR 1, 9 cited with approval in Wu Shang Liang at 272. The reasons under challenge must be read as a whole and considered fairly.
3. Mr Galasso also addressed me on the assessment of the relevant objectives contained in the Council's Assessment Report. On the question of consistency with the objectives of the Height of Building Development Standard, he submitted (Transcript 3 November 2022, page 164, lines 32 to 41): For consistency with the objectives of the Height of Building Development Standard, this is that second part that I noted for your Honour under cl 4.6(a) ‑ this is dealing with (ii), not (i). This is done. "Consistency of proposed development with the height of building objectives is discussed below". The first standard is set out, and the response is an assessment by the consent authority ‑ by the assessing officer but embraced by the consent authority ‑ that is independent of the cl 4.6 request. "Because" ‑ it is said ‑ "the existing streetscape is characterised by a mix of developments" ‑ et cetera, et cetera ‑ "the new level is not readily visible from the streetscape". This is an assessment against the objectives.
4. Mr Galasso submitted that the rest of the objectives, that is, the objectives contained in subcll 4.3(1)(b) to (h), were all required to be addressed for the satisfaction of cl 4.6(4)(a)(ii). It is appropriate to reproduce Mr Galasso's oral submissions regarding the remaining objectives (Transcript 3 November 2022, page 164, line 43 to page 165, line 29): Next, "To minimise" ‑ this is another of the objectives of the height of building standard. Just pausing there, if your Honour went back to cl 4.3 in the Willoughby LEP, we see that there are a number of them, that longer set of objectives for the height of building standard that one would see for a long time. But all of them need to be addressed in order to answer the 4.6.4(a)(ii) matter. "To minimise the impacts of new development on adjoining or nearby properties from disruption of views, loss of privacy, overshadowing, visual intrusion." This is where the condition gets engaged. The proposal is similar in height to the one approved in 2014. Notwithstanding this, extending to rear further than that in previous DA is not sufficiently justified. A view loss assessment is provided in attachment 7. "Subject to conditions to reduce the rear extension of level 4 to be approved by the previous consent, impact on views is assessed as acceptable." So this analysis, in fact, was done in the second part of the consideration of 4.6, not the written request component ‑ and I'll make good in a moment it doesn't matter anyway ‑ but rather, in that part of the assessment that's concerned with the consent authority, to use the words of 4.6.4(a)(ii), being satisfied that the proposed development ‑ not the written request, the proposed development ‑ will be in the public interest, because it's consistent with the objectives of the standard. The next objective is dealt with. The next objective is (c) to minimise disruption to existing views. Again, "The adjoining units are oriented mostly north southeast, and setback of level 4 replicates the western setback", et cetera. Bottom of the page; "The western views obtained from side windows will be affected by the addition of breaches of height control. Most of these views can be retained by limiting the rear extension of this new level. More details on the view assessment are provided in attachment 7; a condition of consent is recommended in this regard." And the rest of the objectives are dealt with. None of them relate to the imposition of the condition as specifically as what we saw, and then on 210, consistency with the objectives of the zone is dealt with, again, as is required by 4.6.4(a)(ii), and we would submit, nothing irregular about that.
5. Mr Galasso rejected Mr Robertson's proposition that proposed conditions should be considered irrelevant to determining a threshold or jurisdictional question. At paragraph 43 of his written submissions, Mr Galasso submitted both Ryan v Northern Regional Planning Panel (No 4) [2020] NSWLEC 55 and Newcastle and Hunter Valley Speleological Society Inc v Upper Shire Council (2010) 210 LGERA 126; [2010] NSWLEC 48 were to be distinguished from the present case: 42 … Ryan v Northern Regional Planning Panel (No 4) [2020] NSWLEC 55 (Ryan) at [144] and Newcastle and Hunter Valley Speleological Society Inc v Upper Shire Council (2010) 210 LGERA 126 (Speleological Society) at [83] are not authority for the proposition for which they are cited in AS [Applicant's Submissions] at [21], namely that a consent authority must not consider proposed conditions as part of its consideration under cl 4.6(1)(a)(ii). Both passages are concerned with the inquiry under s 78A(8)(b) of the EPA Act (as in force at the relevant time) regarding the circumstances in which a species impact statement (SIS) prepared in accordance with Div 2 of Pt 6 of the Threatened Species Conservation Act 1995 (NSW) (as in force at the relevant time) will be required. The "inquiry" to which Pain J was referring in Ryan at [144] is whether the development application (to use the words of s 78A) is in respect of "development on land… is, or is a part of, critical habitat or is likely to significantly affect threatened species, populations or ecological communities, or their habitats". Her Honour certainly was not referring to the inquiry required under cl 4.6 of the WLEP 2012. The Court would be led into error if it relied on quotes from Ryan that have been taken out of context, as the Applicant has done.
6. Similarly, Mr Galasso rejected the proposition advanced by Mr Robertson that the decision to grant consent should be set aside because it was infected with jurisdictional error. He submitted, at paragraph 19 of his written submissions: 19. The construction advanced by the Applicant is inconsistent with received principles of statutory construction and well‑established authority that a consent authority may consider the conditions to which a consent will be subject [to] when determining whether to grant consent: see, e.g., Bankstown City Council v Zraika [2016] NSWCA 51; NSWLR 159 (Zraika) at [96] and in KEPCO Bylong Australia Pty Ltd v Bylong Valley Protection Alliance Inc [2021] NSWCA 216; 250 LGERA 39 (KEPCO) at [29]. The Applicant's construction would have absurd effect that the consent authority could not consider the effects of what would actually be approved under a consent when determining whether the proposed development is in public interest. The Applicant's submissions consider cl 4.6(4)(a)(ii) out of context and in isolation from the broader statutory framework of which it forms part.
7. Mr Galasso turned my attention to the decision in Al Maha Pty Ltd v Hajun Investments Pty Ltd [2018] NSWCA 245 at [23] (Al Maha), where Basten JA found (with which Leeming JA agreed at [41]) that cl 4.6 "is not a gateway provision prior to public consultation or further assessment; it is a criterion for the ultimate grant of consent". With respect to their Honour's finding, Mr Galasso advanced, at paragraph 45 of his written submissions: 45. The Applicant's submission that a consent authority "cannot take into account proposed development which may alter or change the proposed development" in deciding whether subclause 4.6(4)(a)(ii) is satisfied is inconsistent with Al Maha at [23], Zraika at [96] and KEPCO at [29]. It would also seriously undermine the utility of cl 4.6(4)(a)(ii) for the reasons explained above. The Applicant does not even attempt to ground this submission in the language of cl 4.6(4)(a)(ii). It is also wrong for the Applicant to suggest that proposed conditions do not form part of a development application.
8. In this context, Mr Galasso rejected the proposition advanced by Mr Robertson that the Planning Panel had asked itself the wrong question in determining whether to grant the consent. He contended, at paragraph 46 of his written submissions: 46. [T]he inclusion of the expression "subject to conditions" reflects the reality that the Panel determined to grant development consent subject to conditions pursuant to s 4.16 of the EPA Act and the granting of development consent and the imposing of conditions are two aspects of the same function. The Applicant's submission that this somehow involved an error is contrary to the effect that is "artificial" to divorce the task of deciding whether consent should be granted from the task of deciding what conditions should be granted: Zraika at [96] and KEPCO at [26]. It did not "ask itself the wrong question" by taking into consideration the conditions to which the consent would be subject when determining whether to grant consent.
9. Mr Galasso suggested that the expression "proposed development" should be read within the context of both cl 4.6(4)(a)(ii) and the "forward‑looking" nature of the objectives contained in cl 4.3. He suggested, at paragraph 40 of his written submissions: 40. In the context of cl 4.6(4)(a)(ii) the expression "proposed development" refers to the development that may be carried out once the development application is approved. The subsection requires to be satisfied that the "proposed development will be in the public interest" (emphasis added). The use of the future tense directs the enquiry to the future state of affairs once the development the subject of the consent is carried out which necessarily calls for a consideration of the conditions to which the consent is subject. The forward‑looking nature of the enquiry is confirmed by the objectives of cl 4.3 which are concerned with the impact the development as approved will have: see, in particular, cl 4.3(1)(a), (b), (c), (d), (g) (although not relevant in this case) and (h). The objective in cl 4.6(1)(b) is also forward looking as it directs the enquiry toward the "outcomes for and from development" (emphasis added).
10. Mr Galasso advanced this point further in his written submissions, suggesting, at paragraph 41: 41. The Applicant's submission that "proposed development" should be construed as effectively referring to the details of the development proposed by the applicant for development consent without regard to the conditions to which the consent will be subject is an oversimplification that ignores the language and structure of the section as a whole, the statutory framework in which it appears and the apparent object and purpose of the section.
11. Mr Galasso also rejected the proposition that the Planning Panel had taken into account matters that were irrelevant as part of its reasons. He submitted, at paragraph 47 of his written submissions: 47. [T]he Applicant's submission at [28] that it was irrelevant for the Panel to consider "the merits of the DA" as part of its "reasons for the decision" is obviously wrong. It was also entitled to consider the fact that the proposal would result in a better outcome than what had been approved previously. It is relevant to the objective in cl 4.6(1)(b) and the public interest under 4.6(4)(a)(ii) of the WLEP 2012 and s 4.15(e) of the EPA Act.
12. Mr Galasso concluded his written submissions at paragraphs 49 and 50: 49. [T]here is no basis for finding that the Panel was not satisfied that the matters in cl 4.6(3)(a) and (b) had been demonstrated. The Reasons expressly state that the Panel considered "the matters listed in item 6" which include the WLEP 2012 and "submissions made in accordance with the [EPA Act or Regulations] and the "materials listed at item 7" which includes… the Assessment Report and the Written Request. The Reasons then expressly state that "Following consideration of a written request from the applicant, made under cl 4.6(3) of the Willoughby Local Environmental Plan 2012 (WLEP 2012) that has demonstrated that a) compliance with cl 4.3 (Height of Building) is unreasonable or unnecessary in the circumstances; and b) there are sufficient environmental planning grounds to justify contravening the development standard" (emphasis added). 50. The Panel [also] stated that it considered height issues as part of its consideration of the public submissions and stated that "concerns raised by the community have been adequately addressed in the Assessment Report".

The Applicant's reply

1. In reply to Mr Galasso, Mr Robertson challenged the validity of the reasons for consent as provided to the Planning Panel in the Council's Assessment Report. He submitted that the reasons alluded to by Mr Galasso were only words of a decision, that is, a decision that could not properly constitute reasons. He said (Transcript 3 November 2022, page 200, lines 28 to 33): [T]hese words were a decision. They're not reasons; they're not grounds; they're simply a decision. They're a statement, or a re‑statement, of 4.6(3) and (4). And to that extent, they represent a formulaic statement of ‑ simply of the decision that they had to make, or the matters they had to consider. It's not evidence of consideration. Formulaic statements like that are not ‑ do not substitute for consideration.

Consideration

1. There is no doubt that the Planning Panel turned its mind to consideration of the cl 4.6 height dispensation request that had been submitted with the Company's development application. In this context, it is to be noted that my general observations as to how reasons written by decision-making bodies such as here being considered as having been given by the Planning Panel are not to be examined with an eye attuned to error or with a fine-toothed comb. It is with that qualification as to how the Planning Panel's reasons are to be understood with respect to the height dispensation request, that I turn my consideration to the Applicant's complaint founded in Ground 1.
2. The position with making a determination as to whether or not a dispensation request made pursuant to cl 4.6 of the LEP should be sustained and the proposed breach of the relevant development standard approved is one where each of the gateway tests posed by the clause are required to be satisfied and thus opened to permit the dispensation request to be approved (RebelMH at [51]). In essence, a consent authority (here the Planning Panel) needed to be satisfied that the development with respect to which the dispensation request had been lodged adequately addressed and satisfied each of these matters.
3. In its determination that the cl 4.6 request for dispensation with compliance with cl 4.3 of the LEP which would otherwise have applied, the terms of the assessing officer's report and the Statement of Reasons provided by the Planning Panel for its conclusion was not founded on a strict application of the tests to, and assessment of, the entire development in the Company's DA as satisfying each of these mandatory tests and, thus warranting granting of the dispensation sought.
4. It is clear from the earlier set out extract from the Planning Panel's reasons that they were not satisfied that the dispensation request satisfied each of the mandated elements. This is self‑evidently obvious from the fact that the Planning Panel did not uphold the dispensation request with respect to the entire development proposal advanced by the Company for consideration by the Planning Panel. The Planning Panel clearly concluded that the dispensation requested was not capable of being granted to its full extent because the Company's proposed development did not satisfy the mandated requirements of cl 4.6 with respect to that element of the northern end portion of the Company's DA as submitted to the Planning Panel for determination.
5. I have earlier set out the terms of s 4.16 of the EPA Act. It is to be noted that this provision expressly permits, as part of the powers of a consent authority when determining a DA, that a consent authority may grant approval only to part of the development for which consent had been sought (s 4.16(4)(b)).
6. Although not expressly relied upon, in terms, by the Planning Panel in its determination, nor referred to expressly by the relevant element of the Council's Assessment Report when dealing with the cl 4.6 request seeking dispensation from compliance with the Height of Building Development Standard arising from cl 4.3 of the LEP, the necessary inference is that, by requiring the removal of portion of the northern end of the of the new level proposed to be added to the existing built form, this was the power that the Planning Panel had exercised.
7. The necessary inference arising from that is that the Planning Panel considered that the request for dispensation with compliance with the height standard was satisfied with respect to the various gateway tests set by cl 4.6 of the LEP but that this state of satisfaction only arose with respect to the element of the proposed building design that excluded the area at the northern end of the uppermost level.
8. In approving the Company's proposed development, but requiring, in the process, the removal of the northern element of the uppermost level, the Planning Panel can be properly understood to have considered the dispensation request and, in doing so, concluded that it was appropriate to grant the dispensation permitted by the LEP provision but also exercising the statutory power given by s 4.16(4)(b) of the EPA Act to approve only that part of the Company's proposed development for which it was appropriate, in the opinion of the Planning Panel, to grant approval on the merits.
9. The Planning Panel exercising its consent‑giving power in this fashion by utilising s 4.16(4)(b), for the purposes of determining the Company's cl 4.6 request to be permitted to breach the Height of Building Development Standard set by cl 4.3 of the LEP, is an entirely conventional exercise of the power of an approving body. As a consequence, this complaint by the Applicant is without foundation.
10. Ground 1 fails.

Introduction

1. Ground 2 was particularised in the Further Amended Summons in the following terms: 9 Both Sailors Bay Road and Harden Avenue are identified on the Active Street Frontage Map to the LEP as Active Street Frontages to the subject land. 10 The DA sought consent for both the erection of a building (alterations and additions, including a new level 4) and a change of use from office accommodation to residential accommodation and business premises. 11 Under cl 6.7(3), consent could not be granted to the erection of a building or a change of use of a building identified as having an active street frontage unless the First Respondent was satisfied that it will have an active street frontage after its erection or change of use. Under cl 6.7(5), a building has an active street frontage if all premises on the ground floor of the building facing the street are used for the purposes of business premises or retail premises. 12 The DA was for business premises on the ground floor facing Harden Avenue for about 25% of its frontage, with the remainder comprising hydraulic services and a car park with privacy screens facing Harden Avenue. Vehicular access was from Timms Lane at the rear. 13 By dint of cl 6.7(4) an active street frontage was not required for access for fire services and vehicular access, leaving about two thirds of the Harden Avenue frontage comprising a car park. 14 The First Respondent was satisfied under cl 6.3 that an active street frontage to Harden Avenue was to be provided because (adopting the reasons in Council's Assessment Report): a. the building had sufficient active street frontage to comply with cl 6.7; b. the car park was not premises because "premises" in the LEP Dictionary had a specific meaning which did not include a building or a structure such as a car park but rather a room; c. it was not facing the street, because it faced the rear lane where it took its access; d. the built form was greatly improved; e. active access and frontage to two streets would be integrated. 15 Each reason for expressing its satisfaction that the building will have an active street frontage after its erection and change of use is legally flawed: a. clause 6.7 did not ask for an opinion about the sufficiency of active frontage: the question was whether "all premises on the ground floor facing the street" are to be used for business or retail premises: cl 6.7(5); some is not all, and cl 6.7 was misconstrued; b. "premises" is a defined term in s 1.4 of the EPA Act, which applies by dint of s 11 of the Interpretation Act 1987 to the LEP; the definitions of various types of premises referred to in the reasons do not express a contrary intention to the defined term, as they are composite terms having a specialised meaning confined to a particular context; "premises" in cl 6.7 therefore means "a building of any description or any part of it and the appurtenances to it", which is the context in which cl 6.7 applies the term. The Second Respondent misconstrued "premises" by defining it so as to necessarily exclude the car park, whereas had it been correctly construed, it would have necessarily included the car park as it is a part of a building of any description. c. There are several errors: i. whether or not the car park "faced" the rear lane is irrelevant: the question was whether the building faced Harden Avenue; ii. merely because it faced the rear lane did not mean it could not also face Harden Avenue; this question was never addressed; iii. no reasonable decision‑maker could have concluded that it "faced" the rear lane (if that is the correct question, which is denied) because the plans show that it is completely obscured from the rear land, which is faced by a loading dock not connected to the car park and decorative screens for the vehicular access from the rear lane; iv. if it was concluded (which is unclear) that the car park does not face Harden Avenue because instead of an open face it is now to be obscured by a privacy screen, the First Respondent should have considered, but failed to do so, whether it was merely ancillary to the car park (to improve its appearance), and therefore part of the car park, or if not, whether it is an appurtenance of the building and therefore premises as defined, in and of itself. Any consideration (which is denied) must have been legally flawed by its misconstruction of "premises". d. whether the built form was improved, greatly or not, is irrelevant to whether an active street frontage as defined in cl 6.7(5), was provided; e. cl 6.7 does not call for a qualitative assessment of whether the frontages will be activated: the question is whether "all" premises on the ground floor, with the stated exclusions, are of a particular type; this was an irrelevant consideration. 16 The First Respondent did not adopt the Second Respondent's submission (via Mills Oakley advice of 22 December 2020) that the car park was "vehicular access" and therefore excluded from the active site frontage by cl 6.7(4). That would have been inconsistent with its factual finding that the car park was accessed from Timms Lane. In any event, the DA plans do not describe the car park as "vehicular access", and in context "access" means access to and from the building, in circumstances where part of the frontage must be used for that purpose. 16A In the premises, no reasonable decision maker could have been satisfied that the proposed building would have an active street frontage to Harden Avenue under cl 6.7, properly construed, and accordingly the consent should be set aside and consent to the DA should be refused. 16B If it is submitted that notwithstanding the contravention of cl 6.7 consent to the DA must not be refused because consent might be granted if a request is made under cl 4.6, that exception would not apply because cl 6.7 does not impose a development standard subject to cl 4.6.
2. Ground 2 arises from the terms of cl 6.7 of the LEP, a provision in the following terms as at the date of the Planning Panel's decision: 6.7 Active street frontages (1) The objective of this clause is to promote uses that attract pedestrian traffic along certain ground floor street frontages in Zone B2 Local Centre, Zone B3 Commercial Core and Zone B4 Mixed Use. (2) This clause applies to land identified as "Active Street Frontages" on the Active Street Frontages Map. (3) Development consent must not be granted to the erection of a building, or a change of use of a building, on land to which this clause applies unless the consent authority is satisfied that the building will have an active street frontage after its erection or change of use. (4) Despite subclause (3), an active street frontage is not required for any part of a building that is used for any of the following - (a) entrances and lobbies (including as part of mixed use development), (b) access for fire services, (c) vehicular access. (5) In this clause, a building has an active street frontage if all premises on the ground floor of the building facing the street are used for the purposes of business premises or retail premises.
3. It is not necessary to reproduce an extract from the Active Street Frontage Map referred to in the provision. It is sufficient to note that, relevantly, the entire length of the western frontage of the site (a frontage which faces Harden Street and runs between Sailors Bay Road and Timms Lane) is identified on the map as being required to satisfy cl 6.7 of the LEP if the triggering circumstances in cl 6.7(3) arise. The Company's proposed development falls within the terms of that element of cl 6.7 and, as a consequence, the clause was required to be satisfied (or dispensation from compliance with the clause requested and granted if this was available - a matter not needing to be determined) before the Company's proposed development could be approved.

The relevant element of the Planning Panel's decision

1. The Planning Panel's decision addressed cl 6.7 of the LEP in the following terms: Despite being an adaptive re‑use of the existing building, when compared to existing, the proposal presents a greatly improved outcome within the context of Sailors Bay Road and Harden Avenue, integrating active frontages and landscaping to two streets.

The council officer's report

1. The first two issues addressed in the assessing officer's table of analysis of, and responses to, the submissions which had been made to the Council concerning the Company's originally exhibited development proposal are ones relating to cl 6.7 - Active Street Frontages of the LEP. The first issue addressed in this table is the submission that the proposed development is prohibited because it does not comply with the mandatory requirements of clause 6.7 of the LEP. The assessing officer's comments in this regard are in the following terms (Folio 186): The proposal is an adaptive reuse of the building into a shop top development. The partial car parking, retention, arises from the desire to retain significant parts of the existing building. As the existing structure is being retained, the columns, slabs and footings within the basement must also be retained and cannot be undermined by digging a new level below in order to provide further basement car parking. It appears there is no reasonable alternative to the retention of the current parking arrangements on the site. Adaptive reuse of a building is regarded that as a sustainable way, as the Applicant notes: the retention of existing structures on the adaptive reuse of buildings is one of the most sustainable forms of creating new buildings. Building and construction accounts for nearly 40% of energy-related carbon dioxide emissions. This includes 28% from heating, cooling and powering the structure, and 11% from materials and construction. The applicant is committed to upgrading the existing building for extended use as a more carbon efficient alternative to demolition. While every effort was made to accommodate as much commercial space at ground floor is possible (as depicted in the amended plans), the configuration must accommodate both car parking and commercial at ground floor. Notwithstanding the above, Mills Oakley provided legal advice on behalf of the applicant that the proposal is already compliant with clause 6.7 active street frontage. Council's design specialist is satisfied that the amended scheme sufficiently complies with the intent of clause 6.7 - active street frontages of W LEP 2012. More detailed assessment is contained in Attachment 7.
2. The second element in these submissions that can be regarded as necessarily relating to cl 6.7 of the LEP is the submission that use, at ground level, should not be for car parking. The assessing officer's comment on this is as follows (Folio 186): The proposal is an adaptive reuse of an existing building. As the existing structure as being retained, the car parking level is also partially retained. Notwithstanding the retention of some of the current parking arrangements, sufficient commercial space is created at ground floor in order to activate entirely the street frontages, Sailors Bay Road and partially, but satisfactory, the street frontage at Harden Avenue. Mills Oakley provided legal advice in regard to clause 6.7 Active Street Frontage. All premises at ground floor are commercial premises and are of sufficient size to activate both Sailors Bay Road, and Harden Avenue. Moreover, Council's Design Specialist is also supportive of the amended scheme. Taking into account the specifics of the site, the proposal is regarded as satisfactory.
3. Attachment 7 was noted in the earlier comments from the assessing officer as addressing complaints of non-compliance with cl 6.7 - Active Street Frontages. Attachment 7 to the report commences at exhibit A, tab 11, Folio 218. It addresses view loss complaints and the topic of compliance with cl 6.7 of the LEP. The first 10 pages of Attachment 7 address the various view loss complaints. It is not necessary to address those in any detail. The element of Attachment 7 which addresses cl 6.7 of the LEP commences at Folio 228 and is of two and a half pages in length. In order to understand the matters I consider with respect to Ground 2, it is appropriate to reproduce the entirety of Attachment 7. It is reproduced as Annexure A to this decision.
4. In this context, it is to be noted that, at the top of the second page of this document, it summarises the legal advice which Mills Oakley provided to the Council concerning cl 6.7 of the LEP. It will be necessary, later, to return to detail of the Mills Oakley advice in my specific consideration of Ground 2.
5. It is also to be noted that Attachment 7 to the assessing officer's report is not, as can be seen from the comment at the foot of the second page of Annexure A, a document written by Council's Design Specialist personally but is a more expanded document (presumably prepared by the assessing officer) incorporating advice received from the Design Specialist and that the comment at the top of the third page of Annexure A: "the development does present a greatly improved built form, integrating active access/frontage to 2 street frontages" can be assumed, by necessary inference, to be a comment from the Design Specialist.
6. As earlier noted, the Assessment Report prepared by the council officer for submission to the Planning Panel contained a number of appendices addressing the various matters which arose from the LEP that were mandated for consideration by the Planning Panel as part of its deliberation and determination process. Appendix 7 dealt with cl 6.7 of the LEP. The relevant elements of this appendix that informed the Planning Panel's considerations are summarised below.
7. The Council's assessing officer formed the opinion that there is a satisfactory amount of business premises created at the ground floor to activate both street frontages on Sailors Bay Road and Harden Avenue.
8. In reaching this state of satisfaction, the Council's assessing officer considered advice from the Council's Design Specialist. The Council's Design Specialist formed the opinion that the amended scheme complies with the intent of cl 6.7 of the LEP, advising in the following terms: "The development does present a greatly improved form, integrating active access/frontage to two street frontages".
9. The Council's assessing officer also considered the position of Mills Oakley in the form of legal advice provided on behalf of the Second Respondent on 22 December 2020. The legal advice issued by Mills Oakley emphasised that all premises on the ground floor of the building facing both Sailors Bay Road and Harden Avenue are to be used for the purposes of business premises or retail premises. This arrangement, in the Council's assessing officer's view, was sufficient to activate the street frontages on both Sailors Bay Road and Harden Avenue.
10. Taking into account the legal advice provided by Mills Oakley, along with the advice provided by the Council's Design Specialist, the Council's assessing officer was satisfied ‑ to the extent necessary to meet the requirement for a consent authority to grant development pursuant to cl 6.7(3) of the LEP ‑ that the building would have sufficient active street frontage on both Sailors Bay Road and Harden Avenue.

The submissions for the Applicant

1. Mr Robertson proposed that the Planning Panel failed to address the test required under cl 6.7 of the LEP. He addressed me on the following reasons in support of his view, submitting, at paragraphs 42 and 43 of his written submissions: 42. First, the test is not whether the building "will have sufficient active street frontage to meet clause 6.7". The test is not one of sufficiency but rather whether the "building will have an active street frontage after its erection or change of use"; which is only satisfied "if all premises on the ground floor of the building facing the street are used for the purposes of business premises or retail premises", subject to the exceptions in clause 6.7(4). 43. Second, the term "premises" is not defined in the Dictionary of the WLEP 2012 because it is defined in the EPA Act and the definitions in the EPA Act apply to the WLEP 2012 unless a contrary intention appears from the WLEP 2012: see ss 5(2), 11, Interpretation Act 1987. "Premises is defined in s 1.4 of the EPA Act as, inter alia, "a building of any description or any part of it and the appurtenances to it", and "land, whether built or not". The term "room" (and any analogues) are not mentioned. The car park on the ground floor is premises, or a part of the premises. It (or at least its wall) faces the street.
2. Mr Robertson addressed me on his submission that the Planning Panel failed to satisfy the appropriate test under cl 6.7 (Transcript 1 November 2022, page 37, lines 22 to 25): [I]n this specific case, ground floor carparking is accessed from Timms Lane, and so it is not facing Sailors Bay Road or Harden Avenue. The word "facing" doesn't seem to involve a question of where you access it, and so that, too, is a misconstruction of the provision. Then [Folio 229, Annexure 7, Volume 1 of the Evidence Book] says: "Notwithstanding the retention of some of the current parking arrangements, satisfactory amount of business premises created at ground floor in order to activate both street frontages". The test is, of course, not satisfactory. The test is all premises on the ground floor of the building facing the street. So it has to be all, and some is not all.
3. Mr Robertson advanced this point in his written submissions, saying, at paragraph 44 of his written submissions: 44. [T]he test under clause 6.7 is not whether "sufficient" active street frontage has been provided, or whether the provision of a small business space is sufficient to activate the whole of the street adjoining the active street frontage, but rather whether all premises (including the car park) facing the street along the defined frontage after the adaptation of the building will be used for the purposes of business premises or retail premises. That question was never addressed by either the Panel or Council because they applied a test of sufficiency and did not consider the statutory test, or they misapplied the definition of "premises" to exclude the ground floor car park.
4. Addressing me on the Planning Panel's purported failure to comply with the control under cl 6.7, Mr Robertson submitted that it was insufficient to consider whether the development presented a greatly improved built form. Considerations of this kind were, in his submission, relevant only to matters of sufficiency and merit (Transcript 1 November 2022, page 38, lines 3 to 8): And then they quote, I think, from the design specialist: "The development does present a greatly improved built form integrating active access frontage to two street frontages". The question is not whether the built form is greatly improved, nor is it a question of integration. It's simply whether you comply with the control, and none of those matters are relevant to the control.
5. Mr Robertson suggested that the Planning Panel misunderstood the task required to perform by misconstruing clause 6.7. He proposed, at paragraphs 47 and 49 of his written submissions: 47. [T]hat the built form would be improved and that the frontages would be integrated are irrelevant as clause 6.7 does not call for a qualitative or merit assessment of the development. … 49. [I]t was not reasonably open for the Panel to find that the proposed development satisfied clause 6.7 as only approximately 36 percent of the ground floor facing Harden Avenue contained business premises and the remainder was car parking or on the alternative hypothesis, a wall.
6. Mr Robertson addressed me on the sufficiency of looking at the DA plans in identifying areas that are excluded from the DA. He advanced, at paragraph 45 of his written submissions: 45. The Assessment Report found that access was via Timms Lane. That was a finding of fact which is not affected by legal error, and therefore is binding on judicial review. Obviously, such a space cannot be activated without preventing access. It does not include car spaces or car parking, which is the use of the ground floor denoted on the DA plans. In Ku‑ring‑gai Council v Buyozo Pty Ltd [2021] NSWCA 177; (2021) 248 LGERA 300, the Court of Appeal held that to identify areas excluded from GFA (in that case a space for the loading and unloading of goods and access to it) it was sufficient to look at the DA plans. If an area was identified for car parking, then loading etc. would be unlawful if it took place in the car park (see at [84]). In the present case, the ground floor is described on the DA plans as "car park", and it is not designated for vehicular access. The access to the car park is by the rear lane and is not part of the manoeuvring space for the car park.
7. In the context of frontage control, Mr Robertson suggested that the term "vehicular access" should be understood with respect to its ordinary meaning. He proposed that vehicular access means the place where vehicles enter and exit the building or land. He proposed, at paragraph 45 of his written submissions, that the term "carpark" did not come within the meaning of "vehicular access".
8. Mr Robertson submitted that the question of whether the carpark faced the rear lane was irrelevant. Instead, he submitted that the Planning Panel should have considered whether any part of the building (the premises) faced Harden Avenue. This point was addressed at paragraph 46 of his written submissions: 46. [T]he question was whether any part of the building (the premises) faced Harden Avenue. Merely because it faced the rear lane did not mean it could not also face Harden Avenue. This question was never addressed. No reasonable decision‑maker could have concluded that the car park "faced" the rear lane (if that is the correct question, which it was not) because the plans show that it is completely obscured from the rear lane, which is faced by a loading dock (which is not connected to the car park) and decorative screens for vehicular access from the rear lane. If it was concluded (which is unclear) that the car park does not face Harden Avenue because instead of an open face it is now to be obscured by a privacy screen, then it was necessary for Council to also consider whether the screen was merely ancillary to the car park (to improve its appearance) and therefore part of the car park, and if so, whether it is an appurtenance of the building and therefore premises (as defined), in and of itself. Any consideration of these matters must have been legally flawed by Council's misconstruction of "premises" as room for specified purpose.
9. Mr Robertson advanced this point (Transcript 1 November 2022, page 38, lines 32 to 45): [I]t does seem to us perfectly plain that council decided, and the panel adopted this decision, that the control was met because they believed on a merit ground that sufficient activation took place, and, in any event, the carpark wasn't premises. And, to further reinforce it, the carpark didn't face Harden Avenue, but because vehicular access was from Timms lane, it was facing Timms Lane. Of course, your Honour would know that's not the question. Whether it faces Timms Lane doesn't mean it can't face Harden Avenue, and in fact, it faces Sailors Bay Road as well. The one thing it doesn't face, there is no frontage on the eastern side of this building.

The submissions for the Company

1. Mr Galasso rejected the proposition that the development is prohibited because it does not have an active street frontage in contravention of cl 6.7 of the LEP. He proposed three reasons outlining why the Planning Panel was entitled to be satisfied that the building does not bear an active street frontage for the purposes of cl 6.7. The first of these reasons was submitted at paragraph 55.1 of his written submissions: 55.1 First, the ground floor carpark is used for the purpose of the business and retail premises on the ground floor and, accordingly, is properly characterised as being for the purpose "business premises" for the purposes of the WLEP 2012. The Development includes two business premises on the ground floor.53 The business premises account for 78% of the ground floor's GFA.54 One of the car spaces on the ground floor is required to be "business car space" under the Consent.55 As per Arco Iris Trading at [25]‑[30] it would be appropriate to characterise that car space as being for the purpose of business premises. The carpark, driveway and vehicular access on the ground floor are all designed to serve the business premises by providing vehicular and pedestrian access to the ground floor business and retails premises. Although the ground floor carpark, driveway and vehicular access are also used for residential purposes, their use for the purpose of the business premises is not subordinate or ancillary to that use. Accordingly, the Court would be satisfied that there are multiple independent uses and that one of the purposes for which carpark, driveway and vehicular access are being used is for business premise or retail premises (see, Chamwell Pty Ltd v Strathfield Council [2007] NSWLEC 114, 151 LGERA 400 (Chamwell) at [44]) with the effect that "all premises on the ground floor of the building facing the street are used for the purposes of business premises or retail premises" pursuant to cl 6.7(5). This issue is addressed in Mr Brown's report at [50]‑[64]; 56 see, also the joint planning report at [1.5].57.
2. Mr Galasso submitted second and third reasons in support of his position between paragraphs 55.2 and 55.3: 55.2 Second, in any event, the area designated as "carpark" is "vehicular access" for the purposes of cl 6.7(4)(a) and therefore active street is not required [for] that part of the building pursuant to WLEP 2012, cl 6.7(4).58 This issue is addressed in Mr Brown's report at [65]‑[75]; see, also, the joint planning report at [1.8]. 55.3 Third, the ground floor carpark is not "facing the street" on the proper construction of cl 6.7 and therefore is not required to be used for the purposes of business premises or retail premises in any event. Mr Brown addresses this issue in his report at [33]‑[38]. In the joint planning report, Ms Francis appears to agree (at [1.2]) that the "carpark cannot be said to 'face the street', being Harden Avenue" although this aspect of her evidence is drafted infelicitously and her meaning is not clear.
3. Mr Galasso commented on the proposition advanced by Mr Robertson that the Planning Panel applied the wrong test by determining the "sufficiency" of the active street frontage pursuant to cl 6.7. He submitted that such a proposition misconstrued the finding made in the Assessment Report. He replied, at paragraph 57 of his written submissions: 57. If the finding [of the Assessment Report] is properly viewed in context, it is clear that the term "sufficient" is being used in the sense that all premises on the ground floor of the building that are required to face the street as a matter of law face the street as a matter of fact. That meaning is borne out by the reference to "legal advice provided by Mills Oakley" and "the comments provided by Council's Design Specialist" earlier in the sentence. The "advice provided by Mills Oakley"67 contends, inter alia, that the carpark faces the rear of the site to Timms Lane rather than Harden Avenue and carpark constitutes "vehicular access" for the purpose of cl 6.7(4) and therefore is not required to be business or retail premises.
4. Mr Galasso considered it appropriate to reproduce specific comments provided by Council's Design Specialist in relation to the active street frontage requirements under cl 6.7. Relevantly, these comments were repeated at paragraph 57 of his written submissions: 57. "[I]n this specific case, ground floor car parking is accessed from Timms Lane and so, it is not facing Sailors Bay Road or Harden Avenue. Notwithstanding the retention of some of the current parking arrangements, satisfactory amount of business premises is created at ground floor in order to activate both street frontages (Sailors Bay Road and Harden Avenue) and all premises on the ground floor of the building facing the street are used for the purposes of business premises. Furthermore, Council's Design Specialist advised he is satisfied that the amended scheme complies with the intent of Clause 6.7 ‑ Active Street Frontages of WLEP 2012, 'to promote uses that attract pedestrian traffic along certain ground floor street frontages': "The development does present a greatly improved built form, integrating active access/frontage to two street frontages". (Emphasis added).
5. Mr Galasso rejected the proposition advanced by Mr Robertson that the term "carpark" did not come within the ordinary meaning of the expression "vehicular access". He replied, at paragraph 59 of his written submissions: 59. The carpark, or at least that part of carpark that its contiguous with Harden Avenue which provides the access to the parking spaces, indisputably provides vehicular access, and should be read as such for the purpose of cl 6.7(4). Further, the meaning of "vehicular access" for which the Applicant contends is contrary to the meaning given to that phrase elsewhere in the WLEP 2012, such as in the definition of "gross floor area".
6. Mr Galasso submitted that, as distinct from the term "premises", the term "building" in its entire structure extended to include the term "carpark". He further proposed that there was no change of use associated with the carpark. In support of his reasons why, he said (Transcript 3 November 2022, page 173, lines 12 to 28): Other words in the dictionary refer to buildings, and that's the distinction continued. Then this: in this case, "building" refers to the entire structure, carparking included. That is, where "building" is used in s 6.75, consequently, carparking is not regarding [sic] as a premises. That's the first element, and we would submit that that is open and available as a matter of construction, and secondly, neither is, in the case of a change of use of premises that does not automatically imply a change of use of associated carparking. That is, to the extent that you want to define it, the carparking change is in fact not a change of use. It's sufficiently broad. You don't need to go into Chamwell for purpose. It's carparking before and it's carparking after, and the door opening for the clause is about a change of use, so when we're looking at use as opposed to purpose, and this is one of those instances in which use is apt to being the descriptor of what the clause is talking about rather than use for purpose, there is, in fact, no change of use. Now, that is another aspect that's available as a matter of construction in the circumstances of this case, and we would submit, open to the decision maker.
7. Mr Galasso proposed two matters of construction that he submitted were fatal to the Applicant's challenge on this ground. Relevantly, these matters of construction concern the definition of the term "premises" and the extent, if any, to which the premises face the street frontages of both Sailors Bay Road and Harden Avenue. He proposed, at paragraphs 62 and 63 of his written submissions: 62. Firstly, to the extent that the term "premises" is defined in the EP&A Act that definition is "except in so far as the context or subject‑matter otherwise indicates or requires": s 1.4. That exemption is not as to the application to the WLEP 2012: contra applicant's submissions at [43]. The applicant's case depends upon, essentially, anything and everything (on ground floor) constituting "premises" for the purposes of cl 6.7. However, in context the clause is concerned with ensuring that premises that are at ground level engage with the street so as to activate it. In the circumstances of the present case, the carparking would never sensibly be regarded as "premises". 63. Secondly, in terms of cl 6.7, all premises which are in the ground floor of the building facing the street in fact are used for the purposes of business premises or retail premises. That is, properly construed (according to its terms) cl.6.7(5) is simply concerned with an inquiry of those "premises" which face the street (the two tenancies) and whether their use is of a particular characterisation(s). They are.

Consideration

1. This ground can be disposed of comparatively briefly. First, the terms of cl 6.7 of the LEP are ones which had put a requirement for satisfaction on the Planning Panel that what was mandated - the activation of the entire street frontage along Harden Avenue for the entirety of its length adjacent to the site - was achieved. Despite the valiant endeavours of Mr Galasso to explain why it should be concluded that it had been achieved, there is no proper basis in fact on any rational construction of the wording of the clause that could have led the Planning Panel to have concluded that it was satisfied.
2. As a consequence, the Applicant's Ground 2 is established.
3. However, that is not the end of the matter - it is next necessary to consider whether, in exercising the discretion available to me, because of s 9.45(1) of the EPA Act, I should order intervention with the Company's development consent as a consequence.
4. There was no evidence before the Planning Panel that would have permitted it, in the sense addressed by the Court of Appeal at [75] of El Khouri that, in its consideration of cl 6.7 of the LEP, there was a proper evidentiary basis upon which it could conclude that the provision had been satisfied. Appendix 7 to the assessing officer's report, in its second section addressing cl 6.7, certainly does not provide a proper basis for the Planning Panel to reach the mandated position of satisfaction that compliance with the clause had been achieved by the Company's proposed development.
5. However, it is next necessary to consider, in light of the matters I have earlier set out as providing guidance as to how the exercise of my discretion is to be approached, whether it is appropriate to order any intervention. This is particularly so in the context where what is here involved is not an issue where the public body charged with enforcing the relevant provisions of the planning regime is seeking to restrain the breach of that regime (Sedevcic principles 6 and 7). Here, the relevant body (the Planning Panel on behalf the Council) has, misguidedly, concluded, in reliance on Appendix 7 to the assessing officer's report in combination with the commentary in the assessing officer's (brief) noting of, and commentary concerning, the public submissions objecting to the Company's proposed development (including the submission lodged by the Applicant expressly raising the issue of non-compliance with cl 6.7 of the LEP).
6. It is in this context that I turn, first to set out, briefly, relevant merit matters advanced by Mills Oakley in its letter of advice to the Council concerning this provision of the LEP. Whilst the letter does not provide any proper legal basis upon which the Planning Panel could have properly concluded that the clause was satisfied, the letter also addresses matters of merit concerning the Company's proposal as it addresses Harden Avenue.
7. The letter from Mills Oakley is five pages long. In the present context, it sets out several matters where legal propositions concerning the interpretation of cl 6.7 are advanced. It is not necessary, in the context of this assessment, for me to reflect on whether I except the accuracy of the various legal propositions advanced in the Mills Oakley letter. It is, perhaps, sufficient to note that at least some of them are contestable.
8. For present purposes, there are elements set out on page 3 of the five-page letter are reflective of merit matters addressed in Appendix 7 to the assessing officer's report. These matters are set out in the following terms in the Mills Oakley letter:

• there is presently no commercial activity on Harden Avenue, and it is almost entirely a residential street with the exception of the Sailors Bay Road intersection;
• the proposal will provide 83m² more active frontage than the existing development;
• the provision of a further level of basement car parking is not feasible or practical due to site constraints and prohibited of cost.

1. As earlier noted, I have also reproduced a copy of Appendix 7 to the assessing offices report - this being the document upon which the Planning Panel had founded its erroneous conclusion that the Company's proposal was sufficiently compliant with cl 6.7 of the LEP to warrant being granted conditional approval.
2. Although, as earlier explained, such a conclusion of satisfaction did not provide a basis upon which the Planning Panel could conclude that there was a legal basis (as opposed to sufficient satisfaction of the merits), what was set out in the document at Annexure A does provide, under the circumstances of the adaptive reuse of the existing building proposed by the Company, a proper merit basis (had such a basis being made available to the Planning Panel as the repository of the power to grant consent), to have formed the necessary opinion of satisfaction to grant consent. Indeed, there is no suggestion advanced on behalf of the Applicant that, had the power been available to the Planning Panel to undertake a merit assessment in the fashion which it had done, it would have been unreasonable in a Wednesbury sense (Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1998] 1 KB 223 and Planning Commission (WA) v Temwood Holdings Pty Ltd (2004) 221 CLR 30; [2004] HCA 63) for it to have done so.
3. The material available to the Planning Panel that did address merit matters (including environmental sustainability matters) would have provided a proper merit basis to conclude, with respect to this aspect of consideration, that the Company's proposed development warranted approval.
4. As a matter of the exercise of my discretion pursuant to s 46(1) of the EPA Act, I, too, am satisfied that, on the merits of those aspects of the proposal relevant to the issue of activation of the Harden Avenue street frontage, there will be sufficient activation on that frontage when compared to what was the pre-existing position, that it is not appropriate to order any intervention the Company's development consent on the basis of non-compliance with cl 6.7 of the LEP.
5. It therefore follows that, whilst Ground 2 is made out, I decline to grant any relief based on this non-compliance.

Introduction

1. Ground 3 was particularised in the Further Amended Summons in the following terms: 17 The DA is for prohibited development as it is not shop top housing. 18 Shop top housing is permissible in the B2 zone but residential accommodation is prohibited. 19 The proposal is not for shop top housing because dwellings /two rear apartments on levels 1, 2 and 3 and the rear apartment on level 4l are located above the car park. not business premises. and do not intersect at all in the vertical plane with the business premises. To the extent that the test is that there need not be directly vertical correlation and may be lateral displacement of a dwelling from the ground floor business or retail premises, that test is not met because the dwellings are not "located above" any part of the ground floor business premises.

The definition of "shop top housing"

1. The Dictionary to the LEP contains, relevant to this ground, a definition of "shop top housing". That definition is in the following terms: shop top housing means one or more dwellings located above the ground floor of a building, where at least the ground floor is used for commercial premises or health services facilities.

The council officer's report

1. As earlier noted, the Assessment Report prepared for submission to the Planning Panel contained a number of appendices addressing the various matters which arose from the LEP that were mandated for consideration by the Planning Panel as part of its deliberation and determination process. Appendix 8 of the Assessment Report dealt with the compliance of the proposal with the State Environmental Planning Policy No 65 ‑ Design Quality of Residential Apartment Development (SEPP 65) and the design criteria principles provided in the Apartment Design Guide (ADG). It is sufficient to reproduce a shortened version of the table included in Appendix 8 insofar as it provides, albeit in brief terms, the following assessment of the proposal's characterisation as shop top housing: Part 1: IDENTIFYING THE CONTEXT Complies 1A Apartment building types Comments Yes The proposal provides for shop top apartments of appropriate scale for the established character of the area and the modern demand. The perimeter block apartments are considered to be suited to the context and include elements like planter boxes at most levels ‑ that are expected to increase the visual interest, the landscape contribution to the street character and ultimately improve amenity for future residents and for the immediate locality. 1C Precincts and individual sites Comments Yes The proposal is for the adaptive reuse of the existing isolated office building located at 131 Sailors Bay Road via its conversion into a Shop Top Housing development.

The submissions for the Applicant

1. Mr Robertson relied solely on his written submissions for this ground. He submitted that the subject site is zoned B2 Local Centre under the LEP, and that shop top housing is permitted with consent in the B2 zone.
2. Mr Robertson turned my attention to the definition of shop top housing. He proposed that the definition of shop top housing excluded residential accommodation in the B2 zone, saying, between paragraphs 51 and 52 of his written submissions: 51. "Shop top housing" is defined as "one or more dwellings located above ground floor retail premises or business premises". Residential accommodation is otherwise prohibited in the B2 zone. 52. The existing building does not have retail or business premises on the ground floor. The proposal was to construct on the ground floor 82m2 of business premises facing Sailors Bay Road. Subsequently the plans were amended to add a small additional area of business premises on the ground floor facing Harden Avenue.
3. Mr Robertson proposed, at paragraph 53 of his written submissions, that the ground floor could not properly be characterised as business or retail premises. Instead, he proposed that the ground floor ought to be characterised as residential with other minor uses.
4. Mr Robertson drew attention to the decision of Sheahan J in Hrsto v Canterbury City Council (No 2) [2014] NSWLEC 121; (2014) 204 LGERA 148 ("Hrsto"). He proposed, in paragraphs 54 and 55 of his written submissions, based on his Honour's findings, that residential parts of the building must be truly "above" the relevant retail and commercial parts to qualify as shop top housing: 54. Sheahan J accepted submissions at [33]‑[34] that "above" meant "in or to a higher place; overhead", and the housing in a "shop top housing" development "must be at a place or level that is higher" than "the topmost part of the ground floor retail premises or business premises" (at [33]) … 55. The issue in Hrsto was whether residential dwellings on the ground floor of a development could constitute "shop top housing", which was answered in the negative, and therefore the development was prohibited (at [61]). Some of his Honour's reasoning as to the meaning of "above" in the definition of shop top housing was strictly obiter, since there was no dispute that the relevant dwellings were at ground level. Nevertheless, aspects of Sheahan J's reasoning in Hrsto have been applied in subsequent Class 1 decisions of the Court.
5. In his written submissions, at paragraph 56, Mr Robertson turned my attention to folios 30 and 31 of the Statement of Environmental Effects (which was later tendered as part of Exhibit A in the proceedings).
6. In accordance with the Statement of Environmental Effects, Mr Robertson proposed that only one of the car spaces was allotted for use by the business premises. In effect, he submitted that it was inappropriate to characterise the car parking spaces as for business or retail uses and that, instead, the car park should be characterised as for residential uses. He concluded on this point between paragraphs 56 and 57 of his written submissions: 56. … Only one of the car spaces is designated for use by the business premises. Adopting the Court's approach to the characterisation of car parking spaces in Arco Iris Trading Pty Ltd v North Sydney Council [2015] NSWLEC 1113 at [23]‑[30], the car spaces are properly characterised as for residential uses, not business or retail premises, and bearing in mind that the test is whether dwellings are above the ground floor, whether there is required to be a true vertical correlation or it is permissible for there to be a lateral displacement, the proposed dwellings are not "above" business or retail premises. 57. The Court should find that the proposed development is prohibited on the subject site, and refuse consent to the DA, or declare that it was for prohibited development.

The submissions for the Company

1. Mr Galasso rejected the proposition that the development is prohibited because it does not meet the definition of shop top housing pursuant to the B2 Local Centre zone under the LEP. He submitted at paragraph 66 of his written submissions: 66. This Court would reject the Applicant's submission that the Development is prohibited. Council properly characterised the Development as being for the purpose of "shop top housing" and development for that purpose is permissible with consent in the b2 zone. The Applicant's submission that the development is not "shop top housing" is contrary to well established authority (which the applicant does not challenge) and wrong as a matter of fact.
2. Mr Galasso commented on my decision (as Senior Commissioner) in Arco Iris Trading Pty Ltd v North Sydney Council [2015] NSWLEC 1113 (Arco Iris), which dealt with the issue of whether a proposed development qualified as shop top housing, the same issue dealt with by Sheahan J in Hrsto. Mr Galasso emphasised, and sought comfort in, the persuasion of my acceptance in Arco Iris that: 69. His Honour [Sheahan J] also made it clear that it was possible for there to be a lateral displacement in such circumstances, in that there did not need to be a truly directly vertical correlation between the shop top housing and the qualifying premises at the lower level".
3. Mr Galasso concluded that the definition of shop top housing in the LEP intended to prescribe a much simpler requirement. He said (Transcript 3 November 2022, page 174, lines 38 to 46): [A]ll that's required is that the dwellings be above ground floor retail premises or business premises, in the simple sense. You ask yourself "Is there a ground floor, and on the ground floor, are there retail premises or business premises?" If the answer is yes and there are one or more dwellings located above the ground floor retail premises or business premises, shop top housing. So, the decision of the Court in Hrsto that we deal with at 68, Blackmore Design and your Honour's decision in Arco Iris in your Honour's former status are entirely consistent with the notion of this being shop top housing.
4. Mr Galasso contended, at paragraph 70 of his written submissions, that there are no dwellings on the ground floor and that the lowest point of the proposed dwellings is above the highest point of all the ground floor retail or business premises, even though all the dwellings are not directly above those premises. He submitted at paragraph 70 of his written submissions: 70. There are no dwellings on the ground floor. To use the language of Hrsto, all dwellings are "at a floor that is higher than the top of the ground floor retail or business premises". Accordingly, the development satisfies the definition of "shop top housing" and was properly characterised as such: see, Lo Brothers Company Pty Limited v Inner West Council (No 2) [2022] NSWLEC 1114 at [29]; c.f., Hrsto at [27] and Blackmore Design Group at [13].
5. During his oral submissions, Galasso submitted that a search for homogeneity in terms of the ground floor does not satisfy the description of shop top housing pursuant to the B2 Local Centre zone under the LEP. In advancing this point, he used the example of access (Transcript 3 November 2022, page 174, lines 24 to 36): You can't have, in the absolute sense, dwellings located above ground floor ‑ anything ‑ without there being aspects of dwellings at ground floor. So, by that, a simple example is access. If there is an entrance lobby or stairs that go upstairs in the purest sense, in the Chamwell use for purpose approach, you characterise those stairs as used for the purposes of dwellings, and you would never then be able to satisfy the description of shop top housing. You always have to have an exception. The lift, the residential lift, or even if it's just a simple, traditional shop top housing ‑ shop on the bottom and residence on the top, and there's one of them, that's all you need, and there's a set of stairs. The stairs, on the applicant's approach, disqualifies the ability to for it to be shop top housing. So, the search is not for homogeneity in terms of the ground floor; it is in terms of a construction that yields a result that's consistent with the intent of the definition.

Consideration

1. In essence, as can be seen from the above summary of the submissions advanced on behalf of the Applicant, the Applicant proposes that the interpretation which I had derived and applied to the concept of shop top housing in my 2015 decision in Arco Iris Trading was inappropriately expansive and that a direct vertical linear relationship was required for the purposes of establishing that residential accommodation could satisfy the terms of the definition.
2. It is also to be noted that the decision of Biscoe J in Blackmore Design Group Pty Ltd v Manly Council [2014] NSWLEC 164 (Blackmore), expressly provided that parking spaces provided for vehicles of owners of apartments in shop top housing were not to be taken into account in considering whether the definition of shop top housing in an LEP was satisfied.
3. In this context, I note that I should not be regarded as blindly intellectually wedded to the conclusion which I reached in Arco Iris Trading but have considered, in the context of the submissions made by Mr Robertson, whether I should adhere to the conclusion which I reached in those proceedings (a conclusion founded on what I then considered to be the correct understanding of the decisions of Sheahan J in Hristo and the decision by Biscoe J in Blackmore, when applied to the definition of "shop top housing" as then contained in the North Sydney Local Environmental Plan 2013 (the LEP 2013)). In this context, I note that the definition of "shop top housing" in the Dictionary to the LEP 2013 as at the date of my decision in Arco Iris Trading was in identical terms to that which currently applies in the LEP applicable for the Company's development proposal.
4. It is to be noted that, if the submission advanced by Mr Robertson was correct, the proposed apartments on the three existing levels that were toward the northern end of the existing structure or on the proposed added uppermost level would not have any vertical linear relationship with either of the proposed commercial ground floor uses ‑ as the northern wall of the more northern of those two uses would be to the south of the most southern element of those dwellings and there is no designated commercial parking space within the parking spaces provided on the upper (ground floor) level of the parking facilities on the site.
5. It is not necessary to repeat [20] to [30] of my decision in Arco Iris Trading, being the paragraphs where I explained why I had concluded that there was no necessity for a vertical linear relationship between the required uses on the ground floor of those premises and the proposed residential uses on levels above.
6. However, having carefully considered Mr Robertson's submissions, I am not persuaded that the view which I had expressed in Arco Iris is incorrect. I remain satisfied that there is no necessity for any vertical linear relationship between any apartment falling within the concept of shop top housing to be directly above any of the ground floor commercial or business premises that provide the anchoring foundation for the permissibility of such a development. To adopt the approach advanced for the Applicant, I am satisfied, would lead to a perverse and irrational outcome by rendering it impossible to approve any of the apartments above the ground level that were entirely to the north of an imaginary vertical line drawn from the northernmost extent of the commercial premises on the ground floor.
7. Ground 3 fails.

Introduction

1. Ground 4 was particularised in the Further Amended Summons in the following terms: 20 Under cl 4.4 of the LEP, the FSR for the subject land is 2.5:1. 21 The DA claimed and the First Respondent accepted that the FSR of the proposal was 2.49:1. 22 The allowable GFA is 1,982.5m2. Drawing DA 28 Rev. D claimed that the actual GFA was 1,978.5m2. 23 However, no space in the area denoted as "Basement" was included as GFA in Drawing DA 28 Rev D. 24 Basement storage is an exclusion from GFA: LEP Dictionary. However, basement is defined in the LEP Dictionary to mean the space of a building where the floor level of the storey immediately above is less than 1 metre above ground level (existing). 25 The ground floor of the proposed building is immediately above the "Basement", and it is not less than 1 metre above ground level (existing). Therefore. all storage in the Basement Level should have been included in the GFA calculations. 26 In the alternative to [25) if storage in the Basement Level only counts towards GFA in those parts of the basement where the floor above is not less than 1 metre above ground level/existing), then at least part of this area should have been included as GFA. 27 The area in the south‑eastern corner of the Basement denoted "void" should also have been included as GFA because it was confined to one level and therefore did not meet the definition of void in subclause /j} of the definition of GFA in the LEP Dictionary. 28 The spaces denoted "Open Courtyard" on Levels 1‑3 in Drawing DA 28 Rev D were not included as GFA. 29 The spaces denoted "open courtyard" are not a "terrace or balcony" within the meaning of paragraph (i) of the GFA definition in the LEP Dictionary because they are enclosed on all sides by either walls or windows: 30 Therefore. the areas of the "open courtyards" should have been included as GFA. 31 The inclusion of all of the above areas in the GFA calculations when properly calculated results in a GFA of approximately 2,188 m2, which exceeds the allowable GFA. 32 In the alternative to [31). if only part of the basement storage is included as GFA. the GFA of the proposal was approximately 2,126 m2, which exceeds the allowable GFA. 33 No cl 4.6 request was made to justify contravention of cl 4.4. and the First Respondent had no power to grant consent.
2. The site is subject to a maximum floor space ratio (FSR) by operation of a combination of cl 4.4 of the LEP and the relevant sheet of the Floor Space Ratio Maps. The LEP provision setting the requirements for FSR is cl 4.4. The relevant element of cl 4.4 is: 4.4 Floor space ratio (1) … (2) The maximum floor space ratio for a building on any land is not to exceed the floor space ratio shown for the land on the Floor Space Ratio Map. (2A)‑(2C) …
3. The site is shown on the Floor Space Ratio Map - Sheet FSR_007 as having a permitted maximum FSR of 2.5:1.
4. As can be seen from the terms of this ground and the particulars advanced in support of it, there is a dispute between the Applicant and the Company as to calculation of the gross floor area (GFA) of, and hence the FSR to be ascribed to, the development for which the Company sought consent as submitted in its DA to the Council. If the correct calculation of the GFA of the proposed development for which application had been made when the FSR was calculated by application of the area of the site to the GFA resulted in an FSR of greater than 2.5:1, then the Company would have been required to lodge a dispensation request pursuant to cl 4.6 of the LEP and be successful with that request in order to be permitted to exceed the 2.5:1 FSR development standard set for the site by cl 4.4 of the LEP and Floor Space Ratio Map ‑ Sheet FSR_007.
5. In this context, it is necessary to consider two definitions contained in the Dictionary to the LEP. Those definitions are of "basement" and "ground level (existing)". The definition of "basement" is in the following terms: basement means the space of a building where the floor level of that space is predominantly below ground level (existing) and where the floor level of the storey immediately above is less than 1 metre above ground level (existing).
6. The definition of "ground level existing" is in the following terms: ground level (existing) means the existing level of a site at any point.
7. No dispensation request pursuant to cl 4.6 of the LEP was lodged with the Council when the Company's DA was submitted.
8. In the earlier section of this judgment addressing the question of whether or not the Applicant had commenced these proceedings validly, I set out paragraphs 1 to 11 of the Applicant's affidavit of 20 October 2022. For the purposes of my consideration of this ground (and of Grounds 5 and 6), it is appropriate to repeat the terms of paragraphs 3 and 4 of the Applicant's affidavit of 20 October 2022. These paragraphs were in the following terms: 3. In October 2020, I became aware that DA 2020/238 had been lodged, when it was placed on public exhibition. 4. On 22 November 2020, I lodged a submission objecting to that application on behalf of Castle Constructions. A copy of that submission is annexed to this affidavit and marked "A".
9. As can be seen from paragraph 4 of the Applicant's affidavit reproduced immediately above, a copy of his submission objecting to the Company's development application was annexed to his affidavit.
10. For the purposes of this portion of my judgment, I have carefully reread the objection which the Applicant lodged to the Company's development application.
11. I have earlier set out those elements of this objection that relate to Ground 2. It is sufficient to note, for the purposes of Ground 4, that the Applicant made no mention of him having any concerns relating to the GFA calculation submitted in the material supporting the Company's development application. In this context, it is to be noted that his objection submission was clearly based on him having had the opportunity to inspect (and to be advised about if he so chose) the plans that formed part of the Company's development application.

The position of the Applicant

1. The position advanced on behalf of the Applicant is that a proper calculation of the GFA of the Company's DA resulted in an FSR which breached the development standard set by cl 4.4 of the LEP. If the position advanced on behalf of the Applicant is correct, the Applicant's submission is that the DA for the originally proposed development required to have a dispensation request made pursuant to cl 4.6 of the LEP; no such dispensation request was provided to the Council for the Planning Panel's consideration; and, as a consequence, the Planning Panel was precluded from granting consent to a development proposal, which exceeded the maximum FSR set by cl 4.4 of the LEP.

The position of the Company

1. The position advanced for the Company is that, on proper application of the definition of "gross floor area" in the LEP, the GFA of the development advanced with the Company's DA complied with cl 4.4 of the LEP because the properly calculated FSR of the Company's proposed development was less than the 2.5:1 development standard applicable to the site.

The surveying evidence

1. Surveying evidence was commissioned by the Applicant and by the Company. This evidence was given by:

• Mr de Nett on behalf of the Applicant. He provided an affidavit which had been filed and served prior to the hearing. He also provided a supplementary affidavit setting out the details of the additional areas he proposed should be added to the Company's calculated GFA in order to obtain what he considered was the correct GFA for FSR calculation purposes. This affidavit was read after I rejected an objection from Mr Galasso to its admission (it being appropriate to note that the Company was granted leave to file and serve a reply affidavit if it wished to do so, but no such reply affidavit was filed and served; and
• Mr Walton gave evidence for the Company. He provided an affidavit which had been filed and served prior to the hearing.

1. The surveyors were required for cross‑examination. Although, conventionally in Class 4 proceedings, expert evidence would be given sequentially, by agreement of the parties, the oral evidence of the surveyors was given concurrently.

The applicability of the Court of Appeal's decision in El Khouri

Introduction

1. As can also be seen from the submissions advanced on behalf of the Company concerning the applicability of the decision of the Court of Appeal in El Khouri that the Company has submitted that the proper application of matters of principle addressed in that decision acts to preclude me upholding this ground. It is first, therefore, necessary to address this proposition as it is potentially fatal to considering the evidentiary basis now advanced on behalf of the Applicant in support of this ground.
2. Clause 4.4 was addressed in the assessing officer's report upon which the Planning Panel based its decision.
3. First, it is to be noted that, in the assessing officer's report, relevant provisions of the LEP were addressed under the heading Development Statistics. The report noted, with respect to cl 4.4 - floor space ratio that the proposed floor space ratio was 2.49:1 whilst that which was permitted by the LEP was 2.5:1. The report noted that the proposed gross floor area was 1981.5 m2 whilst the permitted area as a result of applying the floor space ratio to the site size was 1982.5 m² - thus the gross floor area was marginally less than the limit set by clause 4.4 of the LEP. Under the heading complies, the assessing officer reported. Yes.
4. As I have already noted, attachment 3 to be assessing officer's report addressed the various submissions lodged with the Council during the public commentary period. I repeat that those submissions are set out at folios 186 to 195. On folio 188, a complaint is noted, in the issues raised column of this analysis table, in the following terms: The proposal is non-compliant with the clause 4.4 WLEP - Floor Space Ratio standard/development intensity on small site compared to a larger site.
5. The assessing officer's comment in this regard, was in the following terms: The ground floor car parking was amended to ensure FSR compliance. The amended proposal is found to be compliant with the 2.5:1 FSR control. Given this matter, the intensity of the proposal on site is assessed as appropriate.
6. The above is the only element of the submissions addressing matters relating to cl 4.4 of the LEP.
7. As a consequence, that which now arises for consideration in those circumstances, is the extent to which (if at all) the decision of the Court of Appeal effectively requires that this ground be rejected.
8. In addressing this proposition, it is first appropriate, prior to turning to the detail of the circumstances giving rise to this ground (if it is necessary to do so) to repeat the relevant portions of the submissions advanced on behalf of each of the parties that are relevant for this consideration.
9. I first set out the elements of the Company's submissions at (4) to (6), submissions in the following terms: 4. …… The effect of El Khouri is that while the Panel was required "to take into consideration" the WLEP and SEPP 55 in determining the DA under s 4.15(1)(a)(i) of the EPA Act, compliance with those environmental planning instruments was not a jurisdictional prerequisite to the Panel's power to grant consent: El Khouri at [74]. To reframe the proposition, a non‑compliance with the WLEP or SEPP 55 will not invalidate the Decision. 5. Accordingly, to the extent that the Applicants grounds of review depend on non‑compliance with cl 4.3 "Height of buildings" (Ground 1), cl 6.7 "Active street frontages" (Ground 2), the B2 Land Use Table "Shop top housing" (Ground 3), cl 4.4 "Floor space ratio" (Ground 4) of the WLEP, and cll 7(1)‑(3) of SEPP 55 (Grounds 5 ‑ 6), those grounds must founder. 6. The Panel formed a view that was open to it on the available materials. The Applicant cannot now challenge that decision on the basis new evidence that was not before the Panel: El Khouri at [75].
10. It is next appropriate to set out the relevant paragraphs from the submissions on behalf of the Applicant concerning the Court of Appeal's decision in El Khouri where those submissions are relevant to this ground. The relevant elements of these submissions are at (8) and (12) to (13). As can also be seen toward the end of (13) reference is also made to the Applicant's supplementary submissions on Ground 4 and GFA of 12 December 2022. The above-noted paragraphs from the Applicant's submissions on El Khouri were in the following terms: 8. In its submissions filed on 1 June 2023 at [4] [6], the second respondent submits that, in light of the Court of Appeal's reasoning in El Khouri, each of the applicant's grounds of challenge to the Panel's decision "must founder" because "the Panel formed a view that was open to it on the available materials" (at [6]). Those submissions should not be accepted for the following reasons. … 12. Ground 4 (FSR) raises the issue whether the proposed development exceeded the allowable GFA, thus contravening cl 4.4 of the WLEP. The allowable GFA was 1,982.5m2 and the plans before the Panel (Drawing DA 28 Rev D) stated that the actual GFA was 1,978.5m2, a margin of 4m2. However, those plans before the Panel depicted an area on each of Levels 1, 2 and 3 of the proposed development described as an "Open Courtyard", which on the face of the plans did not meet the definition of a "terrace or balcony" in subparagraph (i) of the definition of GFA in the Dictionary to the WLEP because they were enclosed on all sides by either walls or windows If those areas were included in the calculation of GFA as they should have been then the proposed development plainly exceeded the allowable GFA, because on the face of the plans the total area of the denoted "Open Courtyards" were greater than 4m2. Therefore, on the material before the Panel, the Panel acting reasonably ought to have formed the view that the proposed development exceeded the allowable GFA, but failed to do so. The establishment of that fact did not depend on any evidence which was not before the Panel. That Is the critical distinction between the facts of this case and the facts of El Khouri. 13. In addition in relation to Ground 4, apart from the areas above which can be calculated from the plans before the Panel (the subject plans) each at 13.0m2 (total 39m2) there are a number of other areas shown on the subject plans which are part of the GFA which can be ascertained and calculated from those plans and which result in an exceedance of the maximum GFA of at least 113.7m2 and on the Applicant's case of 168.7m2 (see Applicant's supplementary submissions on Ground 4 and GFA 12 December 2022). The measurement of the area can be made off the subject plans without expert evidence. It was only a matter of convenience that the surveyors calculated the areas in the proceedings. The surveyors were merely making calculations based on what was before the Panel.
11. It is also to be noted that (15) of the Applicant's submissions concerning El Khouri additionally said: 15. Ordinarily a mere error of fact (where not jurisdictional) is not judicially reviewable. Where however the reasoning process is not explained, but the result is unreasonable or irrational, a legal error may be inferred without precisely identifying it. ….
12. It is, therefore, first necessary to set out what are the critical paragraphs of the decision of the Court of Appeal in El Khouri. These are [74] and [75] - paragraphs in the following terms: 74. For those reasons, there is no material difference for the purposes of jurisdictional facts, between a development consent granted "on the merits" whether by the consent authority or by the Land and Environment Court after hearing an appeal, and a development consent granted under s 34(3) following a successful conciliation conference. In both cases, environmental planning instruments are a mandatory consideration by reason of s 4.15(1)(a). In the case of a determination on the merits, that occurs at the time the power is exercised. In the case of a successful conciliation conference, that occurs when the Court forms the opinion required by s 34(3) that the agreed decision is one which the Court could have made in the proper exercise of its functions. But in neither case is compliance with the environmental planning instrument a jurisdictional prerequisite to the power to grant consent. 75. It is plain that the Commissioner had regard to cl 4.3 of the Kogarah LEP. He expressly formed the only view that was open to him on the evidence which was available to him, namely, that there was compliance with the height requirement. That decision is not vitiated merely because the applicants can establish, by evidence not made available to the Commissioner, that there was not compliance with that clause.

The Planning Panel process

1. The Planning Panel's Determination and Statement of Reasons was at Tab 12 of Exhibit B, commencing at Folio 274. For the purposes of this consideration, it is appropriate to set out that portion of the document under the heading Panel Consideration and Decision. It is in the following terms: The panel considered: the matters listed at item 6, the material listed at item 7, the material presented at the meeting and briefings and the matters observed at site inspections was listed at item 18 schedule 1 of this determination and statement of reasons.
2. It is clear from a proper reading of the material set out on Folio 274, that the Planning Panel had had regard to the Council assessment report as it is not only encompassed within the above reference documents but is expressly nominated in the Planning Panel's consideration of conditions and the amendments which the Panel made to six of the conditions which had been ones advanced in the assessment report.
3. It is also to be noted that, under the heading Consideration of Community Views, the Panel observed: The panel considered that concerns raised by the community have been adequately addressed in the assessment report and that no new issues requiring assessment were raised during the public meeting.
4. This, I am satisfied, demonstrates that the Planning Panel had had regard to matters in the assessment report raising submitter concerns about cl 4.4 of the LEP and had formed the view, based on the evidence before them in the assessment report (there being no other evidence of any other matters pressed to the Planning Panel concerning cl 4.4 of the LEP), and had formed the view on the basis of that material that the proposal was compliant with cl 4.4 of the LEP.
5. To the extent that the Applicant now seeks to rely on the surveying evidence - evidence which is "fresh" in the sense that it was not available to the Planning Panel - this approach is inconsistent with what the Court of Appeal has held in El Khouri. Thus, for the purposes of the consideration of Ground 4, it is not necessary to resolve the detailed evidentiary differences between Mr de Nett and Mr Walton. This surveying evidence can, consistent with El Khouri, not provide any support for Ground 4.
6. In light of that, I am satisfied on a proper understanding of [75] of El Khouri, that, on matters of detail now pressed for the Applicant on the basis of the post-determination surveying evidence given by Mr de Nett that cl 4.4 is not satisfied, the complaint must fail, and the ground be rejected.

Introduction

1. However, for abundant caution, I address but a single element of the matters of detail pressed on behalf of the Applicant as proposing to establish a significant (and it was proposed, readily identifiable) circumstance where an element of floor space had not, on the Applicant's case, been included in the calculation.
2. For the reasons that are set out in the following section of this decision, I am satisfied that this complaint lacks merit.
3. The element to be examined is the three areas providing access to northern apartments on Levels 1, 2 and 3 of the Company's proposed development. I address this complaint because, on the Applicant's case (if correct), this demonstrates that a significant element (some 39 m²) of GFA should have been included and was not and that this should have been obvious to the Planning Panel on an examination of the plans.
4. On each of Levels 1, 2 and 3, the proposed apartments at the northern end of that level are accessed, from the common circulation lobby, by a space which is described on each of the plans as an "open courtyard". The relevant detailed floor plan, although nominating the access to this space as being by a gate, discloses that it is, in fact, to be accessed by a door which isolates the space from the common lobby circulation area for that level.
5. The relevant section plan discloses that the eastern face of each of these spaces comprises, on the external wall of the building, angled privacy louvres on top of a pediment wall ‑ a wall approximately 1.2 metres high - with translucent glass behind them. The issue is whether the translucent glass continues from the top of that wall to the slab of the floor above on the eastern side of these spaces, completely enclosing these spaces on each of the three levels or if the translucent glass is in fact the western wall of these spaces (thus meaning they are not enclosed).

The Applicant's position

1. Each of these spaces is, expressly, by virtue of its door from the common circulation area, alienated to each of the three northern residential units. These areas are completely enclosed.
2. On the evidence of Mr de Nett, each of these spaces has an area of approximately 13 square metres. As a consequence, a total of approximately 39 square metres that should have been included in the GFA for the purposes of calculating the compliance or otherwise with the requirements of cl 4.4 of the LEP has been omitted from that calculation.
3. The correct descriptive characterisation of these spaces is that they are access corridors leading from the common lobby circulation areas to the functional areas of each of the proposed apartments. Each of these areas falls within the definition of "gross floor area" for the purposes of inclusion in the total GFA of the building for calculating the FSR of the proposed development.

The submissions for the Company

1. The position advanced by Mr Galasso is that, on a proper reading of the plans, it is plain that these accessways are not completely enclosed but are open to the east (with overlooking protecting louvres with gaps between them). This, he submitted, was readily discernible on a close examination of the plans (in elevation and in plan) for these areas - it to be noted that, in plan, each of the levels is shown in identical terms.

Consideration

1. Whether or not the areas on the first, second and third residential levels leading to the access doors to the northern apartments on those levels are enclosed or whether they are open with no full height wall along the eastern edge is to be determined from the approved plans for these levels - no surveying evidence is necessary to be considered..
2. It is to be observed, in this context, that, perhaps fortunately, I am not concerned with matters of design merit (or lack thereof) ‑ those types of issues were within the remit of the Planning Panel and do not concern me here.
3. Each of these spaces (somewhat reminiscent of apartment design styles of the 1960s and 1970s): 1. is some 11 metres in length; 2. has a door to the lift lobby at the southern end; 3. has a wall along the western face of the space; and 4. has an access door to the apartment at its northern end.
4. The conundrum requiring resolution for present purposes is what is to be understood from the plans to be the design treatment along the eastern edge of each of these spaces. The plans originally considered were not clear as to whether what was depicted on the eastern façade comprised obscure glazing to the ceiling above a balustrade some 1.2 metres high with angled privacy louvres affixed to the outside of this (the position advanced for the Applicant) or whether the obscure glazing was on the western wall of these spaces with the area above the balustrades being open but with non‑enclosing privacy louvres on the eastern face of the building (the Company's position).
5. Consideration of this issue occupied a deal of time during the hearing and involved receipt of a second version of the plans, electronically, and display of the eastern elevation plan, in an enlarged image, on the audio‑visual screens in the courtroom. This consideration of what is to be drawn from the plans, involves resolution, purely as a matter of fact, of the basis upon which this area is to be treated for the purposes of GFA calculations.
6. It is to be noted that each of the relevant plans (DA.09 revision G being the level 1 plan, for example), shows each of these areas as open courtyard. The eastern elevation (DA.16 rev C) has an arrowed annotation saying "fixed blade aluminium privacy screens" with the arrow pointing to the spaces immediately to the east of these accessways. At the closest end of these accessways to the lift lobby, these areas are depicted as being open but with translucent glass as the wall behind. A proper understanding of the shading depicted on this plan, I am satisfied makes it clear, in conjunction with the relevant marked detail on the Level 1 plan (DA.09 rev D) that the translucent glazing is inboard of the privacy screening louvres and on the western façade of these spaces.
7. A proper understanding of what is to be concluded about these spaces also requires consideration of the degrees of shading of these areas on the elevation and drawing a conclusion from that in the context of an annotation (on of a cross‑section of the building showing these elements in contention. On the relevant plan for section a.a (DA.20 rev B), the annotation says "fixed blade privacy screens. Translucent glass to windows".
8. I have, since the hearing, revisited the eastern elevation plan, examining it on an enlarged basis from the electronic version in evidence.
9. I am satisfied, as a matter of fact, for the reasons advanced by Mr Galasso, that these spaces (as depicted in plan and, particularly, in elevation) are not to be understood as being completely enclosed. The spaces, although potentially open to weather impacts from wind and rain depending on prevailing conditions, are not to be assessed on any merit basis ‑ as earlier noted, that process was undertaken by the Planning Panel who made no comment about the amenity appropriateness of this design treatment (an aspect also not considered in the Council's Assessment Report). As earlier observed, the question of design merit is not a matter which detains me in these Class 4 proceedings.
10. I am satisfied, on the basis of my close examination of the plans of each of these levels and of the eastern elevation, that what is depicted (and has been approved by the Planning Panel) for these spaces is that they are not enclosed in the fashion which would invoke the definition of "gross floor area" in the LEP and require the calculation of the area of each of them to be included in the overall GFA of the building.

Grounds 5 and 6: Failure to consider contamination under SEPP 55 cl 7(1)

Introduction

1. Grounds 5 and 6 were jointly particularised in the Further Amended Summons in the following terms: 34 During the 1980s and 1990s there was a fuel bowser in the hardstand area at the northern end of the subject land. which was connected to an underground fuel tank. 35 The fuel bowser was removed from the subject land in about 1999 or 2000. but the underground tank was not removed and no remediation was carried out on the subject land. 36 Fuel and fuel odours were observed in around 1995 in the course of excavation carried out on the neighbouring property at the north eastern boundary of the subject land. 37 Given the age of the fuel tank. and the fact that it has not been used for around 20 years. it is highly likely that the fuel tank has caused the soil below the pavement and existing building at the northern end of the subject land to become contaminated. 38 Implementation of the DA will involve excavation at the northern end of the subject land below the surface of the existing pavement and building at the northern end of the subject land. in particular: a. the demolition. excavation and rebuilding of an existing drainage sump‑pit near the northwest corner of the basement car park; b. the demolition. excavation and rebuilding of the existing driveway ramps at the northwest corner of the property; c. excavation and ancillary demolition for four new column and interconnecting wall footings; d. excavation for stormwater drains from the OSD tank and ancillary services; and e. excavation for a concrete slab on compacted subgrade adjacent to the loading dock. 39 State Environmental Planning Policy 55 ‑ Remediation of Land (SEPP 55) applies to the subject land. 40 Pursuant to cl 7(1)(a) of SEPP 55, a consent authority must not consent to the carrying out of any development on land unless it has considered whether the land is contaminated. 41 In breach of cl 7(1)(a). the First Respondent did not consider whether or not the subject land was contaminated when it decided to grant the consent: a. the First Respondent relied upon and adopted the council Assessment Report (the report); b. the report did not inform the First Respondent of the likely presence of a leaking fuel tank on the subject land; c. the report did not contain any discussion of the likelihood of contamination of the subject land; d. in the report. the Environmental Health Officer stated that SEPP 55 had been considered, but did not explain how it was considered so as to enable the First Respondent to consider the matter for itself; e. in the report. the Environmental Health Officer incorrectly stated that the DA did not involve excavation works· f. the report proceeded on the legally incorrect assumption that if the DA did not involve excavation. consideration of whether the land was contaminated was not required: the First Respondent adopted this assumption and therefore failed to consider whether the subject land was contaminated; and g. there was no information about the potential for contamination in any of the other documents which were before the First Respondent at the time that it decided to grant the consent which would have enabled it to consider whether the subject land was contaminated. 42 In the alternative to (41), if the First Respondent did consider whether or not the subject land was contaminated. it failed to satisfy itself that the subject land either was or was not contaminated, which was an implied requirement of cl 7(1)(a). This requirement may be implied from the structure of cl 7(1)(a) which requires certain further matters to be considered in the event that the consent authority determines that the land is contaminated. 43 In the alternative to (41) and (42), the First Respondent had a duty to make inquiries as to whether the land was contaminated and failed to make those inquiries. and did not discharge its duty by relying upon the factually erroneous advice of the Environmental Health Officer. 44 The First Respondent's failure consider the matter specified in cl 7(1)(a) of SEPP 55, or to consider cl 7(1)(a) according to law. was material to the decision to grant the Consent because, if the First Respondent had considered this matter according to law. it would have made or caused to be made sufficient inquiries about prior land uses to uncover the refuelling use, which at the very least required the carrying out of a preliminary investigation to determine the extent of the contamination risk. 45 Clause 7(2) of SEPP 55 provides that before determining an application for consent to carry out development that would involve a change of use on any land specified in subclause (4), the consent authority must consider a report specifying the findings of a preliminary investigation of the land concerned in accordance with the contaminated land planning guidelines (the Guidelines). 46 Clause 7(3) of SEPP 55 provides that the applicant for consent must carry out the investigation required by cl 7(2) (a preliminary investigation) and provide it to the consent authority. 47 The subject land was land specified in subclause 7(4)/c) because: (a) the DA proposed development for residential purposes; (b) the Willoughby Local Planning Panel had no knowledge of whether development for a purpose referred to in Table 1 of the Guidelines had been carried out on the subject land prior to the construction of the existing office building in around 1974; (c) immediately prior to 1974, the subject land had a business zoning under Willoughby Planning Scheme Ordinance. therefore it would have been lawful to carry out development for at least one purpose referred to in Table 1 of the Guidelines. namely development the purpose of a service station. 48 The Second Respondent did not provide the First Respondent with a preliminary investigation in breach of subclause 7(3) of SEPP 55. 49 The First Respondent did not consider a preliminary investigation before deciding to grant the Consent. in breach of subclause 7(2) of SEPP 55.
2. These two grounds require consideration of whether (and, if so, how) cl 7 of SEPP 55) should have applied to the Company's DA. The terms of the clause in SEPP 55 were at the date of the Planning Panel's decision: 7 Contamination and remediation to be considered in determining development application (1) A consent authority must not consent to the carrying out of any development on land unless - (a) it has considered whether the land is contaminated, and (b) if the land is contaminated, it is satisfied that the land is suitable in its contaminated state (or will be suitable, after remediation) for the purpose for which the development is proposed to be carried out, and (c) if the land requires remediation to be made suitable for the purpose for which the development is proposed to be carried out, it is satisfied that the land will be remediated before the land is used for that purpose. (2) Before determining an application for consent to carry out development that would involve a change of use on any of the land specified in subclause (4), the consent authority must consider a report specifying the findings of a preliminary investigation of the land concerned carried out in accordance with the contaminated land planning guidelines. (3) The applicant for development consent must carry out the investigation required by subclause (2) and must provide a report on it to the consent authority. The consent authority may require the applicant to carry out, and provide a report on, a detailed investigation (as referred to in the contaminated land planning guidelines) if it considers that the findings of the preliminary investigation warrant such an investigation. (4) The land concerned is - (a) land that is within an investigation area, (b) land on which development for a purpose referred to in Table 1 to the contaminated land planning guidelines is being, or is known to have been, carried out, (c) to the extent to which it is proposed to carry out development on it for residential, educational, recreational or child care purposes, or for the purposes of a hospital - land - (i) in relation to which there is no knowledge (or incomplete knowledge) as to whether development for a purpose referred to in Table 1 to the contaminated land planning guidelines has been carried out, and (ii) on which it would have been lawful to carry out such development during any period in respect of which there is no knowledge (or incomplete knowledge).
3. As can be seen from the terms of each of these grounds as noted above, the fashion in which the Applicant proposes that cl 7 of SEPP 55 is engaged are distinctly differently pleaded. Each ground, therefore, would require separate consideration for the purpose of considering the conclusion to be drawn as to what obligation (if any) had been imposed by SEPP 55 on the Planning Panel for the purposes of its consideration of the Company's development proposal and the extent to which (if applicable), a Planning Panel had failed to discharge the obligation imposed on it by cl 7 of SEPP 55.

The potential application of the decision in El Khouri to Grounds 5 and 6

Introduction

1. Although the Company's written submissions concerning the Court of Appeal's decision in El Khouri proposed that application of that decision required that I dismiss Grounds 5 and 6 as they arise from fresh evidence setting out matters not available (but potentially available from the Applicant) to the Planning Panel, dismissal was therefore appropriate.
2. Therefore, it is first necessary to consider whether or not the decision in El Khouri acts to preclude consideration of these two grounds. To address this (before moving on to any potential consideration of the merits of the matters raised in Grounds 5 and 6), it is necessary to set out, first, the relevant positions concerning: 1. the public submissions made concerning the Company's development application; 2. the Council officer's assessment report; 3. the Planning Panel's consideration and determination; and 4. the evidence now adduced by the Applicant in support of Grounds 5 and 6.

The public submissions

1. It is relevant, in a Hound of the Baskervilles sense, with respect to the Applicant's Grounds 5 and 6 that there is no recording of any submission being made concerning the Company's proposed development application suggesting that issues of contamination required to be considered (noting that the Applicant was one of the submitters to the Council concerning the Company's original development proposal).

The Council officer's assessment report

1. The assessing officer's report advised the Planning Panel that the Company's development application did not involve any excavation. The only matters concerning any potential for contamination on the site were those suggested by the assessing officer's proposal that condition 53 be included in the recommended conditions of consent. This condition is in the following terms: Unexpected finds protocol 53. An unexpected finds contingency plan should be incorporated into site redevelopment works. In the event that previously unidentified contaminated soils or materials were identified during site redevelopment, work should cease in the immediate vicinity in the affected area isolated to minimise disturbance. A suitably qualified contaminated site consultant should be engaged to assess the degree, type and extent of contamination and establish a suitable remediation plan. The site manager/landowner shall notify the Council in writing when they become aware of any contamination. (Reason: Environment & Health Protection).

The Planning Panel's determination

1. The Planning Panel's reasons for determination (Exhibit A, folios 274 to 280) make no mention of any consideration being given by the Planning Panel to matters of contamination. The conditions imposed by the Planning Panel incorporated the above condition recommended in the assessment report.

General introduction to the approach to Grounds 5 and 6

1. With respect to the evidence upon which the Applicant seeks to rely in support of Grounds 5 and 6, that evidence comes from the evidence (both written and oral) given by him and the evidence (again, both oral and written) given by Mr Barry, an engineer commissioned by the Applicant to provide expert evidence of his assessment of the extent of the required excavation necessary for the carrying out of the Company's proposed development.
2. I have earlier summarised the contents of the Applicant's objection submission made to the Council concerning cl 6.7 of the LEP (the complaint underpinning Ground 2. It is sufficient, for the purposes of these two grounds, to note that the Applicant made no mention of any potential contamination of the site.
3. An examination of the remaining public submissions as summarised by the Council's assessing officer makes no mention of the potential for contamination on the site.

Introduction

1. The Applicant provided affidavit evidence concerning his knowledge of what he said was the extent of potential and actual contamination of the site, with that contamination arising from the existence of a petrol storage tank in the vicinity of the north‑eastern corner of the site near Timms Lane and the existence of a refuelling bowser at that location drawing from that tank for the purposes of refuelling vehicles associated with a former owner of the site. He was cross-examined on his affidavit evidence. The Applicant's affidavit and oral evidence are relevant to my consideration of each of grounds 5 and 6.

The Applicant's affidavit evidence

1. In his affidavit of 18 February 2022, the Applicant addressed the question of potential contamination of the Company's site at paragraphs 1 to 12. These paragraphs of his affidavit were in the following terms: 1. I am the sole director of Castle Constructions Pty Ltd (Castle) whose business address is Suite 35, Ground floor, 135‑145 Sailors Bay Road, Northbridge and Applicant in these proceedings. 2. In 1994‑96 Castle, under my supervision, undertook developing and constructing the present building located at 137‑145 Sailors Bay Road Northbridge known as Castlegardens (the Castlegardens property). The western boundary of that property adjoins the eastern boundary of 131 Sailors Bay Road Northbridge (the Helm property). 3. The Castlegardens property consists of two underground basement floors, one commercial floor at ground/street level, and 4 residential floors above. The two basement floors and, to a lesser extent, the ground floor, are built with zero setback from the common boundary with the Helm property. 4. In early 1995, at about halfway through the excavation stage for the Castlegardens property, it became necessary to consider drilling for rock anchors along the common boundary with the Helm property. For that purpose correspondence was exchanged between Castle and the owners of the Helm property at the time, Dermeg Pty Limited, which to my recollection was a subsidiary of the A W Edwards Group. Annexed to this affidavit and marked "A", "B", "C", "D", "E" and "F" respectively are six letters from that correspondence. 5. Since about 2 March 1995 when I read the letter in Annexure "F", I was aware of the presence of an underground fuel tank in the unbuilt upon area at the north‑east corner of the Helm property. Before that date, and since about the early eighties, when I used to drive or walk through Timms Lane to purchase goods for Castle's business from the hardware outlet which occupied the Castlegardens property before it was redeveloped During those trips, I became aware of the presence of a fuel bowser at the north‑east corner of the Helm property. That bowser was located adjacent to the eastern side of the driveway serving the lower parking level in the Helm Property, approximately 5‑6 metres from the eastern and northern boundaries of that property. Annexed to this affidavit and marked "G" is a photograph which I took on 27 December 2021. Marked by me on that photograph, with the letter 'X', is, to the best of my recollection, the location of the fuel bowser, before it was removed, at the north‑east corner of the Helm property. 6. Annexed to this affidavit and marked 'H' is a copy of a photograph taken in about September 1996 by a valuer engaged by the Uniting Church (NSW) Trust Association as intending mortgagee of the Castlegardens property in which the fuel bowser can be seen. The valuer was Mr Terry Ponton of Ponton Valuation Services. The valuation report which had that photograph in it is Valuation Report No V‑275 dated 7 July 1999. If required, a full copy of that report can be provided subject to the unrelated and commercially sensitive information in it being redacted. I have searched Castle's archived records for a better photograph of that area but was unsuccessful in finding one. 7. In about the middle of 1995, when the excavation for the Castlegardens development was in its final stages, I distinctly recall seeing dark liquid material oozing from the vertical cut excavation along the common boundary with the Helm property adjacent to the unbuilt upon area at the north‑east corner of that property. I also recall the oozing material had a fuel smell to it. Annexed to this Affidavit and marked "I" is an extract of a plan on which I have shown the location of the area where I observed the oozing from the Helm property. 8. Since the building on the Castlegardens property was completed, in about early 1997, Castle retains premises on the ground floor and runs its business from there. Those premises face Timms Lane and have direct access to and from it. Access to the parking areas is also from that lane. 9. From about 1995 to the present day, I drive in Timms Lane and walk in it several times a day. During those times, and until about 1999‑2000, I noticed the fuel bowser referred to in paragraph 5 above. I occasionally saw vehicles park next to that bowser and put fuel in their vehicles. To the best of my recollection these vehicles were company vehicles for the AW Edwards Group. To the best of my recollection, that bowser was removed in about 1999‑2000. 10. Since I became aware of the existence of the underground fuel tank in the north‑east corner of the Helm property, I have not observed its removal or any decontamination work associated with its use or presence. 11. I recalled the existence of the fuel bowser in about mid December 2021. After considering and reviewing my files, I raised the issue with my legal representatives who wrote to the Second Respondent's solicitors on 24 January 2022 raising the issue. Annexed and marked "J" is a copy of email 24 January 2022 from Bruce Woolf of Woolf Associates to Ben Salon of Mills Oakley. Annexed and marked "K" is email reply of 2 February 2022 from Mr Salon to Mr Woolf. 12. Annexed and marked "L" is a report prepared by Gerard Barry, consulting structural Engineer which I seek to rely in support of the motion to amend the Amended Summons and in relation to the substantive issue raised in the amendment concerning failure to consider contamination.

The Applicant's oral evidence on contamination

1. Mr Galasso cross‑examined him on matters relating to and arising from the above extract of the Applicant's affidavit evidence. This cross‑examination took place on the second day of the hearing and portion of exchange is relevant in my consideration of Grounds 5 and 6. The first portion of the Applicant's oral evidence involved questioning about the process by which he had become aware of development consent being granted to the Company, and his commencing of these proceedings. It is not necessary to reproduce that cross-examination as it is not relevant to the question of contamination.
2. However, Mr Galasso did question the Applicant extensively concerning matters relating to contamination. It is necessary, in the present context, to reproduce the entirety of that element of the Applicant's oral evidence, although somewhat lengthy. The relevant portion of his oral evidence was in the following terms (Transcript, 2 November 2022, page 119, line 9 to page 126, line 35): GALASSO: When you came to prepare this objection, did you read the development application? WITNESS: I don't know what you mean, reading the development application. GALASSO: Well, you made some submissions about‑‑ WITNESS: Did I have a look at it? GALASSO: ‑‑something. WITNESS: Yes. GALASSO: Did you read the development application? WITNESS: I read ‑ I read the approval. The development application is a big document. GALASSO: Yes, but you can't have read the approval on 22 November 2022, Mr Lahoud. WITNESS: Sorry, sorry, sorry ‑ yep‑‑ GALASSO: The approval hadn't been issued yet. WITNESS: This is ‑ this is the ‑ yep, I'm mixing up the dates here. This is when the ‑ this is when the application was ‑ was advertised publicly. And this was in response to that, yes. GALASSO: You read the plans and you read the statement of environmental effects. WITNESS: I had ‑ I had a look at the plans. I didn't read all the statements of the ‑ of the environmental effects, but I had a look at the plans. GALASSO: And you were aware that the statement of environmental effects dealt with the matter of SEPP55. WITNESS: I don't recall. I don't recall that now. GALASSO: You know what SEPP55 is, don't you? WITNESS: It's about contamination. GALASSO: Contamination. WITNESS: Yes. GALASSO: It's the contamination‑‑ WITNESS: Yes. GALASSO: ‑‑environmental planning instrument. A. Yep. GALASSO: And tell me this, after your brother Youseff told you about the approval, did you access the panel's decision on the internet after that? WITNESS: I tried. GALASSO: You knew it was there didn't you? WITNESS: I didn't know it was there. I tried to see if it was there. I'm not sure if I was successful or not but I ‑ I did get a copy later. I'm not sure how much later, of the reasons‑‑ GALASSO: And the copy you got was before 15 July, wasn't it? WITNESS: I ‑ I ‑ I'm not certain. GALASSO: But how can you say you're not sure if you got the panel's decisions or not? You were significantly interested in the decision, were you not? WITNESS: Yes. GALASSO: And Youseff told you that there'd been an approval subject to conditions which require the developer to submit amended plans. WITNESS: Yes. GALASSO: That interested you to know what that was. WITNESS: Yes, I wanted to know what the amendments were, of course GALASSO: And did you have a copy of the Assessment Report that went before the panel before the panel meeting? WITNESS: I did read it in the note of ‑ in the council report, yes. GALASSO: And you were aware that it dealt you were aware that it dealt with contamination and SEPP55 as well. WITNESS: I'm not sure that it did. GALASSO: Sorry? WITNESS: I am not sure that it did. GALASSO: So, that's your recollection, is it? WITNESS: That's my recollection, yes. GALASSO: So, if someone else read it and formed the view that it did deal with SEPP55, would you agree that it addressed SEPP55? WITNESS: It would be their opinion, of course. GALASSO: Well, it dealt with the topic of contamination, did it not? The word "contamination" was in the report. WITNESS: If you can take me to it, it probably might recall my memory more. I'm not sure what ‑ what part you're taking me to. DOCUMENT SHOWN TO WITNESS GALASSO: What I'm troubled about, Mr Lahoud, is if you go to the folder now. WITNESS: Yes. GALASSO: There's a tab that's tab 42, which is your first affidavit. WITNESS: Yes. GALASSO: And in paragraph 11, you tell His Honour that you recalled the existence of the fuel bowser, that you deal with in the affidavit, in about mid December 2021. Do you see that? WITNESS: Sorry, which‑‑ GALASSO: paragraph 11, on a page that's got "892" at the bottom of it. WITNESS: Yes. GALASSO: First sentence, "I recall the existence of the fuel bowser in about mid December 2021". Now, there was nothing preventing you recalling the existence of the fuel bowser before mid December 2021, was there? WITNESS: Of course, there was. There were 25 years. This ‑ this happened 25 years before. So, it was‑‑ GALASSO: Well, what happened? Did you just wake up in mid December 2021 and go, "Oh, now I remember the fuel bowser"? WITNESS: No. I was just ‑ it's a continuous process of thinking about things‑‑ GALASSO: You were aware of the fuel bowser when you read the DA. Correct? WITNESS: Which date? GALASSO: You didn't mention the fuel bowser in your letter of objection, did you? WITNESS: I ‑ no, I didn't. GALASSO: You didn't tell Mr Boston about it in your letter of objection, did you? WITNESS: No. GALASSO: You didn't even tell your legal team about it until after they'd commenced proceedings in this court. Correct? WITNESS: That ‑ that is, I would say it's right, yes. GALASSO: And you knew full well about the fuel bowser, you just elected to not tell anyone about it until December 2021. WITNESS: That is ‑ that is incorrect. GALASSO: Well, let's look at‑‑ WITNESS: If I had ‑ if may say this. If I had recalled it then, I would have mentioned it as one of the issues. GALASSO: What was it that jogged your memory in mid December 2021? WITNESS: Just looking at old documents and old files which weren't that accessible at the time. They took time to read and to obtain. GALASSO: Let's look at what you say about these old files. In paragraph 4, you tell his Honour about a series of correspondence between you and the then directors of the subject land in relation to your development of the land to the east, correct? WITNESS: Which took place in early 1995. Yes. GALASSO: No, I appreciate that. But the correspondence was about you undertaking the redevelopment of your land, correct? WITNESS: It was GALASSO: You're excavating the site. WITNESS: It was during construction of the ‑ of the project. Yes. GALASSO: One of the matters that you needed to do was some rock anchors that went into the subject site. WITNESS: That's correct. GALASSO: In response to that, you say in paragraph 5 that there was a letter that came from Dermeg, this is page 903, that said, this is in the second paragraph "Any rock bolting at the near boundary is impossible, due to the proximity of a fuel storage tank." You see that? WITNESS: Yes. GALASSO: That was in March 1995. You then say in paragraph 7 that in the middle of 1995 when the excavation was in its final stages, you distinctly recall seeing dark liquid material oozing. You see that? WITNESS: Yes. GALASSO: Now between the letter that's 2 March and the middle of 1995, your builder or your engineers had in fact installed the rock anchors, hadn't they? WITNESS: I ‑ I am not sure. I'll just need to go back and ‑ and check some dates, which I can't recall now. GALASSO: So if it was the final stages of the excavation in the middle of 1995, one possibility is that the rock anchors went in and perforated the tank. WITNESS: It's possible, but I don't believe it happened. GALASSO: If it's the case that you did see dark liquid material oozing from the vertical cut, you didn't tell the next‑door neighbour about it, at all, did you? WITNESS: The next‑door neighbour being GALASSO: Dermeg (sic) WITNESS: No, I didn't. GALASSO: You never told anyone about the oozing material. WITNESS: I ‑ I'm not sure if told anyone or not, but I don't recall telling them, no. GALASSO: See, the fact is that until you put it in your affidavit on 18 February 2022, you have never told anyone about the concept of seeing dark liquid material oozing from the vertical cut excavation. Or that the oozing material had a fuel smell to it, did you? WITNESS: I didn't. No. GALASSO: Never. WITNESS: I didn't say never. GALASSO: You didn't report it. WITNESS: But I don't recall telling anyone. GALASSO: You didn't report it to anyone. WITNESS: I didn't report it to anyone. GALASSO: And it was coming off the adjacent site, may we take it if smelt fuel and saw it was oozing material, did you consider whether that was their site contaminating your site? WITNESS: Yes. GALASSO: You didn't do anything about it, though, did you? WITNESS: I didn't, no. GALASSO: And that's because it's not true, is it? WITNESS: That's your opinion. GALASSO: No, I'm asking you the question. I'm putting by you Mr Lahoud WITNESS: No, it was. It was true. GALASSO: that you are lying in your affidavit. And you are lying because other than one paragraph in an affidavit many, many years after the event, you've never told anyone, you've never actioned it, you've never reported it, and that's because this is simply untrue, isn't it? WITNESS: It is true. It's very true. GALASSO: No report from any engineer. WITNESS: ..(not transcribable).. GALASSO: No observation from a builder. Nothing like that at all. WITNESS: I ‑ I am the builder. I was the builder. GALASSO: No report from an engineer or an excavating contactor or anything like that. WITNESS: No. GALASSO: Just you telling his Honour for the first time on 18 February 2022 well after the proceedings have been commenced, that there was oozy, smell, coming from next door. WITNESS: Yes. GALASSO: The site you were developing was the site of an ex‑service station, was it not? WITNESS: I ‑ I know that now. Yes. GALASSO: You didn't know it at the time? WITNESS : No, I didn't. GALASSO: Well you know it now, don't you? WITNESS: I do. GALASSO: Do you think that the ooze might have been ooze that came of your site onto the adjacent site which if there was ooze, was oozing back into the cut, because you'd excavated next to the subject site? WITNESS: Can you repeat that. GALASSO: Sorry? WITNESS: Can you repeat the question. GALASSO: Yes. Your site was a service station site. WITNESS: Yes. Yes. GALASSO: You excavated your site. WITNESS: Yes. GALASSO: That permitted on your representation material to ooze from the next‑door site. It's the case, is it not, that the excavation could have permitted contamination that came from your site, to come back onto your site. WITNESS: I don't believe it. Because the ‑ the ‑ the observation that I had at the time and the location of where it was coming from did not suggest to me that it was from ‑ from the site of the building that I was building. GALASSO: When you saw it in mid‑1995, you certainly didn't go back to Dermeg and tell them that their tank was leaking, did you? WITNESS: I did not, no. GALASSO: Or that you didn't go back to Dermeg and say "there's black ooze that smells like fuel that's coming from your site". WITNESS: I ‑ I did not. I did not. GALASSO: And again, that's because it's untrue, isn't it? WITNESS: No, not because it's not true. I just did not want to make a big deal about it. GALASSO: What, about oozing material that had a fuel smell to it? WITNESS: Yes. GALASSO: Didn't want to make a big deal about it? WITNESS: Yes. GALASSO: Does that make any sense? WITNESS: It does to me. GALASSO: The extent in this affidavit, and I want you to familiarise yourself with this affidavit, so I want you just to quickly look at paragraphs 1 through to 12, and I want to ask you this question, that to the extent that you describe fuel smells and ooze, that's described in paragraph 7. WITNESS: Sorry. Is that a question? GALASSO: Yes. I just wanted to check that, when I read your affidavit, when you're dealing with the oozing material and smell, you're dealing with it in paragraph 7. WITNESS: Yes. GALASSO: So that is, you saw the ooze in the middle of 1995, and it had a fuel smell to it. WITNESS: Yes. GALASSO: In this affidavit, you attach a draft report by Mr Barry, correct? WITNESS: Yes. GALASSO: If you go to page 913 ‑ sorry, your Honour, I note the time, but I've just got one more… HIS HONOUR: I'm not going to interrupt this. We'll finish GALASSO: Please the Court. GALASSO: If you go to 913, Mr Lahoud, that's the draft report that you attached to your affidavit, correct? WITNESS: Yes. GALASSO: You read this report for the purpose of attaching it to your affidavit, correct? WITNESS: Yes. GALASSO: I want you to turn to the page that's got 922 on it. WITNESS: Yes. GALASSO: Have you seen this letter before? An incomplete letter, it's the first page of a letter from Mr Woolf to Mr Barry. WITNESS: I may have seen it. I don't recall. It wasn't ‑ It wasn't directed GALASSO: Do you see the second last paragraph? WITNESS: Yes. GALASSO: There's the first sentence, "I'm instructed that the property at 131" et cetera, "underground fuel tank". And then the next bit I want to ask you about. "I'm instructed that the tank, so far as our client is aware, remains in situ, and appears to be leaking as there is a putrid fuel smell that occasionality wafts into the basement of the adjoining property". That's not in your affidavit at all, is it? WITNESS: No. GALASSO: Is that true? WITNESS: It is true actually. GALASSO: Well if it's true, then surely, you would have remembered the tank sometime after mid‑1995 and before December 2021 if there was a smell wafting into the basement of the adjoining property. WITNESS: It wasn't that important to me. GALASSO: Sorry. WITNESS: It wasn't that important to me. GALASSO: Sorry, I'm just trying to work out, Mr Lahoud, what's true. In your affidavit you say you smelt it in 1995. And it's only when we see a letter of instruction from Mr Woolf to an engineer that it's reported that there's a smell wafting into the basement of the adjoining property and also, if we read on, there's a similar smell in the gap between the two buildings. That's not true either, is it? WITNESS: It is true. GALASSO: Well, how long has that smell being going for? WITNESS: It's been ‑ it's ‑ it's not always there. I think it depends on ‑ on weather patterns or something that happens. I don't know what it is. It's occasionally there sometimes. Sometimes it's not there. GALASSO: Persistently since 1995, you would say, do you? WITNESS: It's not ‑ I'm not there all the time. It's only when I ‑ when GALASSO: Only when you turn up. WITNESS: No, not when I turn up. When I have reason to open that gap behind. GALASSO: That would have alerted you to the contamination sufficient to complain about it to the council, wouldn't it? WITNESS: I didn't. GALASSO: No, you didn't. And you waited until December 2021 to raise the matter for the first time, correct? WITNESS: In the context of what's happening, yes. GALASSO: Yeah. And that's because as I've put to you, your assertion that there was an ooze and fuel smell to the ooze in 1995 is patently incorrect. Is it not? WITNESS: It was correct.

Mr Barry's evidence

1. As earlier noted, the assessing officer's report advised the Planning Panel that the Company's proposed development did not involve any excavation. The evidence given by Mr Barry, the engineer commissioned by the Applicant, clearly demonstrates the inaccuracy of this statement. Whilst it is not necessary to set out the details of Mr Barry's analysis of the extent of the demolition of portion of the concrete elements at the rear of the existing structure and of the necessity for excavation, his uncontradicted evidence clearly establishes that the advice given to the Planning Panel by the assessing officer in this regard was incorrect - and incorrect in a fashion significantly more than to a merely trifling extent.

The decision in El Khouri does not apply to Grounds 5 and 6

1. Although the Company's written submissions concerning the Court of Appeal's decision in El Khouri proposed that application of that decision required that I dismiss Grounds 5 and 6 as they arise from fresh evidence setting out matters not available (but potentially available from the Applicant) to the Planning Panel, dismissal was therefore appropriate.
2. I reject this submission. I do so because the triggering basis upon which Grounds 5 and 6 are advanced is the material error in the Council officer's assessment report asserting that there would be no excavation on the site arising as a consequence of the Company carrying out the approved development.
3. The uncontradicted evidence given by Mr Barry demonstrates that the proposition in the assessment report is not correct. The demonstrated necessity for excavation gives rise to the real possibility that Grounds 5 and 6 are made out.

Mr Page's evidence

1. Mr Page is an environmental consultant retained by the Company. On the second day of the hearing, Mr Page was cross‑examined by Mr Robertson in relation to procedural matters arising from cl 7 of SEPP 55 generally. It is appropriate to reproduce in summary the following exchange that took place during the cross‑examination of Mr Page (Transcript, 2 November 2022, page 142, line 36, to page 143, line 21): ROBERTSON: You're familiar with clause 7 subclause (1) of SEPP 55, are you? PAGE: I am. ROBERTSON: The purpose of that clause is to enable the consent authority before any development approval is given to consider whether land was contaminated in the first instance, correct? PAGE: Correct. ROBERTSON: If the land is contaminated, to be satisfied that it's suitable in its contaminated state with or without a remediation for the purpose for which the development is proposed, correct PAGE: Correct. ROBERTSON: First is an inquiry, an investigation. Second is making a judgment as to whether the land is suitable for the purpose for which it is proposed to be used. And in the second judgment that would ordinarily be informed, once the land has been identified as contaminated, by a detailed investigation report, correct? PAGE: Correct. ROBERTSON: Then there's a third step, isn't it there? And that is to consider whether the land requires remediation before the development can be carried out, correct? PAGE: That's correct. ROBERTSON: If there is a decision that the land requires remediation, in the usual course of events, a remediation action plan is prepared, isn't it? PAGE: It is, yes. ROBERTSON: It's prepared before the grant of consent, isn't it? PAGE: Not in all ‑ all occasion. I ‑ I've worked on projects where there have been unexpected finds for instance, and a remediation action plan has been prepared after consent. ROBERTSON: But where contamination is discovered and remediation is necessary, you would expect a remediation action plan to be prepared, even if only in draft, before the grant of consent, wouldn't you? PAGE: That's the approach that most local government areas take these days based on my recent experience.
2. Mr Robertson had the following exchange with Mr Page concerning the conditions imposed by the Planning Panel (Transcript, 2 November 2022, page 150, lines 18 to 45): ROBERTSON: One of the important purposes of clause 7, I suggest, is for worker health and safety on the site. That is, you don't, without knowing whether the site's contaminated, you don't go and drill it or do works on it, demolition, or excavation without ensuring that the workers doing the work have proper protective gear, correct? PAGE: Correct. ROBERTSON: So that if there's a potential for asbestos, they'd be wearing masks, for example, just an example. You'll have to say yes rather than nodding. PAGE: Yes. ROBERTSON: Sorry. Nods don't go down on the transcript. PAGE: I understand. ROBERTSON: Condition C [a condition imposed by the Panel relevant to contamination] does require the manager landowner to notify council when they become aware of any contamination. What does council do when it gets notified? Is there some condition that says Council is to exercise some power, or does it just file the report, or something? PAGE: Well under ‑ under the CLM Act, contamination is defined as something that composes a risk to human health. So presumably if contamination was suspected, it would be investigated to understand if there was a risk, and then there would be a need for a remediation action plan. ROBERTSON: I want to suggest to you that it's a much more sensible course to find out before you do the works whether there's likely to be a risk, so that you can plan against the risk, the contingency of the risk occurring, and you can also manage the works, correct? PAGE: I agree.
3. Mr Robertson submitted that the evidence adduced from Mr Page demonstrated that the mere imposition of conditions was not sufficient to overcome any detriment that may potentially arise from contamination (if any) of the site. He said (Transcript, 4 November 2022, page 225, lines 28 to 34): MR ROBERTSON: Mr Page, or rather the argument sought to be made from Mr Page's evidence is that the imposition of those three conditions was sufficient to overcome any detriment that might be caused by contamination. Mr Page admitted in his evidence that that would not have protected workers unless they knew in advance of doing the work that the materials were contaminated. He admitted that it cut council or the consent authority out of the picture altogether, and, of course, it cut the other persons who might be affected by any contamination, such as the neighbour, out of the picture as well. The imposition of those conditions could only partially reverse the detriment…

Assuming Grounds 5 and 6 are established - exercise of discretion

1. As I have concluded that, if Grounds 5 and 6 were made out, consideration of relevant matters arising going to discretion would cause me not to make any orders intervening with the Company's development consent, I now turn to explain why, on the assumption these grounds are made out, such intervention is not warranted.
2. I therefore consider these grounds solely on the assumption that they are established. Although it was necessary to set out extensive extracts of the Applicant's written and oral evidence relevant to these grounds, it is appropriate to address them on this assumed basis.
3. I am satisfied that Grounds 5 and 6 are appropriate to be addressed on the basis that I assume that, as a matter of law arising from the inaccurate factual assertion made by the Council's assessing officer that there would be no excavation of the site when, as established by Mr Barry's evidence, the Planning Panel's approval of the Company's proposed development approved excavation in the vicinity of the Timms Lane frontage at the rear of the site. I have concluded that, as a matter of discretion with respect to Grounds 5 and 6 that, on the assumption that they are established, it would not be appropriate to make any order impacting on the Company's development consent on this assumed basis. I have reached this conclusion for the reasons that follow
4. I have earlier set out the relevant conditions from those attached by the Planning Panel to its approval where the Planning Panel made provision for what should occur if, during the course of the Company, giving effect to the approval, contamination was discovered on the site.
5. Amongst the matters outlined by Mr Robertson in his opening as to steps which the Company has now taken as part of its preparation for its new development application seeking a further consent for a development (coextensive with that which was approved by the Planning Panel and subject to the present challenge by the Applicant). These SEPP 55 based steps demonstrate that if those investigations disclose anything concerning the state of the site, which would trigger the relevant contamination conditions attaching to the present consent, that triggering will occur despite the fact that the investigation has arisen in the context of a separate, development application (but one identical to that sought to be impugned in these proceedings).
6. In this context, it is also appropriate to note that a Stage 1 Site Investigation report prepared for the Company by JK Environments dated 7 April 2022 was in evidence. In addition, a Detailed Stage 2 Site Investigation report prepared by the same environmental consultancy for the Company was also in evidence. It is appropriate, in this context, to note the terms of the relevant portion of the executive summary of the Stage 2 report. The relevant portion (Exhibit B, Tab 41, Folio 656) is in the following terms: The primary aims of the investigation were to characterise the soil and groundwater contamination conditions. The objectives were to: • Assess the soil and groundwater contamination conditions via implementation of a sampling and analysis program; • Review and update the conceptual site model (CSM); • Assess the potential risks posed by contamination to the receptors identified in the CSM (Tier 1 assessment); • Provide a preliminary waste classification for off-site disposal of soil; • Assess whether the site is suitable or can be made suitable for the proposed development (from a contamination viewpoint); and • Assess whether further intrusive investigation and/or remediation is required. The investigation included a review of site history and site information presented in the JKE PSI, soil sampling from six boreholes and groundwater sampling from two monitoring wells installed at the site. The site was historically used for low-density residential purposes until the 1970s, when it was redeveloped as a commercial (office) building. An underground storage tank (UST) was installed in the northern section of the site sometime during the 1970s to 1980s, and was decommissioned by filling with sand in 1997. The DSI has not identified widespread soil contamination that was assessed to pose a risk in the context of the proposed development. However, the UST, associated infrastructure and backfill soils were identified as a potential point-source of localised contamination, and will require remediation.
7. The environmental consultants also recommended a number of matters as being appropriate to be conducted to render the site suitable for its proposed (and then approved) development. These recommendations were set out in the report on the page following the above extract from the executive summary. The recommendations were in the following terms: Based on the findings of the OSI, JKE is of the opinion that the site can be made suitable for the proposed development. The following is recommended: • Prepare a remediation action plan (RAP) to address the contamination issues identified at the site. This will include an unexpected finds protocol (UFP). The RAP should include validation provisions to address the data gaps outlined in Section 8.3 of this report; • A hazardous building materials survey should be undertaken prior to any demolition required for alterations to the building. Following demolition (and preferably prior to removal of the hardstand), an asbestos clearance certificate should be obtained; and • Undertake a validation assessment documenting the remediation works. A Tier 2 (site-specific) Human Health Risk Assessment (HHRA) may be required to adequately assess risks associated with groundwater and soil vapour impacts, depending on the validation data to be collected under the framework of the RAP.
8. Mr Page's evidence did not lead to any conclusion concerning the adequacy of condition 53 given the new studies commissioned for the Company - his evidence merely confirmed how such a triggering process would operate. Mr Page certainly did not propose that the Planning Panel should have proposed any further conditions on the Company's consent relating to the potential eventuality that any potential contamination would be encountered during construction, in a fashion that would trigger provisions of SEPP 55 in a fashion arising for consideration proposed by Grounds 5 and 6;
9. I have earlier set out the relevant portions of the Applicant's cross-examination concerning contamination as it now arises in the context of Grounds 5 and 6.
10. A fair reading of that transcript discloses that the Applicant was aware of SEPP 55 and its regulating of contamination issues. To the extent that the cross examination addressed matters of contamination which potentially arose from the Applicant's development of the adjacent site to the east, they are not matters requiring exploration for present purposes. It is sufficient to note that, in his responses to Mr Galasso's questioning concerning contamination, he had been advised by the contractors undertaking rock anchor installation work (as part of his construction activities) of the existence of the decommissioned fuel storage tank on the Company's site. It is sufficient to observe that, since early 1995, the Applicant had been aware of the fuel storage tank on the Company site and that he offered no satisfactory or credible answer as to why he did not raise any matters concerning the potential for contamination of the Company's site at any time prior to late 2021 despite his being aware of relevant potential contamination relating matters since 1995.
11. The reliability and credibility of witnesses is well known to be difficult to assess from their demeanour in the witness box and, for that reason, I am generally reluctant to draw conclusions concerning a witnesses' reliability based on such observation. However, in this instance, as this evidence as to the timing of the revealing of contamination issues by the Applicant is of critical importance to my assessment as to whether or not I should (on the assumption that grounds 5 and 6 are made out) interfere with the Company's development consent. On that basis, it is appropriate to record my observations on his giving of his oral evidence..
12. My impression of the Applicant in the witness box is that he was being evasive; generally was not trying to respond to questioning but avoided giving answers that were not of assistance to the case which was being advanced on his behalf; and that he offered no credible explanation why he, as a professional developer who was aware of both factual matters concerning contamination he alleged arose from the Company site and of the strictures imposed by SEPP 55 at the time he lodged his letter of objection to the Council concerning the Company's development, he had not made any mention of contamination issues.
13. I am satisfied that the Applicant has offered no credible explanation whatsoever as to why he had not raised matters of potential contamination with the Council at the time he examined the Company's development application and plans and then objected to them.
14. I am also satisfied that the conclusion appropriate to be drawn from the fact that the Applicant's affidavit and oral evidence concerning such potential as might exist for contamination on the site establishes that these matters were peculiarly within the knowledge of the Applicant.
15. In this context, it is appropriate to note, as I have earlier set out, the matters that were traversed by the Applicant in his submission of objection to the Company's proposed development did not make any reference whatsoever to potential for contamination on the site. That he chose not to do so and that, in these proceedings, issues of potential contamination of the site were not agitated on his behalf in either the Summons commencing these proceedings filed on 14 October 2021 or in the Amended Summons for which leave was given on 27 October 2021 but had to await the service on the Company and the Council of the Applicant's proposed Further Amended Summons (this being recorded as having been filed with the Court on 10 March 2022) is without adequate explanation.
16. These circumstances, whilst not going to the validity of the complaints made by the Applicant in Grounds 5 and 6, are significant for the purposes of my consideration of how the discretion available to me pursuant to s 9.46(1) of the EPA Act should be exercised on the assumption that a proper basis had been established for the validity of Grounds 5 and 6.
17. These matters are, I am satisfied, sufficient, in themselves, not to warrant any intervention in these proceedings on the assumption that Grounds 5 and 6 have been made out.
18. This conclusion is more than amply reinforced by the fact that, although the Applicant's affidavit and oral evidence on the issue of potential contamination clearly demonstrated his awareness of the various factual matters giving rise to the potential existence of such contamination since at least 1995, he remained silent on these matters until he chose to reveal his concerns through the vehicle of his Further Amended Summons and his affidavit addressing contamination matters without any adequate explanation of why he had not raised these matters earlier (despite the fact that he is an experienced property developer).
19. The failure of the Council's assessing officer in the submission in the Council's report to the Planning Panel that there was to be no excavation as part of the Company's development (and, by necessary implication, no triggering need for consideration of matters arising under the SEPP the) does not, in light of the other matters outlined above, constitute a reason to intervene with the Company's development consent on the basis of Grounds 5 and 6.
20. On the assumption Grounds 5 and 6 were to have been established, no relief would be appropriate to be ordered.

Costs

1. As these are conventional civil litigation proceedings, to which r 42.1 of the Uniform Civil Procedure Rules 2005 applies, the presumption is that costs follow the event.
2. The "event" refers to the event of the claim and the practical result of it: Sze Tu v Lowe (No 2) [2015] NSWCA 91 at [39]. Generally, that means an unsuccessful party can be ordered to pay the entirety of the costs of the successful party, even though the successful party did not succeed on all issues: James v Surf Road Nominees Pty Ltd (No2) [2005] NSWCA 296 at [32]
3. A summary of the general principles providing guidance on departing from the general rule (of costs following the event) was set out in Sze Tu at [40] - quoting from Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304 at [38]. That summary [citations omitted] was as follows: • Where there are multiple issues in a case the Court generally does not attempt to differentiate between the issues on which a party was successful and those on which it failed. Unless a particular issue or group of issues is clearly dominant or separable it will ordinarily be appropriate to award the costs of the proceedings to the successful party without attempting to differentiate between those particular issues on which it was successful and those on which it failed. • In relation to trials it has been said that it may be appropriate to deprive a successful party of costs or a portion of the costs if the matters upon which that party was unsuccessful took up a significant part of the trial, either by way of evidence or argument. • If the appellant loses on a separate issue argued on the appeal which has increased the time taken in hearing the appeal, then a special order for costs may be appropriate which deprives the appellant of the costs of that issue • Whether an order contrary to the general rule that costs follow the event should be made depends on the circumstances of the case viewed against the wide discretionary powers of the court, which powers should be liberally construed. • A separable issue can relate to "any disputed question of fact or law" before a court on which a party fails, notwithstanding that they are otherwise successful in terms of the ultimate outcome of the matter. • Where there is a mixed outcome in proceedings, the question of apportionment is very much a matter of discretion and mathematical precision is illusory. The exercise of the discretion depends upon matters of impression and evaluation.
4. Although the Applicant has succeeded (or is to have been assumed for the purposes of my consideration of matters of discretion to have succeeded in establishing three of the six grounds advanced in his attack on the Company's development consent (although, as a consequence of the exercise of discretion, I have concluded that no interventionist orders should result), the Applicant has also failed on three of the substantive grounds advanced by him. As a consequence, the overall event for the purposes of costs consideration is that the Applicant has been unsuccessful as no relief is to be ordered and his Further Amended Summons is to be dismissed.
5. I have considered whether, under all the circumstances, some apportionment of costs would be appropriate rather than making a simple "follow the event" order as provided by the UCPR - such an apportionment approach being permissible. In my consideration of this possibility, I have considered how I might exercise the costs discretion made available by s 98(1) of the Civil Procedure Act 2005 for the purpose of intervening with the conventional costs outcome given the overall result of these proceedings.
6. I have concluded that, it is appropriate to otherwise order and to undertake an apportionment of the costs based on the outcomes of each of the six grounds pressed in the Applicant's Further Amended Summons and, with respect to the single ground where I had held that the Applicant was successful in establishing a basis for potential intervention (although intervention was not appropriate), I have concluded that a limited measure of apportionment should be ordered.
7. In summary, as can be seen from the earlier detailed discussion:

• the Applicant has failed to establish any basis for upholding Grounds 1, 3 and 4;
• the Applicant has established Ground 2 in circumstances where (a) the Applicant had, in his letter of objection to the Council, specifically pressed the failure to comply with cl 6.7 of the LEP as a basis why the Company's development application could not be approved and (b) the Applicant succeeded on this ground (albeit with me declining to intervene as a matter of discretion); and,
• although the Applicant is to be assumed as succeeding in establishing Grounds 5 and 6 (for the purpose of considering what might arise from that - although not obtaining any relief concerning either of them as outcomes), the evidence given by the Applicant personally made it clear that the factual information concerning the potential validity of these grounds was peculiarly known to him rather than generally to the Council's assessing officer or to the Planning Panel and was never earlier conveyed by him to the Council or the Planning Panel.

1. I have therefore concluded that it is appropriate to apportion the costs of the proceedings to reflect the mixed nature upon which the Company has seen off the Applicant's challenges to the Company's development consent.
2. The appropriate apportionment should be that the Applicant is entitled to some limited discounting of the otherwise relevantly applicable costs outcome to reflect the circumstances of the Applicant's success on Ground 2. Given the circumstances backgrounding my assumption of the Applicant's establishing of Grounds 5 and 6 but this not having any resultant intervention outcome, I am satisfied there is no basis to provide any costs relief for the Applicant with respect to those two grounds.
3. The overall costs outcome which I am satisfied should arise in the circumstances of these proceedings is that the Applicant should pay 80% of the Company's costs of the proceedings as agreed or assessed.

Conclusion

1. I have concluded that the Applicant has made out Ground 2 and I have also concluded that, with respect to Grounds 5 and 6, I should proceed on the basis of an assumption that these grounds have been established.
2. With respect to all three of these grounds, I have concluded that, on a proper consideration of the facts and circumstances relating to each of them, it is appropriate that I exercise the discretion given to me by s 9.46(1) of the EPA Act and, as a consequence of exercising this discretion, I have determined that it is not appropriate to make any intervention order arising from any of these three grounds with respect to the Company's development consent.
3. As I have concluded, in addition, that the Applicant has not established Grounds 1, 3 and 4, the consequence of my overall findings is that the Applicant's Further Amended Summons must be dismissed.

Orders

1. It therefore follows that the orders of the Court are: 1. to the extent necessary, pursuant to r 59.10 of the Uniform Civil Procedure Rules 2005, the Applicant is granted an extension of time until 14 October 2021 to commence these proceedings; 2. the Further Amended Summons is dismissed; 3. the Applicant is to pay 80% of the Second Respondent's costs of the proceedings as agreed or assessed; and 4. the exhibits are returned.

Annexure A.pdf 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. Decision last updated: 02 November 2023