Northern Beaches Council v Tolucy Pty Ltd

The background facts

1. The Commissioner summarised the relevant background facts concerning the Company's proposed development at [4] to [13] and [15] of his decision, as follows: 4 The current site consists of one allotment legally described as Lot 368 in DP 752017, known as 58 Laitoki Road, Terrey Hills with a total site area of 19,536m2. The site is located on the north western corner of the intersection of Laitoki Road which forms the eastern boundary of the site, and Cooyong Road which forms the site's southern boundary. 5 The site is generally a rectangular shaped allotment, with the exception of the western boundary that is splayed in deference to the meandering alignment of Neverfail Gully Creek beyond. 6 The site slopes steeply, and unevenly, from a high point at the intersection of Laitoki Road and Cooyong Road, with an overall fall of around 28m to the western boundary adjacent to Neverfail Gully Creek. 7 Neverfail Gully Creek is identified as a waterway and Riparian Lands in the Warringah Development Control Plan 2011 (WDCP). 8 The site contains areas of the Duffy's Forest Endangered Ecological Community that is listed in Sch 2 of the Biodiversity Conservation Act 2016 as having high retention value (Ex N). 9 Both Cooyong Road and Laitoki Road are sealed roads with no line marking and a grass and gravel verge in place of a kerb and gutter. 10 The closest bus stop to the site is located on Myoora Road at Terry Hills Public School at a walking distance of around 500m-550m from the intersection of Laitoki Road and Cooyong Road. A public bus route map is shown in Exhibit L, Appendix B. 11 The Terrey Hills town centre is located on Booralie Road at a distance of around 850m to the east of the site. 12 A Site Compatibility Certificate (SCC) (Ex S, Folio 824-825) was issued by the Acting Deputy Secretary of the Department of Planning and Environment, under delegation of the Secretary, on 14 July 2017. Schedule 1 of the SCC described the use as follows: "To permit self-care dwelling, bed [sic] residential care facility, community facilities and ancillary services and basement carparking for seniors living at 58 Laitoki Road, Terrey Hills." 13 Sch 2 of the SCC states the requirements imposed on determination in the following terms: "The final layout, building construction and onsite facilities in the proposed seniors housing development will be subject to the resolution of issues relating to: • access to services and facilities via appropriate pedestrian and public transport facilities; • building bulk and scale • flora and fauna issues • land slip issues • flooding • traffic; and • potential contamination" … 15 Following notification of the original development application on 26 October 2018, the Council received more than 170 submissions in response to the proposal, and a further 125 submissions were received following the notification of the amended development application on 27 April 2019.

The addendum to the decision

1. On 12 July 2019, by addendum (later set out) to his decision of 21 June 2019, the Commissioner recorded the provision of further information from the Company; made further, short findings based on it; and made orders granting the Company development consent for the proposal in the then amended form before him - making it subject to the conditions that (now) form Annexure A to his decision.

Introduction

1. The Council has appealed pursuant to s 56A of the Land and Environment Court Act 1979 (the Court Act) against the Commissioner's decision. Such appeals are limited to ones on questions of law as can be seen from the terms of the section which reads: 56A Class 1, 2, 3 and 8 proceedings - appeals to the Court against decisions of Commissioners (1) A party to proceedings in Class 1, 2, 3 or 8 of the Court's jurisdiction may appeal to the Court against an order or a decision of the Court on a question of law, being an order or a decision made by a Commissioner or Commissioners. (2) On the hearing of an appeal under subsection (1), the Court shall: (a) remit the matter to the Commissioner or Commissioners for determination by the Commissioner or Commissioners in accordance with the decision of the Court, or (b) make such other order in relation to the appeal as seems fit. (3) Notwithstanding subsection (1), an appeal shall not lie to the Court under that subsection in respect of a question of law that has been referred to, and determined by, a Judge pursuant to section 36.
2. As later set out in detail, the Council has pleaded 10 grounds in the Summons commencing its appeal. The Council proposes that this appeal ought to be upheld and the Class 1 appeal dismissed on the basis of Appeal Ground 6, being the ground concerning "reasonable access". If this ground fails, then the Council presses nine other grounds as material errors which should have the Commissioner's decision set aside, with the Class 1 appeal to be remitted to a differently constituted Court.

The orders sought in the Amended Summons commencing the appeal

1. The orders sought in the Amended Summons commencing the appeal were in the following terms: 1 If required notwithstanding rule 7.1(1)(a) of the Land and Environment Court Rules 2007, the time for filing of the summons commencing this appeal under UCPR rule 50.3(1)(a) is extended to 14 August 2019. 1A Appeal allowed. 2 The 21 June 2019 decision and 12 July 2019 orders of Commissioner Horton are set aside. 3 Leave is granted to the respondent to amend the application for development consent to rely on the amended plans that were identified in Condition 1(a) of Annexure A to the decision of Comissioner Horton, being the conditions referred to in paragraph 175(3) of the 12 July 2019 addendum. 4 If the appeal is allowed on bases that include Appeal Ground 6, order that the Class 1 appeal be dismissed. 5 If the appeal is allowed on bases that do not include Appeal Ground 6, the proceedings are remitted to a Commissioner or Commissioners (other than Commissioner Horton) to be determined in accordance with the Court's reasons for judgment. 6 The respondent is to pay the appellant's costs of the appeal.

Extension of time to commence this appeal

1. The question of whether or not an extension of time was required to commence the appeal was heard and determined by Duggan J (Northern Beaches Council v Tolucy Pty Ltd [2019] NSWLEC 151). Her Honour granted the short extension of time required for the commencement of the appeal.

The grounds of the appeal

1. The Council has pleaded 10 separate grounds of appeal. It is appropriate to set out, in full, all the grounds of appeal raised by the Council. The grounds are in the following terms: 1 The Commissioner erred on a decision on a question of law in that he prejudged, giving rise to a reasonable apprehension of bias, the outcome of his consideration of the matters he was required to consider under subclause 27(2) of State Environmental Planning Polcy (Housing for Seniors or People with a Disability) 2004 (SEPP HSPD) by indicating that he proposed to grant consent to the proposal (decision at [174]) before he received evidence that he had found was required to undertake his consideration of the matters required by subclause 27(2) of SEPP HSPD (decision at [143], [147], [170], [171] and [174(1) and (2)]). 2 Further or in the alternative to Appeal Ground 1, if the Commissioner's findings at [174] constituted a decision to approve the proposal on 21 June 2019, the Commissioner erred on a decision on a question of law by failing to take into account a mandatory consideration in that he made the decision to approve the proposal (decision at [174]) before he undertook his consideration of the matters required by subclause 27(2) of SEPP HSPD, because he made that decision before he received evidence that he found was required to undertake his consideration of the matters required by subclause 27(2) of SEPP HSPD (decision at [143], [147], [170], [171] and [174(1) and (2)]). 3 The Commissioner erred on a decision on a question of law in that he failed to afford procedural fairness to the respondent below because he sought further evidence from the applicant below (decision at [174(1) and (2)]), after finding that he proposed to approve the proposal anyway (decision at [174]), without affording to the respondent an opportunity to respond to that evidence. 4 The Commissioner erred on a decision on a question of law by failing to disclose reasons, adequately or at all, on a material issue in the proceedings, being why he approved the proposal notwithstanding Council's position on contention 3A that the Court should consider the resident submissions on bushfire in the course of undertaking the task required by subsection 27(2) of SEPP HSPD and refuse to grant consent to the proposal on that basis; including because all the findings the Commissioner made on 21 June 2019 relating to bushfire were to the effect that the information before him did not fully address Council's contention or matters of concern raised by the Commissioner (decision at [143], [147], [170] and [171]). 5 The Commissioner erred on a decision on a question of law by failing to reach, or failing to evidence the reaching of, the satisfaction required by subclause 24(2) of SEPP HSPD, which was a jurisdictional pre-requisite to the exercise of power to grant consent, in that: a. the Commissioner failed to address Sch 2 of the site compatibility certificate insofar as it required the final development to resolve "access to services and facilities via appropriate pedestrian and public transport facilities" (Council's Submissions dated 22 May 2019 at [12], [42]-[51] and [138]-[139]; Statement of Facts and Contentions at [16] and Contentions 1); b. the Commissioner did address Sch 2 of the site compatibility certificate insofar as it required the final development to resolve bulk and scale (decision at [165] and [167] - albeit that Council did not submit that this requirement applied only if he chose to rely on the certificate); c. if a requirement of the site compatibility certificate was not satisfied the effect was that the certificate did not certify that the development to which it relates was compatible with surrounding land uses and the Commissioner was not capable of reaching satisfaction as to the matter required by subclause 24(2) (Council's Submissions dated 22 May 2019 at [47]-[51]); and d. there is no evidence that the Commissioner, having addressed the matter in (b) but not (a) and having been made aware of the matter in (c), satisfied himself of the matter required by subclause 24(2). 6 The Commissioner erred on a decision on a question of law in that he misdirected himself and misapplied clause 42 of SEPP HSPD in finding (decision at [96]) that the applicant's proposed conditions of consent (conditions 84A and 93), including public positive covenant condition, were written evidence in sufficient detail to satisfy the Court that residents of the serviced self-care housing would have reasonable access to the services required by clause 42, because: a. clause 42 required the Commissioner to be satisfied when the application was determined that residents of the serviced self-care housing will have "reasonable access" to the relevant services in their homes, whereas Condition 93(g) (and through it condition 84A) largely repeated the terms of clause 42 and so left what constitutes "reasonable access" to be determined at a time after the consent is issued; and b. except for the conditions of consent, there was no evidence as to the basis on which (such as how, when or how frequently) residents of the serviced self-care housing would have access in their homes to the services otherwise provided to the residential care facility on the same lot. 7 The Commissioner erred on a decision on a question of law in that he did not reach the satisfaction required by clause 44 of SEPP HSPD in respect of the bus service because it was not enough that the Commissioner was satisfied under clause 43 that the bus service will be provided to the serviced self-care housing (decision at [92] and [97]) as the Court also had to be satisfied that the bus service would be available to residents when the housing is ready for occupation. 8 The Commissioner erred on a decision on a question of law by misdirecting himself as to the task required under section 4.15 of the Environmental Planning and Assessment Act 1979 in connection with character, compatibility with the locality, neighbourhood amenity and streetscape, or so failed to apply himself to the question that the law prescribed under that section that in approving the proposal he constructively failed to exercise the jurisdiction that he was required to exercise under section 4.16 of the Environmental Planning and Assessment Act 1979, in that: a. the Commissioner relied on the site compatibility certificate issued under SEPP HSPD when undertaking the considerations under section 4.15 of the EP&A Act (decision at [165]), whereas subsections 4.15(1)(b), (c) and (e) required the Commissioner to make his own assessment of the likely impacts of the development in the locality, the suitability of the site for development and the public interest, and subclause 24(3)(b) of SEPP HSPD precluded a site compatibility certificate from limiting the matters to which a consent authority must otherwise have regard (if clause 24 was ever capable of having such effect); b. the Commissioner wrongly considered that he was only required to satisfy himself that the requirements in Sch 2 to the site compatibility certificate were satisfied if he considered himself bound by the site compatibility certificate (decision at [165] - which was not the Council's submission), which he proceeded to do, so that he wrongly precluded himself from undertaking relevant considerations under section 4.15 of the EP&A Act or acted under dictation by abdicating those considerations to the site compatibility certificate; c. the Commissioner misstated the task required of him (decision at [44] - which was not the parties' submission) as being to grant consent if the development application complied with the relevant provisions of the Warringah Local Environmental Plan 2011; d. the Commissioner's conclusions on Contention 5 were confined to satisfaction that the requirements in Sch 2 to the site compatibility statement were met (decision at [167]), satisfaction that reliance on landscaping was appropriate in the setting (decision at [169]), and satisfaction that the form and layout of the proposed development was developed with consideration of the site and that the proposed development demonstrates adequate regard was given to the design principles in Div 2 of SEPP HSPD as required by clause 32 (decision at [168]); and e. the Commissioner failed to disclose reasons, adequately or at all, on why the proposal was approved having regard to the broader material contentions raised regarding character, compatibility with the locality or with the local environment, neighbourhood amenity and streetscape, which is a different question from whether the development has been developed with consideration of the site or whether adequate regard has been given to the SEPP HSPD design principles or whether reliance on landscaping was appropriate. 9 The Commissioner erred on a decision on a question of law in that he misconstrued and misapplied clause 26 of SEPP HSPD, and so misdirected himself in considering the exception submission under clause 4.6 of Warringah Local Environmental Plan 2011 (decision at [114]-[116] and [125]), because he took the underlying objective of clause 26 to be to ensure that the future residents of the development will have access to all services and facilities required by the clause that they would reasonably require (decision at [123] and [125]) which is inconsistent with the terms of clause 26 and the broader objectives of that clause. 10 The Commissioner erred on a decision on a question of law in finding that clause 26 of SEPP HSPD does not apply to serviced self-care housing (decision at [98]).

Relevant statutory provisions

1. Various provisions of the Environmental Planning and Assessment Act 1979 (the EP&A Act); the SEPP; and the LEP require to be considered in addressing the various grounds of appeal pleaded by the Council. The appropriate course, rather than reproducing a compendium of the relevant provisions at this point in my decision, is to set them out, as relevant, when addressing the individual ground pressed by the Council.

The nature of s 56A appeals

1. Mr Stafford, barrister for the Council, adopted the principles applying to a s 56A appeal, as have been set out Tanious v Georges River Council [2016] NSWLEC 142 at [10] by Pepper J and Hoy v Coffs Harbour City Council [2015] NSWLEC 132 at [4] by Pain J. He emphasised that an important point restated in each of these decisions is that such an appeal must concern a question of law and not merely raise questions of fact.
2. Mr Robertson SC, for the Company, submitted that several further important principles also applied to s 56A appeals, these being that: 1. The Court should not read the reasons of a commissioner with an eye attuned to error (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272, citing Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at [37]); 2. A commissioner's decision should not be read as if written by a lawyer (Brimbella Pty Ltd v Mosman Municipal Council (1985) 79 LGERA 367 (Brimbella) at 368); and 3. Such decisions should be read as a whole, such that a "verbal slip or infelicity of expression does not necessarily warrant drawing an inference of an error of law": Council of the City of Sydney v Base Backpackers Pty Ltd (2015) 208 LGERA 342 at [57].
3. It is to be observed that the various above propositions are unexceptional. However, for these proceedings, each of the 10 grounds pleaded by the Council require considered examination to establish whether or not the basis for complaint raises, and then establishes, error going beyond the benign approaches warranted by the propositions advanced above by Mr Robertson.

Introduction

1. Grounds 1 to 4 concerned Contention 3A of the Amended Statement of Facts and Contentions, being the bushfire grounds. As a consequence, it is convenient to group these grounds together for the purposes of consideration. The Council's Contention 3A before the Commissioner was in the following terms: 3A Bush fire risk management The proposal ought be refused because it has not been supported by sufficient information to demonstrate that the site is appropriate for the type of the development proposed and the residents' safety in the event of bush fire. Particulars: a) The site is located on land that is within the vicinity of land identified on a bush fire prone land map certified under section 10.3 of the EP&A Act (being the Warringah Bush Fire Prone Land Map) as "Bush fire prone land - vegetation category 1", "Bush fire prone land - vegetation category 2" and "Bush fire prone land - vegetation buffer". The DA has not been supported by sufficient information (i.e. a bush fire report) to demonstrate that the bush fire solution is adequate or appropriate for the site, and to enable consideration to be given to the matters specified in clause 27(2) of SEPP (HSPD). b) The residents of the proposed 90 bed RACF and 48 self-contained dwellings would add additional pressure during emergency and evacuation. c) Access for (15 tonne) firefighting vehicles around the proposed buildings has not been demonstrated. Perimeter access has not been demonstrated, nor has a perimeter road been provided. Controls: - Section 10.3 of EP&A Act and Warringah Bush Fire Prone Land Map - Clause 27(2) of SEPP (HSPD)
2. The relevant element of the SEPP, contained in cl 27(2)(h), is in the following terms: 27 Bush fire prone land (1) … (2) A consent authority, in determining a development application made pursuant to this Chapter to carry out development on land in the vicinity of land identified on a bush fire prone land map certified under section 10.3 of the Act as "Bush fire prone land - vegetation category 1", "Bush fire prone land - vegetation category 2", "Bush fire prone land - vegetation category 3" or "Bush fire prone land - vegetation buffer", must take into consideration the general location of the proposed development, the means of access to and egress from the general location and other relevant matters, including the following - …, (h) the nature, extent and adequacy of bush fire emergency procedures that are able to be applied to the proposed development and its site,
3. The terms of the grounds of appeal as pleaded were earlier set out at [14]. Mr Stafford's written submissions to me conveniently provided a summary of each of the grounds pressed by the Council. For Grounds 1 to 4, that summary was that the Commissioner had: (a) pre-judged the mandatory considerations regarding bushfire under subclause 27(2) of State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 (SEPP HSPD) by finding on 21 June 2019 that he proposed to grant consent to the development before he had evidence that he said he required to undertake those considerations (Appeal Ground 1) or, if the effect of his decision on 21 June 2019 was to actually approve the proposal, he failed to consider the mandatory considerations under subclause 27(2) before he granted approval (Appeal Ground 2); (b) failed to afford procedural fairness to Council by seeking further evidence from the Respondent to this appeal (Tolucy) on bushfire, after deciding to approve the proposal anyway, without affording to Council an opportunity to respond with its own evidence or submissions except insofar as those submissions concerned conditions (Appeal Ground 3); (c) failed to disclose reasons as to why he decided to approve the proposal notwithstanding Contention 3A regarding bushfire, because all of the findings he made on bushfire were to the effect that the information before him did not fully address Council's contention or other matters of concern raised by the Commissioner (Appeal Ground 4) - Council had submitted that the Court should consider the resident submissions on bushfire in the course of undertaking the task required by subsection 27(2) of SEPP HSPD and refuse to grant consent to the proposal on that basis;

The relevant elements of the Commissioner's judgment

1. In his decision delivered on 21 June 2019, the Commissioner said, at [174]: 174 For the reasons already stated, I propose to grant consent to the development. …
2. However, critical to these grounds in the Council's appeal, the Commissioner continued, in [174], saying: … However as the parties require my findings in order to settle an agreed set of conditions, the Court directs that within 14 days of these orders: (1) The applicant is to provide an assessment that details the effect of achieving a BAL rating of 12.5 to the RACF, including any implications for building design, material selection, landscaping or the like (2) The applicant is to provide a detailed report on the nature, extent and adequacy of bush fire emergency procedures that are able to be applied to the proposed development and its site, as set out in cl 27(2)(h) of the SEPP HSPD. (3) The parties to settle the preferred approach to the Cooyong Road verge, noting my comments at [172]. (4) The parties are to confer and to settle conditions. (5) In the event that the parties cannot agree terms of any of the conditions, the parties have leave to approach the Registrar to relist the matter before me for short arguments about the conditions at issue.
3. On 12 July 2019, the Commissioner attached an addendum to his 21 June 2019 decision. The addendum incorporated orders granting the Company development consent for the RACF and the ILU facility at the site subject to conditions. The addendum reads: Addendum made on 12 July 2019 175 In accordance with the terms of my directions in [174] of my judgment of 21 June 2019, the parties provided me with the following: (1) Expert report prepared by Building Code & Bushfire Hazard Solutions dated 1 July 2019 comprising a bushfire design impact response; (2) Proposed draft Bushfire Emergency Management Plan prepared by Building Code & Bushfire Hazard Solutions filed on 2 July 2019; (3) An agreed set of conditions of consent filed on 9 July 2019 containing conditions responsive to the reports prepared by Building Code & Bushfire Hazard Solutions. 176 I am satisfied that the reports and conditions of consent respond to my findings and that consent to the application should be granted on the basis that the development be carried out in accordance with those amended plans. As a result and in accordance with those findings, I am therefore satisfied that consent to the development application should be granted subject to conditions of consent. 177 The Court orders that: (1) Leave is granted to the applicant to amend the application for development consent, by relying on the information and the amended plans identified in Condition 1(a) of Annexure 'A'. (2) The appeal is upheld. (3) Development consent is granted for DA 2018/1752 for a 90 bed Residential Aged Care Facility providing beds to dementia and respite care patients and 48 Serviced Self-Care Housing dwellings together with basement car parking, landscaping and ancillary works, subject to the conditions in Annexure 'A'. (4) The exhibits are returned, except for Exhibits A, LL and 7.

The Council's position

1. Mr Stafford submitted that the development should have been refused because the evidence did not demonstrate that the site was appropriate for residents' safety in the event of bushfire, a consideration that was required by cl 27(2) of the SEPP.
2. He further submitted that the Commissioner had prejudged bushfire‑related matters or, in the alternative, failed to consider bushfire‑related matters. He highlighted four elements in the Commissioner's decision, in which the Commissioner indicated that he did not consider that he had all the necessary information to make a determination. Those elements were set out in Mr Stafford's written submissions at [17] as being: (a) at [143] - the factors for consideration in clause 27(2) were "to some extent" addressed in Exhibit DD; (b) at [170] - the Council's contention in relation to inadequate provision for fighting bushfire would appear to be "partially addressed" by Tolucy in the form of the RFS letter (referred to earlier at [139]) and the report of Tolucy's bushfire expert (referred to earlier at [147]); (c) at [171] - the RFS letter and the report of Tolucy's bushfire expert pre-date the final amended plans (and the proposed BAL rating condition) so that it was his view that the Court requires greater confidence in the nature, extent and adequacy of bush fire emergency procedures that are able to be applied to the proposed development and its site as set out in cl 27(2)(h) of SEPP HSPD; and (d) at [174(2)] - Tolucy was directed to provide a detailed report on the nature, extent and adequacy of bush fire emergency procedures that are able to be applied to the proposed development and its site, as set out in cl 27(2)(h) of SEPP HSPD.
3. Despite these identified deficiencies, the Commissioner had said, at [174] as earlier noted: For the reasons already stated, I propose to grant consent to the development.
4. Mr Stafford put that the Commissioner was purporting to grant consent in the future without first receiving all the evidence that he said he was required to consider for the purposes of cl 27(2)(h). The Commissioner therefore prejudged these mandatory considerations (Appeal Ground 1). Such action represents apprehended bias, a proper ground founding a s 56A appeal: Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118 (Initial Action) at [139].
5. In the alternative, this statement by the Commissioner amounted to a decision to approve the development before taking into consideration the mandatory considerations in cl 27(2)(h) (Appeal Ground 2). Mr Stafford submitted that Appeal Ground 2 is the more likely correct position, as the Commissioner did not evince any intention that he might change his mind in response to any further information received. This scenario is to be contrasted with Ku-ring-gai Council v Bunnings Properties Pty Ltd [2019] NSWCA 28 (Bunnings Properties), in which Preston CJ found that the Commissioner had indicated that a path adverse to that applicant would be taken if the new evidence did not remedy the deficiencies; those circumstances did not represent a purported use of power to grant or refuse consent.
6. A failure to consider a matter that the decision-maker is required to consider is an error on a question of law: Warkworth Mining Ltd v Bulga Milbrodale Progress Association Inc (2014) 86 NSWLR 527; [2014] NSWCA 105 (Warkworth Mining) at [4].
7. The Commissioner sought further evidence from the Company in regard to Contention 3A, without allowing Council any opportunity to put on any evidence in reply. Upon evincing an intention to grant approval and requesting additional information from only the Company, a denial of procedural fairness crystallised (Appeal Ground 3). The fact that Council did not pursue any relisting to deal with this matter is irrelevant to the issue of whether the Commissioner denied the Council procedural fairness. A failure to accord procedural fairness is an appealable error of law: Warkworth Mining at [5]; Wechsler v Sydney City Council (No 2) [2015] NSWLEC 35 at [13]; Mike George Planning Pty Ltd v Woollahra Municipal Council (No 3) [2014] NSWLEC 123 at [72]. It is unusual that a denial of procedural fairness will not result in the Court granting relief.
8. The Commissioner did not give reasons why he was satisfied that the development ought to be approved, notwithstanding the gaps in evidence in regard to cl 27(2) (Appeal Ground 4). The lay evidence given by the local residents on site revealed considerable concerns about bushfire in the locality. It was not possible for an objective observer to discern how the Commissioner approved the proposal in light of the bushfire considerations.

Grounds 1 and 2

1. Mr Robertson submitted that, whilst the Commissioner stated on 21 June 2019, "I propose to grant consent to the development", he prefaced this statement with the view that he did not yet have all the information to grant consent. In literal terms, the Commissioner merely stated a proposal.
2. Mr Robertson advanced the proposition that approval was actually given in the addendum dated 12 July 2019, whereby the Commissioner satisfied himself of the additional reports and conditions of consent. This is inconsistent with the assertion by Council that the Commissioner decided to grant consent on 21 June 2019.
3. Commissioners are able to make interim findings, subject to the submission of additional information. These findings may be found at the conclusion of merits hearings: Bunnings Properties at [173]. There may be public benefits in promoting the practical resolution of merits appeals by way of interim judgments: Maxnox Pty Ltd v Hurstville City Council (2006) 145 LGERA 373; [2006] NSWLEC 146 (Maxnox) at [57].
4. The Commissioner was not purporting to give an "amber light" judgment. Nevertheless, interim decisions to refuse and interim decisions to approve cannot be distinguished meaningfully.
5. Consequently, if the Commissioner did not decide to approve the proposal on 21 June 2019, then Grounds 1 and 2 must fail.
6. Ground 1 must also fail because the interim decision does not amount to prejudgement. The Commissioner's view was open to change. Council submitted that the phrase "I propose to grant consent to the development" indicated a fixed and irrevocable decision to grant consent. Such an approach entails reading the phrase as if written by a lawyer, being an unacceptable approach: Brimbella.
7. Ground 2 must also fail because the obligation to take environmental planning instruments into account arises at the point of determination. If it is accepted that approval was given on 12 July 2019, then all the information required by cl 27(2) was before the Commissioner.

Ground 3

1. The submissions made for Council that there was no utility in approaching the Court after 21 June 2019 (since the decision had allegedly been made) is incorrect. Indeed, a listing had been made for 2 July 2019 for argument about conditions and the resolution of any outstanding matters. On Council's request, this listing was vacated. Mr Robertson submitted that Council was bound by the way it conducted its case below.

Ground 4

1. A decision-maker is only required to give reasons to state "the grounds which have led him or her to the conclusions reached concerning disputed factual questions and to list the findings on the principal contested issues": Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 (Soulemezis) at 259. This does not require the decision-maker to respond to every fact or law raised in argument: Housing Commission v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378.
2. The only bushfire‑related contention was Contention 3A. Mr Robertson put that: This contention was concerned with failure to provide adequate information, rather than with bushfire risk per se. (emphasis in original)
3. Council abandoned this contention at hearing, leaving the Commissioner to consider the merits under cl 27(2). Mr Robertson elaborated, stating: At one point counsel for the Council claimed that the bushfire contention "maintained on the basis of the residents' experience evidence that was given on site", but this was in substance a different contention: it was "scary".
4. This was not a principal contested issue. It was not the subject of any pleaded contention or expert evidence. If the Commissioner intended to decide the matter based on a factor not raised in the contentions, then procedural fairness would require notification to the Company: Boral Cement Pty Ltd v SHCAG Pty Ltd [2013] NSWLEC 2013 at [35]-[36]. Failure to give reasons for issues not raised in Council's contentions therefore does not constitute an error of law: Soulemezis at 259.
5. Regardless, the Commissioner sufficiently demonstrated that Contention 3A was resolved in the Company's favour, at [136]-[147], [170]-[171] and [174] of the substantive judgment. The Company was invited to remedy deficiencies identified. The inference that is created here is that apart from these deficiencies, the Commissioner was satisfied of the documentation. Therefore, once the inference is accepted, the Commissioner's reasons contain a complete examination of how Contention 3A was resolved.
6. With regard to the additional information provided, he submitted that "the sufficiency of the additional information was not in contest, so there was no obligation to provide reasons for accepting it".

The Council's response to the Company's submissions

1. Contrary to the Company's submissions, the Council did not change its course in respect of Contention 3A. At no point did the Council submit that the issues raised by Contention 3A issue were resolved. The Council did not accept that the Company had provided sufficient information to enable a merits assessment with regard to cl 27(2). Further, Contention 3A was not limited to considerations of cl 27(2), as satisfaction of Contention 3A required demonstration that the matters in the whole of the contention had been addressed. The provision of information, which cl 27(2) required to be considered, involved only part of the process of demonstrating resolution of the matters raised by the contention. Contention 3A remained at issue.
2. The theoretical possibility that the Commissioner may have refused approval following the provision of the requested evidence by the Company is irrelevant to the question of apprehended bias. A complaint based on, and established by, actual past conduct or comments is sufficient to found apprehended bias.
3. With respect to Appeal Grounds 1 to 2, none of the authorities advanced by the Company support its argument. It was not the case where the Commissioner was expressing a preliminary view and inviting the parties to respond. The Commissioner indicated his intention to approve the proposal and invited the Company only to provide evidence that would support his announced course. The calling for evidence to support an already disclosed decision discloses apprehended bias.
4. In his oral submissions in reply, Mr Stafford conceded that (2) of the Commissioner's findings at [174] was partly directed at dealing with the conditions of consent. However, they were also directed at the task of assessment required by cl 27(2)(h). On the issue of cl 27(2) (Transcript, 25 March 2020, page 7, lines 13 to 15), he submitted: Nowhere did the commissioner identify in the decision that council had in fact sought refusal on the basis of the bushfire contention. Ultimately, nowhere was that addressed.
5. With respect to Appeal Ground 3, authority stands for the proposition that a person with an interest in a decision is not always required to show what would have occurred if they had been accorded procedural fairness: Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326 at [58]-[59]. The Company has not provided any authority that shows that it was incumbent upon the Council to take additional steps outside of the directions to ensure procedural fairness was accorded to it. It is unclear what steps the Council could even have taken, as relisting was not an "applicable procedure" in this context.
6. With regard to Appeal Ground 4, the Company incorrectly asserts that the Council abandoned Contention 3A at trial and that the Council accepted that the information required by cl 27(2) had been provided. The only consideration of cl 27(2) evident in the decision lies at [176], in which it is not possible to discern why the Commissioner approved the proposal.
7. In his oral submissions in reply, Mr Stafford also pointed to the extensive involvement and consideration of the neighbours' concerns as evidence that Council had not dropped the bushfire contention. He had made the following submissions to the Commissioner (Transcript, 22 May 2019, page 61, lines 3 to 25): Finally in terms of effectively the fifth reason as to why the proposal ought be refuse is that we maintain contention 3(a), which is the bushfire contention, on the basis of the submissions that were made by the residents at the hearing. The residents spoke forcefully with a collection of experience evidence, effectively, about their experiences in connection with bushfire in that locality. In my submission, that's relevant to the task that you're required to undertake under s 27(2) of SEPP HSPD. You heard evidence in connection with how close bushfires had come to the subject site and people's concern about embers. You've obviously been given evidence by the applicant in exhibit DD dealing with that but I'd ask that you consider the evidence in exhibits 2 and 7 as well as what you've heard and ultimately the summary of the evidence of the residents so as to, council would say, refuse to grant consent for the proposal on the basis of the bushfire risk. I accept that there's nothing in s 27(2) that requires you to reach that conclusion. They are merely considerations but it is open to you, in my submission, in undertaking the considerations under s 4.15 of the EP&A Act, considering those submissions to determine that you are not satisfied in connection with some matter relating to bushfire. I would summarise the residents' evidence as saying that it was scary. They're the bases on which I say the proposal should be refused.
8. He submitted to me (Transcript, 25 March 2020, page 10, lines 25 to 42): In addition, it's not apparent from the reasons that have been given why the commissioner, having found in paras 170 and 171 that the information before him wasn't sufficient to undertake the mandatory considerations required by cl 27(2), why it was that the learned commissioner was then satisfied in cl 176 that what he had received led to it being appropriate for approval. I have to acknowledge, if direction 2 had only been dealing with conditions para 176 would have been an entirely appropriate finding in the context of conditions. But that wasn't what was happening here. The commissioner left himself, after making the decision, to determine - either determined in para 174 finally the application or left himself to determine to consider the cl 27(2)(h) considerations after receiving the evidence. If he did that, he did that in circumstances where he'd already indicated that he proposed to grant consent. For those reasons I say the reasons that were purportedly given in para 176 do not shed light on why it is that the commissioner decided not to refuse the proposal in the face of the submissions on contention 3A and why the commissioner changed his position notwithstanding what he had said in paras 170 and 171.

Grounds 1 and 2

1. I have earlier set out the terms of cl 27(2)(h) of the SEPP. It is to be noted that, in the element of the Commissioner's decision giving rise to this complaint by the Council, he had said (at 174) - emphasis added by me: 174 For the reasons already stated, I propose to grant consent to the development. However as the parties require my findings in order to settle an agreed set of conditions, the Court directs that within 14 days of these orders: (1) … (2) The applicant is to provide a detailed report on the nature, extent and adequacy of bush fire emergency procedures that are able to be applied to the proposed development and its site, as set out in cl 27(2)(h) of the SEPP HSPD.
2. The complaint made by the Council in Ground 1, of prejudgement, must be viewed in light of the earlier paragraphs relied upon by the Council in support of this ground.
3. The first of the preambular sentences in [174] of the Commissioner's decision was only qualified to the extent that that which followed was said to be necessary for the purposes of settling the conditions of the development consent which he proposed to grant. It is clear, in the way that element had been written, that the Council's complaint based on Initial Action is well‑founded. The proposition advanced on behalf of the Company that the Commissioner had merely made interim findings subject to the submission of additional information is rejected.
4. What was proposed in Bunnings Properties was an opportunity provided to an applicant to amend an application in response to concerns raised by the adjudicating commissioner. That is not the case here. The statement by the Commissioner, at the commencement of [174], was a specific and precise intention to grant consent, with the only conditionality being that which related to the conditions upon which that would occur.
5. Similarly, the Company's reliance on Maxnox at [57] is misplaced. The concluding sentence of the paragraph upon which reliance is placed is in the following terms: 57 … That may sometimes be achievable through an interim judgment, which gives an applicant the opportunity to amend its application before the Court pronounces its final judgment.
6. Although the Commissioner's July 2019 addendum was based on conditions of consent responsive to the additional Bushfire Emergency Management Plan provided by the Company (175 and (3)), this falls short of the approach taken in Bunnings Properties where a further hearing took place based on the proposed amendments.
7. In addition, the short discussion following from [57] in Maxnox made it clear that the context was whether or not a response to the findings that were made on an interim basis would result in the necessity for an amended development proposal so different from that which was then before the Court that it would be inappropriate to permit that course to be followed.
8. In this instance, the Commissioner made an unconditional statement that he proposed to grant development consent on the basis of an as yet to be provided document that would satisfy the necessity of him taking into consideration that which was required by cl 27(2)(h) of the SEPP.
9. The sufficiency or otherwise of the additional material is irrelevant in the context where the Commissioner had unequivocally stated that he was going to give consent - a statement made prior to, and in anticipation of, the provision of that material.
10. The consequence of the course of action embarked upon by the Commissioner in [174] of his decision provides a proper foundation for upholding Ground 1, in that the Commissioner determined to grant development consent without having a proper evidentiary basis to permit him to have taken into consideration the matters required by cl 27(2)(h), with such taking into consideration being a mandatory necessary prerequisite to the granting of consent to the Company's development proposal.
11. Grounds 1 is made out. As Ground 2 was pleaded by the Council in the alternative to Ground 1 and I have upheld Ground 1, it is not necessary to address it. However, against the event that my approach to Ground 1 is in error, I would uphold Ground 2 in the alternative.

Ground 3

1. The complaint asserting that the Council had been denied procedural fairness by the Commissioner in that there had been no opportunity for the Council to address the additional evidence provided by the Company concerning bushfire issues can be disposed of in short compass. It raises no great matter of principle. The general propositions espoused on behalf of the Company on this point are correct.
2. The regime established by the Commissioner by virtue of 174 of his June 2019 decision provided a basis upon which the matter could be relisted before the Commissioner to address the detail of bushfire issues to be incorporated in conditions of consent. Indeed, the matter was so relisted for 2 July 2019, but that relisting was vacated at the request of the Council.
3. Although the specific opportunity to relist was expressed by the Commissioner to be a confined one, had the Council exercised the right provided for by the Commissioner, nothing would have prevented those representing the Council at such a relisting from putting the proposition to the Commissioner that the Council should have an opportunity to deal with the merits of the material subsequently noted by the Commissioner in [175] as having been provided on behalf of the Company to address bushfire issues.
4. As submitted on behalf the Company, the Council is bound by the forensic decision below not to exercise the opportunity to relist the matter and, at such relisting, propose to the Commissioner that it wished to be heard in a broader sense than had been provided for in the framework of the Commissioner's decision at [174(5)].
5. The Council failed to avail itself of the (limited) opportunity clearly left open to it, expressly, by the Commissioner - an opportunity where the Council could have requested to be heard further on bushfire matters. It cannot now complain about the consequences of its forensic decision not to take advantage of that opportunity.
6. Ground 3 is rejected.

Ground 4

1. On the first day of the hearing, Mr Robertson noted, with respect to the bushfire contention (Transcript, 20 May 2019, page 25, lines 27 to 33): But as you heard this was added to the SOFAC a couple of weeks ago, this issue. It hadn't arisen between us and council, although it had been a concern of the residents from last year, but apparently not for council, and it became an issue - I think it might have been the panel.
2. In his opening submissions to the Commissioner, Mr Stafford summarised the bushfire issue in the following terms (Transcript, 21 May 2019, page 13, lines 46 to 49): Contention 3A is the bushfire risk management contention. The contention as framed, as you will be aware, was that cl 27(2) of SEPP HSPD, effectively that there wasn't any material provided that would have enabled you to undertake the consideration required under cl 27(2) of SEPP HSPD.
3. In Mr Stafford's subsequent, more lengthy opening submissions, he addressed, relevantly, the outstanding concerns relating to bushfire at page 21 of the transcript of 21 May 2019. It is unnecessary to quote the entirety of what was put to the Commissioner; it is sufficient to note that, at lines 26 to 35 on that day this passage make it clear that there did, in fact, remain a significant contest between the Council and the Company before the Commissioner concerning bushfire issues.
4. In this context, I am unable to accept the submission advanced on behalf of the Company that this was not a principal contested matter.
5. I have earlier set out, at [26], the four locations in the Commissioner's decision where the Council had submitted that the Commissioner had acknowledged the inadequacy of the information available to him for the purposes of considering cl 27(2)(h) of the SEPP. An examination of each of those elements of the Commissioner's decision confirms that he had indicated that he did not have a full suite of necessary information for him to be satisfied that, in taking into consideration location and access/egress from the relevant locality, appropriate bushfire emergency procedures were able to be applied to the proposed development and its site.
6. The language used by the Commissioner in directing the Company to provide a detailed report as specified by the Commissioner in [174(2)] clearly demonstrated that, as at 21 June 2019, he did not have adequate evidence concerning bushfire matters but that he had decided to approve the proposed development despite the inadequacy of the material then available to him on this topic.
7. The Commissioner provided no adequate reasons (indeed, no reasons at all) as to why he had reached this decision, given his acknowledgements of the inadequacy of the material before him on this topic.
8. Reasoning as to why the bushfire information (acknowledged to be deficient) was nonetheless sufficient to enable proper consideration of this issue (as required by cl 27(2)(h) of the SEPP) was absent. As earlier noted at [41], Mr Robertson relied on portion of a passage from the decision of Kirby P in Soulemezis at 259. The full text of the relevant passage is: But the judicial obligation to give reasons, and not to frustrate the legislative facility of appeal on questions of law, at least obliges the judge to state generally and briefly the grounds which have led him or her to the conclusions reached concerning disputed factual questions and to list the findings on the principle contested issues.
9. The position with respect to the Commissioner's addressing of the bushfire issues can be seen as one where the Commissioner acknowledged the inadequacy of the information before him, but provided no explanation as to why he should conclude that he should approve the proposed development - doing this in a fashion where he did not explain why the inadequacies of the bushfire information did not act as an impediment to him doing so. He has stated the conclusion but no grounds for supporting it. It is the absence of any relevant explanation that gives rise to the complaint in this ground, a complaint which is well-founded.
10. Ground 4 is upheld.

Introduction

1. The SEPP provides, in cl 24(2) that: (2) A consent authority must not consent to a development application to which this clause applies unless the consent authority is satisfied that the relevant panel has certified in a current site compatibility certificate that, in the relevant panel's opinion - (a) …, and (b) development for the purposes of seniors housing of the kind proposed in the development application is compatible with the surrounding environment having regard to (at least) the criteria specified in clause 25(5)(b).
2. The SEPP also provides, in cl 25(7), that: A certificate may certify that the development to which it relates is compatible with the surrounding land uses only if it satisfies certain requirements specified in the certificate.
3. The Certificate included Sch 2, a schedule in the following terms, under the heading "Requirements imposed on determination": 1. The final layout, building construction and onsite facilities in the proposed seniors housing development will be subject to the resolution of issues relating to: • access to services and facilities via appropriate pedestrian and public transport facilities; • building bulk and scale; • flora and fauna issues; • land slip issues; • flooding; • traffic; and • potential contamination.
4. Mr Stafford's written submissions summarised Ground 5 as being that the Commissioner had: (d) failed to reach (or evidence) the satisfaction required by subclause 24(2) of SEPP HSPD, which was a jurisdictional pre-requisite to the exercise of power to grant consent - the Commissioner addressed this partly insofar as "bulk and scale" in the Sch 2 requirements to the site compatibility statement was concerned, but failed to consider the Sch 2 requirement in respect of "access to services and facilities via appropriate pedestrian and public transport facilities" and failed to evidence the satisfaction required by subclause 24(2) (Appeal Ground 5)

The Council's submissions

1. Mr Stafford submitted that, as the Commissioner had failed to evidence satisfaction of one aspect of the matters mandated by the Certificate (cl 24(2) and cl 25(7) of the SEPP), the power to grant consent was not enlivened. This subclause concerns the presence and validity of a current site compatibility Certificate. He submitted that requirements in Sch 2 to the Certificate were not satisfied, therefore cl 25(7) of the SEPP operated to preclude the Certificate certifying that the development to which it relates is compatible with the surrounding land use. Building bulk and scale, as well as access to services and facilities, were requirements within Sch 2 of the Certificate. These issues were raised in Council's Amended Statement of Facts and Contentions.
2. The decision-maker failed to explain why he had reached the conclusion there was satisfaction of cl 24(2) of the SEPP. Schedule 2 of the Certificate contained requirements dealing with public transport facilities and pedestrian access. Whilst two dedicated buses were included in the development proposal, there is nothing that evidences connection with the public transportation network or pedestrian facilities. Since requirements of the Certificate were ultimately not met, cl 25(7) does not permit the use of the Certificate to satisfy cl 24(2).
3. However, Council conceded that there was no dispute as to the validity of the Certificate, merely as to whether cl 24 was in fact satisfied. Mr Stafford submitted (Transcript, 19 March 2020, page 27, lines 27 to 30 and 36 to 39): There is no finding anywhere in the judgment as to whether the commissioner was satisfied that any of the material of evidence before him satisfied the other requirement of the SCC in connection with access to services relevantly via pedestrian links and public transport… I also note in 47 that the Sch 2 requirements via appropriate pedestrian and public transport facilities were squarely put in issue in the submissions but failed to be addressed.
4. It is to be noted that the reference to "47" in the above extract is to [47] of Mr Stafford's written submissions, a paragraph relevantly in the following terms: … Sch 2 to the SCC imposes a number of requirements relating to resolution of issues concerning access to services and facilities, building bulk and scale, flora and flora issues, landslip issues, flooding, traffic and potential contamination.

The Company's position

1. Mr Robertson submitted that the error alleged by Council in its fifth ground, being the Commissioner's approach to the requirements of the Certificate, was misconceived. In his written submissions, at [48], he submitted that: … the only matters about which the Commissioner needed to be satisfied were that: 1 there was a SCC; and 2 the SCC certified that, in the author's opinion, a. the site was suitable for more intensive development, and b. the development was compatible with the surrounding development having regard to the criteria specified in clause 25(5)(b). Read literally, this is not an evaluative power but a power which must be exercised if there is in existence a certificate of a certain description.
2. Later, on this point, he said (Transcript, 20 March 2020, page 81, lines 19 to 24): As I said, in reviewing the SEPP, we consider the ground completely misconceived anyway because all the commissioner has to do is to be satisfied that was an SCC and that it certified in the secretary of the department's opinion that the site was suitable and the development was compatible, as it sets out. It didn't involve any evaluative power on the part of the commissioner.
3. He proposed that it was clear that the Commissioner was satisfied of these matters. The terms of the Certificate and cl 24(2) were so close that it would have been redundant of the Commissioner to specifically and expressly state that he was satisfied that the Certificate complied with cl 24(2). The parties were furthermore in agreement as to the efficacy of the Certificate.
4. This ground of appeal represented a challenge to the decision-maker's state of mind. Such a challenge will not succeed simply because the state of mind was not expressed in the terms of the statute. The challenger must show that the decision-maker did not attain the required mental state: Manly Council v BDSI Pty Ltd [2010] NSWLEC 31 (BDSI) at [40]-[41]; Bankstown City Council v Mohamad El Dana [2009] NSWLEC 68 at [27] and [54]; Design Power Associates Pty Ltd v Willoughby City Council (2005) 148 LGERA 233 (Design Power) at [55].
5. The substantive judgment does not support such a conclusion. Council's approach requires the reading of additional words into the clause. Situations where the Court will do so are limited and depend upon a purposive interpretation requiring such an addition: Wentworth Securities Ltd v Jones [1980] AC 74 at [105]-[106]; Taylor v Owners Strata Plan 11564 (2014) 253 CLR 531 at [37]-[40]. Council has not justified why additional words ought to be added and therefore the argument must be rejected.
6. If the Court finds to the contrary, and the Commissioner was required to consider Sch 2 of the Certificate, then failure to reach a state of satisfaction has not been demonstrated.
7. On the issue of access to services, extraordinary detail was given by the Commissioner in his judgment: [65]-[135]. This included a consideration of cll 26, 42 and 43. The basis of Council's submission rested on the lack of express words from the Commissioner stating that he had reached mental satisfaction in this area. Failure to reach mental satisfaction must be found on the basis of the evidence as a whole; a conclusion that could not be founded. If the Commissioner was satisfied with the issues under cll 26, 42 and 43, then the Commissioner would have been tacitly satisfied of the "issues" relating to access to services under Sch 2 of the Certificate.
8. Later, Mr Robertson submitted (Transcript, 20 March 2020, page 82, lines 1 to 4): Yes, the certificate is not a mandatory relevant consideration. If it was intended to make it such, it would've done so. The SEPP makes dozens of things mandatory relevant considerations, but no (sic) the certificate, not the substance of the certificate. It makes the fact of the certificate.
9. Even if the Commissioner had not reached the requisite state of satisfaction mandated by cl 24(2), there would still not be any material error that would justify setting the decision aside: Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123 at [30], [72]; Design Power at [34]. There was no chance that, had he turned his mind to cl 24(2), he would have refused to grant consent based on a failure to resolve access to services. The proposal already complied with cll 26, 42 and 43.

The Council's submissions in reply

1. Mr Stafford submitted that it was not redundant for the Commissioner to express his view on cl 24(2). Whilst the efficacy of the Certificate was not in dispute, satisfaction of the matters required by cl 24(2) was plainly in issue. The Certificate contained conditions that needed to be satisfied before the suitability of the proposed development with the surrounding land use could be established. The Commissioner did not address all of the conditions contained in the Certificate's second schedule.
2. Specifically, the issue of "access to services and facilities via appropriate pedestrian and public transport facilities" was not addressed. Mr Stafford put that the Commissioner was required to consider these matters. Consideration of cl 4.6 of the LEP and cll 26, 42 and 43 of the SEPP did not amount to addressing this requirement.
3. BDSI at [40]-[41] does not stand for the proposition that an appellant must show that the decision-maker attained the required mental state. Whilst Council may be required to demonstrate an error of law for the purposes of s 56A, there is no inherent presumption that the Commissioner reached the required mental satisfaction unless Council shows to the contrary.
4. An inference of failure to consider a matter may be found in the absence of evidence toward the satisfaction of a precondition: Manly Council v Hortis [2001] NSWCA 81; 113 LGERA 321 (Hortis) at [40]. This principle is apt in this case. There is no evidence that the Commissioner was satisfied of the matters raised by cl 24(2). There is no mention in the Commissioner's judgment of the "via appropriate pedestrian and public transport facilities" requirement contained within Sch 2 of the Certificate.
5. Mr Stafford directly disagreed with Mr Robertson's characterisation of cl 24(2), being that the subclause only requires the existence of a certificate in order to be satisfied. Rather, Mr Stafford put that the requirements contained within the Certificate also need to be satisfied, or else they would have no work to do.
6. Since cl 24(2) contains jurisdictional matters, the Commissioner ought to have satisfied himself. Where a view must be formed as a prerequisite to the exercise of power, whether that view has been formed is a question of fact: NSW Aboriginal Land Council v Minister Administering the Crown Lands Act (No 2) [2008] NSWLEC 13 at [76]. Portions of the decision suggest that the Commissioner reached a partial view of Sch 2, but he did not explicitly conclude his satisfaction of the matter in cl 24(2). The Commissioner relieved himself of concern with regard to access to services and facilities by accepting the provision of a community bus. He did not consider pedestrian and public transport facilities, as required by Sch 2. The decision should be set aside because of this failure.

Consideration

1. To the extent that the Commissioner's judgment expressly referred to evidence dealing with Sch 2 of the Certificate, it was noted, under the heading "Character", with the comment at [148] and [149] that: 148 In the interests of providing an overview of the proposed development, the applicant's landscape architect expert, Mr Smart, played vision of a computer generated flythrough to the Court, followed by evidence of the town planning and urban design experts relating to Contention 5 which is, in effect, that the proposal is not compatible with the character of the locality. 149 This is reflected in the requirements imposed on the site by Sch 2 of the SCC which includes the resolution of issues relating to building bulk and scale. To the respondent, failing to meet the terms of the SCC means that the Court cannot be satisfied the proposed development is compatible with the surrounding land uses.
2. To the extent, later, that the Commissioner also expressly addressed Sch 2 of the Certificate in his findings, those findings were, relevantly, at [165] and [167] of his decision. Those paragraphs were in the following terms: 165 The respondent submits that the Court is not bound by the fact that a SCC has been issued when undertaking an assessment under cl 4.15 of the EPA Act. However, in the event the SCC is relied on by me, the respondent asserts that the proposed development does not satisfy the requirements specified in the certificate to resolve building bulk and scale, and so the Court cannot be satisfied under cl 24(2) of the SEPP HSPD. … 167 I am satisfied that the amended plans have adequately resolved building bulk and scale for the purposes of the SCC.
3. In the context of the complaint in this ground, precise attention needs to be given to the chapeau in Sch 2(1) of the Certificate. In this context, what is required is the resolution of issues relating to the topics listed rather than a requirement mandating that access to services and facilities had to be provided via appropriate pedestrian and public transport facilities. The matter to which the Commissioner needed to turn his mind was merely the resolution of issues relating to the topic.
4. As submitted by Mr Robertson, the Council must show that the Commissioner both had not turned his mind to the topic and also had not considered that the matters raised by the bullet point had been appropriately resolved.
5. The Commissioner's decision, at [95] and [97], although in the context of a specific provision of the SEPP (cl 43(1)), said: 95 I consider it relevant that the application was amended to withdraw a proposed subdivision so that the site is to remain a single allotment. The practical effect of this amendment on the provision of services and facilities is that the ILUs and the RACF are likely to be under a single ownership, and a single operator model. … 97 Furthermore, I consider the provision of the bus to have been meaningfully integrated into the development, and not merely proposed by way of condition.
6. As was explained by Pepper J in [40] and [41] of BSDI, a failure to refer expressly to a particular provision is not determinative of demonstrating error. What must be considered is not, in this instance, whether the Commissioner made specific reference to the first bullet point in Sch 2, but whether he considered the substance of the matter referred to in that bullet point and whether the Commissioner had reached the necessary mental state as to the resolution of issues relating to that element of Sch 2.
7. It seems to me that, given that Commissioner's decisions are not to be analysed as if they had been drafted with legal precision (Brimbella), the Commissioner had, by necessary implication, sufficiently applied his mind to this element of Sch 2 of the Certificate, even though he had not made express reference to it. Although this is to be contrasted with his specific addressing of the second bullet point of Sch 2 at [165] to [169], that consideration arose as a separate specific issue rather than one capable of being seen through the lens of another provision of the SEPP.
8. Although, in this present context, the Council acknowledged the requirement for the provision of a facility-operated bus service, its complaint was that there was no connection with the public transportation network or pedestrian facilities considered by the Commissioner. I am not satisfied that he was required to do so within the narrow framework postulated by the Council. He was required to address the resolution of issues relating to the topic and he clearly considered that those issues were appropriately resolved by the provision of the facility‑operated bus service.
9. It is to be observed that there is a degree of overlap between this ground and Ground 8. Ground 8 is separately dealt with later, as consideration of it requires addressing matters in a different contextual setting.
10. Ground 5 is rejected.

Introduction

1. The requirements of the SEPP relevant to this ground are cll 42(1) and 44, provisions in the following terms: 42 Serviced self-care housing (1) A consent authority must not consent to a development application made pursuant to this Chapter to carry out development for the purpose of serviced self-care housing on land that adjoins land zoned primarily for urban purposes unless the consent authority is satisfied, by written evidence, that residents of the proposed development will have reasonable access to - (a) home delivered meals, and (b) personal care and home nursing, and (c) assistance with housework. 44 Availability of facilities and services A consent authority must be satisfied that any facility or service provided as a part of a proposed development to be carried out on land that adjoins land zoned primarily for urban purposes will be available to residents when the housing is ready for occupation. ….
2. Mr Stafford's written submissions summarised this ground as being that the Commissioner had: 5(e) misapplied clause 42 of SEPP HSPD because he was required to be satisfied when the application was determined that residents of the self-care housing would have "reasonable access" to the relevant services in their homes, whereas Tolucy's conditions of consent and public positive covenant condition (conditions 84A and 93(g)) largely repeated the terms of clause 42 and so left what constitutes "reasonable access" to services to be determined at a time after the consent is issued.
3. This is the sole ground pressed by the Council as being a basis why, if upheld, the Company's proposed development should be rejected and the Class 1 appeal dismissed by me (by inference pursuant to s 56A(2)(b)).
4. The paragraph in the Commissioner's decision relevant to this ground is [96]. It is in the following terms. 96 In my view, the applicant's proposed draft conditions of consent, including that a public positive covenant to be registered prior to the issue of any occupation certificate and to the satisfaction of the Council, is written evidence in sufficient detail to satisfy the Court that residents of the proposed development will have reasonable access to the services required by cl 42, and at the time required by cl 44.
5. The conditions of consent to which the Commissioner referred, and which are raised in Ground 6 as pleaded, are reproduced Annexure A to the Commissioner's judgment. They are, relevantly, in the following terms: 84A Public positive covenant and/or restriction on use - transport, access to services, occupants and other matters A public positive covenant and/or restriction on use (as appropriate) shall be created on the title of the land incorporating all of the requirements and obligations set out in Condition 93 below. The terms of the public positive covenant and/or restriction on use are to be prepared to Council's standard requirements, at the applicant's expense, and are to be endorsed by Council prior to lodgement with NSW Land Registry Services. Northern Beaches Council shall be nominated as the party to release, vary or modify the covenant. Details demonstrating compliance are to be submitted to the Principal Certifying Authority prior to the issue of any interim / final Occupation Certificate. Reason: To ensure that the statutory requirements of State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 are met. 93 Transport, access to services, occupants and other matters For the life of the development and at all times, the development is to be operated as follows: … Access to services - serviced self-care housing g) From the time when any housing is first available for occupation, and for the duration of the development and at all times, the occupants of the Serviced Self Care Housing units must have reasonable access to: i. home delivered meals; and ii. personal care and home nursing; and iii. assistance with housework, to be provided by the operator of the Residential Aged Care Facility, or in default by the owner of the land. … Reason: To comply with the requirements of State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004

The Council's submissions

1. Clause 42 of the SEPP requires a consent authority to be satisfied, before consent can be given, that a proposed development will have reasonable access to:

• home delivered meals;
• personal care;
• home nursing; and
• assistance with housework.

1. The formulation of Condition 93(g) of the Conditions of Consent is very similar to cl 42. The wording indicates that the question of "reasonable access" is left to be determined later and by a person other than the Commissioner. However, cl 42 mandates that these considerations be satisfied prior to the grant of consent. Misdirection concerning a statute, or the misconstruction or misapplication of a statute, comprises error sufficient to be considered appealable under s 56A: Initial Action at [30], [44] and [83].
2. Mr Stafford proposed (written submissions at [64]) that: The appeal should be upheld and the development application ought be refused on this ground, given that the Commissioner did not identify any evidence in writing other than the condition of consent that would have been capable of satisfying clause 42.
3. In his oral submissions, Mr Stafford explained (Transcript, 23 March 2020, page 4, lines 19 to 22) that: … no evidence is only raised in connection with this appeal ground as the basis for dismissing the Class 1 application. So, if your Honour were satisfied that there were no evidence, it would be open to your Honour to, in my submission, to dismiss the Class 1 application on those grounds.

The Company's position

1. Contrary to the Council's submissions, the Commissioner did not rely solely on Condition 93(g) to satisfy cl 42: judgment at [94]-[96]. The Commissioner considered an expression of interest from BaptistCare, though it was conceded that it, alone, would not satisfy the standard in Crighton Properties Pty Ltd v Kiama Municipal Council (2006) 146 LGERA 271 (Crighton Properties).
2. The Commissioner also considered the amended proposal itself, which stated that the ILUs and the RACF were to be run by the same owner. Thus, it was open to find that the access to services of the RACF were available to the residents in the ILUs. The third and final piece of written evidence considered was the acceptance of the proposed conditions of consent by the Company. These conditions included terms that ensured the requirements under Condition 93(g) would be enforceable as a public positive covenant: Condition 84A. Condition 93(g) itself contained requirements for services to be provided by the operator of the RACF or landowner, therefore ensuring that co-location would be effective.
3. Even if the Commissioner had relied upon Condition 93(g) in the manner contended by Council, it would not be an error of law.
4. Mr Robertson disputed the interpretation and reliance upon Information Gateways Pty Ltd v Hornsby Shire Council [2005] NSWLEC 242 (Information Gateways), proposing that the more recent decision of Crighton Properties was the approach appropriate to be followed.

The Council's submissions in reply

1. With respect to Ground 6, the argument proffered by the Company that there was a change in operating model - to a single operator model from an external operator - was not a basis upon which the Commissioner could be satisfied that the requirements of cl 42 were met. Furthermore, the grouping of the residential care facility and serviced self-care housing was not evidence that the same services would be provided to each of them.
2. The deferral of the determination of "reasonable access" remains impermissible, as this determination is a prerequisite for the exercise of power to grant consent. There is no basis that Crighton Properties supports the proposition that a condition requiring "reasonable access" alone is capable of satisfying cl 42.
3. In his reply oral submissions, Mr Stafford put, with respect to the co-location of the self-care housing and the residential aged care facility, that (Transcript, 19 March 2020, page 33, lines 4 to 9): … that fact of itself was not something that was capable of providing the satisfaction required by cl 42, because the mere fact that a residential care facility in a serviced self-care facility might be on the same allotment, did not guarantee that services that would be provided to one would necessarily have to be provided to the other. Particularly in the context where these were in-home services.
4. He also submitted that cl 42 was not about access to external services. Rather, it dealt with access to services in the home. Further (Transcript, 23 March 2020, page 4, lines 14 to 16), he said: And, the bottom line here is that the, the Commissioner misconstrued cl 42 by presuming that a condition that merely required reasonable access was capable of constituting evidence for the purpose of cl 42.
5. Questions of "reasonable access" were ultimately left until after consent had been given. The Court must have been satisfied that written evidence would be provided that would satisfy all matters required by the clause. There was an absence of material before the Commissioner, which meant that he could not be satisfied of matters in cl 42.

Consideration

1. As the Council submitted, satisfaction of the requirement in cl 42(1) is a necessary prerequisite to the exercise of power to the granting of development consent for the Company's proposed ILU facility. As can be seen from the terms of the provision earlier set out, satisfaction of this prerequisite can only be founded on written evidence. The Council submits that I should conclude that there was no evidence that would have permitted the Commissioner to be satisfied that cl 42(1) was satisfied.
2. It is, for these purposes, convenient to set out, in full, [57] to [59] of Mr Stafford's written submissions on this point. These were in the following terms: 57 There was no evidence concerning what "access" residents of the serviced self-care housing would have to these services (that were otherwise to be provided to the residential care facility - for which there was evidence), except for the conditions of consent. Clause 42, in referring to "residents of the proposed development" having reasonable access to the relevant services, is referring to the residents of serviced self-care housing specifically. The stated purpose of the clause is to address development for the purpose of serviced self-care housing and not other development. 58 This formulation leaves what constitutes "reasonable access" to be determined later (by a person other than the Commissioner) by construction of the condition, whereas clause 42 precludes the consent authority from consenting to a development application unless it has reached the satisfaction required by clause 42(1) that the resident will have reasonable access to the services in subclauses 42(1)(a)-(c). By repeating the terms of clause 42, the condition suffers from the same mischief that Cowdroy J identified in a condition that left servicing arrangements to be determined at a later date in Information Gateways Pty Ltd v Hornsby Shire Council 28 The conditions proposed by the applicant leave the servicing arrangements to be determined at a time after the consent is issued. The servicing arrangements comprise an essential ingredient of the development. In their absence, the development would be prohibited. The Court must be satisfied of the servicing arrangements when the application is determined. The application cannot therefore be approved in its current form. 59 Put simply, the Commissioner was unable to form the requisite satisfaction in clause 42 on the basis of a condition (and public positive covenant proposed to be in similar terms) which merely repeated the terms in clause 42, because this left "reasonable access" to be ascertained later and there was no evidence as to what access to the residential care facility services was proposed for the serviced self-care housing residents. This was the mischief to which Cowdroy J referred in Information Systems [sic], because the Court must be satisfied of the servicing arrangements when the application is determined.
3. In Crighton Properties, Preston CJ addressed what was required for satisfaction of cll 27(1) and 74(1) of the then operative State Environmental Planning Policy (Seniors Living) 2004 (the former SEPP). The former SEPP has been superseded by the SEPP. The clause from the former SEPP which was addressed by Preston CJ was the same provision as was addressed by Cowdroy J in Information Gateways.
4. At [37], his Honour set out the terms of both provisions. The terms cl 27(1) of the former SEPP are not here relevant. However, those of cl 74(1) of the former SEPP are to identical effect to those of cl 42(1) of the SEPP here engaged. His Honour discussed, at [38] to [51] how the requirement might be satisfied. His Honour said (commentary irrelevant for present purposes and elements relating solely to cl 27(1) of the former SEPP are omitted): 38 These clauses each establish a condition precedent to the grant of consent by a consent authority. The condition precedent is the formation by the consent authority of an opinion of satisfaction, to be formed on the written evidence before it at the time, that the matters referred to in each of the clauses will be provided, namely: • …; and • for cl 74(1), that the residents of the proposed development will have reasonable access to home delivered meals, personal care and home nursing, and assistance with housework. 39 The condition precedent required by cl 2(1)(h) of Pt 1 of Sch 1 of the Regulation is that the environmental planning instrument require arrangements for any matter to have been made before development consent may be granted. 40 Do each of the conditions precedent established by cll 27(1) and 74(1) of SEPP (SL) answer this description of a condition precedent in cl 2(1)(h)? I am of the opinion that they do not answer that description for a number of reasons. 41 First, cll 27(1) and 74(1) do not in terms require that any "arrangements" for the matters referred to in each clause have been made before development consent may be granted. The word "arrangements" does not appear in either clause. 42 The word "arrangements" in cl 2(1)(h) bears, in my opinion, the meaning given by the Court of Appeal in Codlea Pty Ltd v Byron Shire Council (1999) 105 LGERA 370 at 378 [39] and [40]. That is to say, something in the nature of an understanding between two or more persons. 43 Clauses 27(1) and 74(1) of SEPP (SL) do not require any such understanding to have been made before development consent can be granted.44 Secondly, the clauses do not require that "arrangements" have been made. Rather, the clauses require the consent authority to be satisfied that the matters referred to in the clauses "will" be provided. The clauses do not look to the past (namely that arrangements have been made) but to the future (that the matters referred to in the clauses will be provided). 45 Thirdly, the written evidence upon which the consent authority is to be satisfied as to the matters referred to in each clause, does not necessarily require proof of arrangements that have been made to provide for those matters. There may be a number of ways in which the written evidence may satisfy the consent authority that the matters referred to in the clauses will be provided. 46 Obviously, if an arrangement has actually been made to provide the matters referred to in the clauses, and written evidence of such arrangement is provided to the consent authority, that would be one way that the consent authority could be satisfied that the matters referred to in the clauses will be provided. However, that is not the only way the consent authority could be satisfied. 47 Another way would be for the written evidence that is supplied to the consent authority to state that, although arrangements in relation to the provision of the matters referred to in cll 27(1) and 74(1) have not yet been made, nevertheless such arrangements may be made in the future. This may be on some date specified or on or after the happening of some event, including the grant of development consent for the development. 48 Obviously, the more uncertain and contingent the making of arrangements in the future with external service providers for the provision of the matters referred to in cll 27(1) and 74(1) may be, the more difficult it may be for an applicant for development consent to satisfy the consent authority that the matters will be provided. This fact, however, does not remove the possibility that an applicant could satisfy a consent authority that the matters referred to in the clauses will be made, by providing written evidence that an arrangement in respect to matters will be made in the future, even though such an arrangement has not yet been made. 49 Yet another way of establishing that the matters referred to in cll 27(1) and 74(1) of SEPP (SL) will be provided may not involve the making of arrangements with external service providers at all, but instead may be for the development itself to provide the matters referred to in those clauses. … 51 In relation to cl 74(1), the proposed development may involve provision to the residents of the proposed development of home delivered meals, personal care and home nursing, and assistance with housework by the management of the seniors living development. The written evidence would again be in the development application and accompanying documents. The consent authority could be satisfied by that written evidence that, if consent were to be granted including with appropriate conditions requiring the ongoing provision of such services, the services will be provided. Any arrangements for the provision of such services to residents would obviously have to be made with residents in the future after the development is carried out.
5. In Mr Robertson's written submissions, at [59], he notes that the objection pressed by the Council in this ground was also run by the Council as an argument before the Commissioner. Mr Robertson also notes that the Company's response to this was contained in the Company's written submissions in reply before the Commissioner. These are in evidence before me (Appeal Book, Volume 2, Tab 37). I have carefully read those submissions advanced to the Commissioner. My reading of them shows that significant reliance was put on a number of elements of the Statement of Environmental Effects (the SEE). The SEE was in evidence before the Commissioner as Exhibit P (it was also in evidence before me at Appeal Book, Volume 2, Tab 23).
6. Two paragraphs ((4) and (5)) of the Company's submissions in reply to the Commissioner warrant being set out as they are relevant to this ground (the submissions in reply before the Commissioner being adopted for this appeal as noted at (59) of the Company's written submissions before me). The two paragraphs were in the following terms: 4 The proposal is that the services to which residents of the housing must have "reasonable access" will be provided by and from the facility, and the facility is designed to accommodate and provide each of those uses: food, nursing, cleaning and personal care services. That is, after all, the point of uniting the two types of uses on the one site. 5 This was made clear in writing in the SEE: "The subject application provides for a total of 60 self-contained dwellings with services provided on-site via the proposed RACF building and which satisfy these definitions." (p. 21). The definitions include the definition (relied upon extensively by Council as constraining the permissibility of the housing development) of serviced self-care housing "that consists of self-contained dwellings where the following services are available on the site: meals, cleaning services, personal care, nursing care". The SEE then confirms that: "residents of the self-contained dwellings will have access to all of the support services provided by the proposed RACF development including nursing care, meals and cleaning." Later, it is confirmed that these services via the RACF will be provided on a user pays basis (p. 21 & p. 30). Finally, the SEE makes it clear that those services will be available when the development is ready for occupation, whether or not it is built in stages: p. 30.
7. I have elsewhere noted that the Appeal Book was in two volumes. Importantly, for consideration of this ground, Volume 1 contained, at Tab 13, Exhibit 6 tendered to the Commissioner. Exhibit 6 comprised the Council's draft conditions of consent, being the conditions of consent which the Council said should be applied if the Commissioner was minded to grant development consent.
8. Further, Volume 2, Tab 34 comprised Exhibit OO was also tendered to the Commissioner - this exhibit being the additional conditions of consent proposed by the Company. These conditions of consent included, at proposed Condition (1)(g), the following: Prior to the occupation of any of the Serviced Self Care Housing units, and for the duration of the development and at all times, the occupants of the Serviced Self Care Housing must have reasonable access to:- • Meals • Cleaning services • Personal care • Nursing care. provided on the site of the development by the operator of the Residential Aged Care Facility, or, in default by the owner of the land.
9. The Company's proposed Condition 2 in Exhibit OO was in the following terms: Prior to the issue of any occupation certificate, a public positive covenant shall be created on the title of the land, incorporating the measures outlined in condition 1 (above). The terms of the covenant are to be prepared at the applicant's expense and endorsed by Council prior to lodgement with NSW Land Registry Services. Northern Beaches Council shall be nominated as the party to release, vary or modify the covenant. "Public positive covenant" includes a restriction on user, where appropriate.
10. Whilst it can be seen that these proffered conditions are not in precisely the terms of those imposed by the Commissioner in the granting of development consent (as earlier set out), it is clear that that which was imposed by the conditions attaching to that consent was functionally equivalent to the two elements of Exhibit OO set out above.
11. It is convenient, at this point, to set out [60] to [63] of Mr Robertson's written submissions on this point. Those paragraphs were in the following terms: 60 However, it can be seen from paragraphs [94]-[96] of the Judgment that Horton C did not rely solely on the Condition 93(g) to satisfy cl 42. Instead, he relied on three different sources of written evidence. 61 The first source of evidence was an expression of interest from BaptistCare. Horton C said that it was doubtful whether this document would "rise to the standard set out by Preston CJ in Crighton". This is a reference to Crighton Properties Pty Ltd v Kiama Municipal Council (2006) 146 LGERA 271 where Preston CJ found at [52] that the cl 74 of State Environmental Planning Policy (Seniors Living) 2004 (SEPP SL) (the predecessor to cl 42 of SEPP HSPD) did not require written evidence of a positive "arrangement" to provide services, but that the decision-maker could be satisfied in a number of different ways that the services would be provided. So, when Horton C said that the BaptistCare document might not rise to the "standard" set by Crighton, he meant that the document alone might not be enough to satisfy him that the cl 42 services would be provided when required. 62 It was not necessary for Horton C to decide whether the BaptistCare document alone was sufficient to satisfy cl 42, because he could also rely on two other pieces of written evidence. The second was the amended proposal itself. Under the amended proposal, the ILUs and the RACF were to be on the one lot, and were likely to remain under a single ownership, run by the same operator. This was highly significant, because both the Aged Care Act (Cth) and the SEPP itself (cl 11) required the operator of the RACF to provide those services, and it was then open to find that the co-location of ILUs and the RACF on the same lot afforded reasonable access by the residents in the ILUs to the services provided by the RACF: [65]-[75], [91], [95], [115], [124], [125]. The third piece of written evidence was the acceptance by the applicant of the proposed conditions of consent. These included not only the proposed Condition 93(g), insofar as it reproduced the terms of cl 42 of SEPP HSPD, but also Condition 84A which ensured that the requirements of Condition 93(g) would be enforceable as a public positive covenant, and the last two lines of Condition 93(g) which stated that the required services must be provided either by the operator of the RACF or the owner of the land. That ensured that the co-location would be effective. 63 Thus, when Horton C said that "the applicant's draft conditions of consent… (are) written evidence in sufficient detail to satisfy the Court that the residents of the proposed development will have reasonable access to the services required by cl 42", he was not reaching that state of satisfaction based solely on proposed Condition 93, but rather finding that the conditions tipped the balance, in combination with the other evidence, which necessarily included the statutory context.
12. In addition to accepting that that which is set out in Mr Robertson's submissions above is correct, for the reasons he gives, it is appropriate to explain why the approach adopted by Cowdroy J in Information Gateways is not to be accepted.
13. In the paragraph from Information Gateways quoted by Mr Stafford, his Honour makes it clear that he required to be satisfied of the servicing arrangements when the application is determined (emphasis added).
14. As Preston CJ explained in [39] to [43] of the extract from Crighton Properties earlier set out, arrangements are not mandated to be known for the purposes of satisfaction of (here) cl 42(1). As Preston CJ observed in [51]: … The written evidence would … be in the development application and accompanying documents. The consent authority could be satisfied by that that written evidence that, if consent were to be granted, including with appropriate conditions requiring the ongoing provision of such services, the services will be provided.
15. The approach taken by the Company in the proceedings before the Commissioner was entirely consistent with that approach outlined by his Honour in Crighton Properties.
16. It is long-settled that an applicant (here the Company), if granted a development consent subject to conditions, will abide by those conditions of consent. In this case, there being long-term obligations imposed by those conditions, these will also attach to any future operator of the site (as the consent is in rem) also obliging such operator to abide by those conditions.
17. The approach which had been taken by the Commissioner in reaching his state of satisfaction as to the proposal's compliance with cl 42(1) of the SEPP was clearly founded on written evidence relevant to the topic about which he was required to reach satisfaction. That written evidence was provided by the elements of the SEE set out above, together with the conditions proffered by the Company in Exhibit OO relevant to this point. The Commissioner's approach was also entirely consistent with the approach outlined by his Honour in Crighton Properties.
18. The attack made by the Council in this appeal, alleging an absence or insufficiency of written evidence by which the Commissioner could reach the necessary state of satisfaction, is entirely misplaced.
19. Ground 6 is rejected.

Introduction

1. Two clauses of the SEPP are here relevant - they are cll 43 and 44. These are in the following terms: 43 Transport services to local centres (1) A consent authority must not consent to a development application made pursuant to this Chapter to carry out development for the purpose of serviced self-care housing on land that adjoins land zoned primarily for urban purposes unless the consent authority is satisfied that a bus capable of carrying at least 10 passengers will be provided to the residents of the proposed development - (a) that will drop off and pick up passengers at a local centre that provides residents with access to the following - (i) shops, bank service providers and other retail and commercial services that residents may reasonably require, (ii) community services and recreation facilities, (iii) the practice of a general medical practitioner, and (b) that is available both to and from the proposed development to any such local centre at least once between 8am and 12pm each day and at least once between 12pm and 6pm each day. 44 Availability of facilities and services A consent authority must be satisfied that any facility or service provided as a part of a proposed development to be carried out on land that adjoins land zoned primarily for urban purposes will be available to residents when the housing is ready for occupation. In the case of a staged development, the facilities or services may be provided proportionately according to the number of residents in each stage.
2. The relevant condition relied upon by the Company as satisfying the timing element of cl 44 of the SEPP is contained in the chapeau to Condition 93 of the conditions of consent imposed by the Commissioner. The relevant element of that condition is reproduced below (emphasis added by me): Transport, access to services, occupants and other matters For the life of the development and at all times, the development is to be operated as follows: Mini buses a) Two mini buses are to be available for use by both the residents of the Residential Aged Care Facility and the Serviced Self Care Housing units, each with a capacity of at least 12 seats and having wheelchair access. b) The mini buses are to drop off and pick up passengers at a local centre that provides residents with access to the following: i. shops, bank service providers and other retail and commercial services that residents may reasonably require, ii. community services and recreation facilities, iii. the practice of a general medical practitioner. c) The mini buses are to be available both to and from the development to any such local centre at least once between 8am and 12pm each day and at least once between 12pm and 6pm each day. d) The mini buses shall otherwise operate on demand by, or on behalf of, residents of the development daily between the hours of 8am and 6pm. e) The mini buses must have a driver and an appropriately qualified assistant/helper if assistance is required by any resident. f) The costs of providing and operating the mini buses shall be borne by the owner of the land.

The Council's position

1. The basis for the Council pressing Ground 7 was concisely summarised by Mr Stafford: The seventh ground, that there's no evidence that the bus would be available to residents at the time that the housing was ready for occupation. (Transcript, 19 March 2020, page 41). So the mischief to which cl 44 is directed, coming as it does immediately after cl 42 and 43, is to be sure that you don't have the situation where a few of the residents are in for occupation, the development hasn't totally been completed yet, all of the residents aren't there, so a developer turns around and says, well, we haven't provided the bus or the other facilities, because everybody isn't in the place yet. (Transcript, 19 March 2020, page 42). In my submission, your Honour, conditions of consent couldn't cure the commissioner's failure to deal with cl 44 in the context of the bus. (Transcript, 19 March 2020, page 44).
2. Mr Stafford's written submissions summarised this ground as being that the Commissioner: (f) did not reach the satisfaction required by clause 44 of SEPP HSPD in respect of the bus service that was required by clause 43 because the Court had to be satisfied that the bus would be available to residents when the housing is ready for occupation.
3. Mr Stafford submitted that the Commissioner had not turned his mind to the issue of the timing of buses. Indeed, the uncertainty of the commencement of the condition, "the life of the development", apparently suggests that the Commissioner did not turn his mind to the timing of commencement (Transcript, 19 March 2020, page 46).
4. The Court ought not be satisfied that the services required to be provided to the proposed development would be provided within the time required by cl 44 of SEPP. This clause mandates that access to the required services be available when the housing is ready for occupation. The Commissioner did not explain his satisfaction of cl 44 as a jurisdictional fact. The Condition of Consent that deals with this requirement specifies that buses must be available "for the life of the development". Council argued that it was conceivable that: 71 … a proponent could comply with the condition requiring buses to be provided for the life of the development, yet not have the buses available when the first residents enter into occupation.
5. Since the specific question of provisioning of buses was not resolved, there could be no satisfaction of cl 44 of the SEPP. The Commissioner was therefore not empowered to grant consent.

The Company's submissions

1. Mr Robertson submitted that, with regard to Ground 7 (the alleged failure to provide a bus service pursuant to cl 43), the Council bears the onus of proof. The judgment does not support an inference that satisfaction was not reached. A requirement that a bus service would be available "for the life of the development" was included in the conditions, as part of the chapeau of Condition 93. As put by Mr Robertson: 69 … Then at [97] under the heading "findings" [the Commissioner] stated that he considered "the provision of the bus to have been meaningfully integrated into the development, and not merely proposed by way of condition". These passages together show that the Commissioner reached the state of satisfaction required by cl 43 the consciousness that the bus service must be provided from the time that the ILUs became available for occupation. Therefore, it may readily be inferred that he was also satisfied that the bus would be provided at the time required by cl 44. 70 … The fact that he imposed a condition dealing with a time period is evidence, in and of itself, that he gave consideration to the timeframe for provision of the service and was satisfied that it would be available for that period."
2. Council contends that the term, "life of the development", does not guarantee that the bus service would be available when the ILUs were ready for occupation. It was put in response that: However taking a purposive approach, knowing that there is no utility in providing a bus service before there are any residents to take the bus, this condition must mean, "for the period during which the development is used for housing for seniors or people with a disability". Construed this way, the condition is entirely consistent with the requirements of cl 44.

The Council's submissions in reply

1. With respect to Ground 7, BDSI does not stand for the proposition that the onus lies on the Council to show that the required satisfaction of a clause - in this context, cl 44 - was not reached. An inference of failure to consider a matter may be made if there is a lack of evidence that the precondition was addressed: Hortis. There is no explicit finding that the bus services would be provided at the required time. The condition that the bus must be provided for "the life of the development" does not support an inference that the Commissioner considered that the bus service would in fact be provided at the time of first occupation.
2. Mr Stafford reiterated, in his closing oral submissions, that the ground is confined purely to the issue of timing, not to its presence. The requirement that the bus be provided "for the life of the development" is ambiguous.

Consideration

1. As I have earlier noted in the context of Ground 6, there is a presumption that a beneficiary of a development consent will abide by the conditions attached to it. It is in the context of the complete suite of relevant conditions imposed by the Commissioner that a proper understanding could be discerned of what might constitute "the life of the development" for the purposes of addressing the Council's concern pressed in this ground.
2. Rhetorically, during the course of the hearing of this appeal, I asked when does the development become "alive" for these purposes? For the purpose of understanding why I reject this ground on two separate bases, it is unfortunately necessary to reproduce a lengthy extract from the transcript which demonstrates why Ground 7 is entirely contextually misplaced. The extract from the transcript is from page 42, line 43 to page 47, line 27: HIS HONOUR: What causes the development to become alive? It can only be the issue of an occupation certificate, can't it? I mean, I'm having difficulty understanding the practical, as opposed to the semantic difference between life of the development and the duration of the development. In that context, "life of" must mean something. STAFFORD: And I say it's duration, your Honour. The life of the development means, for as long as the development subsists-- HIS HONOUR: Yes, but I'm saying to you, when does life get breathed into the clay? STAFFORD: Again, this is somewhat hypothetical, but if one thinks in terms of enforcement proceedings of a condition such as this, and if one thinks of the circumstances of issue of an occupation certificate in a development such as this, it's certainly the case, as your Honour will be aware that it's possible for people to enter into occupation before an occupation certificate is issued. HIS HONOUR: Before a final occupation certificate is issued. STAFFORD: Correct. Well, even-- HIS HONOUR: Life of the development might run for many years from an occupation certificate. STAFFORD: Well, it might, but I foreshadow - let me suggest that there would be difficulty in any enforcement proceedings in claiming that the proper construction of a condition that requires a condition to be made and circumstances to be maintained for the life of the development, is that a developer could be in breach of that condition, simply by not having provided the service from first occupation. HIS HONOUR: But isn't that precisely the sort of vice intended to be capable of being addressed and which there might well have been a duty on your client to address in the sense that the commissioner dealt with the settlement of conditions in para 174, from memory. 174, 4 and 5. STAFFORD: But this argument wasn't raised in connection with the conditions. The circumstances before the commissioner were very different. It was argued that the bus service didn't even meet the requirements of cl 43. HIS HONOUR: Yes. STAFFORD: The commissioner made a finding that the bus service proposed met the requirement - let me put it this way, the conditions that were put forward in connection with the bus were not conditions that were proposed by the council. Council simply said that the proposal should be refused, because the bus wasn't meaningfully integrated into the development. It didn't meet the requirements of the decision, like Information Gateway and Wirrabara. That was the basis on which the argument was always put. It was certainly also said, as I've noted here, where I've identified the submissions that went to timing. I said there was no confidence, from the recollection - I'll have to pull it out. There was no confidence from the conditions that were proposed, that it would be provided at the time that the services were commenced. I can take you to those submissions just to confirm what I've said. But the whole context of this, council is saying it should be refused, because of the bus, as the bus didn't rise to the heights of that Information Gateway's case or the Wirrabara case or-- HIS HONOUR: I understand that, but that's a different proposition to the proposition that I am now dealing with, which is a question of interpretation of what arises from 75, 1 compared to 75, 4. STAFFORD: This appeal ground is put on the basis that the commissioner failed to reach the state of evidentiary satisfaction to be able to make the decision. So it's not put purely on the basis of the construction of the condition, it put because the commissioner deals at length with whether the timing is met in connection with cl 42 and makes a finding on it. I've put the references to that in the written submissions at para 68. The learned commissioner recognised that in connection with cl 42, he had to consider and make that finding, but there is no evidence disclosed, in my submission, in the decision as to his satisfaction as to cl 44 in the context of the bus. If your Honour says to me, that's-- HIS HONOUR: The commissioner's decision records in the chapeau, at the beginning of 75. It says that he is summarising what the applicant's proposed conditions set out, presumably. I take it that with the exception of whether the words "for the life of the development" equate for the duration of the development and prior to occupation or not. You don't cavil with those summaries. STAFFORD: I don't, no. I can't. HIS HONOUR: Then that becomes an issue of tidiness of language, does it not, in circumstances where - I mean, it would seem to me this is a classic example of the sort of thing that would be dealt with in the ebb and flow of a discussion between the parties with respect to conditions of consent. Unless you are going to take me to something in the correspondence between the parties post the commissioner's findings and before the finalisation of conditions that says, well, we don't like use of the words "life of the development", it should say, "prior to occupation and for the duration of the development" and Mr Robertson's client says, no, I'm not interested, go away and play in the traffic, we're sticking with the words in the commissioner's summary. STAFFORD: In my submission, your Honour, conditions of consent couldn't cure the commissioner's failure to deal with cl 44 in the context of the bus. That's why I'm trying to say, this isn't based purely around - it's not the fact that necessarily I'm saying that the commissioner misconstrued the condition, although I do say that it doesn't make it clear that cl 44 is satisfied, the commissioner simply doesn't evidence satisfaction that cl 44 is satisfied in connection with the bus. Yet he does so at length in connection with cl 42. Paragraphs 93 and 96 of the decision, you'll see that the learned commissioner says, "In finding this...assistance with housework", that's a substantive submission on cl 42, "or that those...ready for occupation." At paragraph 96, after considering the cl 42 issues, the commissioner says, "In my view...by cl 44". There's no such finding in connection with the bus service. ROBERTSON: Paragraph 97 is also relevant to that point. STAFFORD: Well, para 97 deals with the substantive submissions on cl 43 as to whether the bus service met the requirements in cl 43, per se. It doesn't deal with the timing of the provision of bus service. There is no finding in the commissioner's decision that he was satisfied in connection with the timing of the bus service. HIS HONOUR: Do not the words "the applicant's proposed draft conditions of consent" take you back to 75? And doesn't 75 deal with the buses? By being taken back to and encompassing all of the matters dealt with by the commissioner in 75, doesn't 96 say, you'll get everything proposed in the applicant's draft conditions of consent at the time required by cl 44? STAFFORD: Clause 75 is a summary of what the conditions were that were put forward to address cl 44. HIS HONOUR: Yes. STAFFORD: When the commissioner comes to make his findings, there is nothing to suggest that he turned his mind to the timing of the bus. It's simply not dealt with in paras 97 through to the end of that section, whether it was satisfied. HIS HONOUR: He has applied his mind to the understanding that the buses will be provided for the life of the development. ROBERTSON: The condition that was actually settled with the concurrence of council reads, "For the life of the development and at all times". STAFFORD: It does. ROBERTSON: That's at p 113. This is Condition 93 and that was added as a result of the negotiations between council and us after the first decision, the first reasons. He's actually summarising the condition at a high level in the judgment. STAFFORD: In para 90 of the council's written submissions below, and this is all that I have to say on this ground, it's asserted "The community management statement", so this was before the conditions were in, so you can substitute "conditions" there, "the conditions are...or at all". So the submission was made in the course of closing submissions, that the terms that have been put before the Court, and that was maintained not in respect of a community management statement, but in respect of conditions and that's why I say this was tied up with cl 43. It was said that "The community management...or at all." That was the context in which the bus - obviously the council isn't appealing the cl 43 decision, it's only appealing the cl 44 aspect. But the submission was made at that time that the level of detail lacking in connection with the bus. HIS HONOUR: I understand that, but your concern about the level of detail about the buses commences is triggered by when the starting point is for the buses to operate. I want to know with precision, when you say to me the life of the development commences and why? Because if the life of the development commences - it seems to me that there are very few milestones that it could be. One could be, when the first sod is turned. It might be futile to have minibuses going around on a circuit from the time the spade is stuck in the ground for the first time. But the other alternatives are when an interim occupation certificate is granted or when a final occupation certificate is granted or when every unit is occupied or something of that nature? STAFFORD: Or it could be when all of the conditions of consent are complied with. There might be a final occupation certificate issued and there might still be conditions of consent that are still outstanding that are not tied to the issue of an occupation certificate. I deal with this in the reply to the respondent's submissions. The very fact that you can't say that this condition means that it applies from the time that the first sod is turned and that it's uncertain from when this condition first commences, in my submission suggests to you that the commissioner didn't turn his mind to the time of commencement of this particular series of circumstances. For example, say at para 47 of the reply, there is no explicit finding that the bus services would be provided at the required time, by contrast with provision of other services at the time required. Secondly, the only evidence identified that would have capacity to support a finding that the bus service would be provided at the required time. There's a condition requiring that the bus must be provided for the life of the development, noting that this would, at best, only be implicit because the learned commissioner did not draw this connection explicitly. I've heard what your Honour said about him setting it out in the summary in connection with cl 44 though. I go on to say, "This condition does...of the service". If I can say, respectfully, ipso facto, the issue that your Honour has identified that it's unclear from this when exactly is the life of the development commencing is exactly why this condition can't be said in a substantive sense to have been capable of - it doesn't constitute evidence that the commissioner turned his mind to this question and addressed it in circumstances where he didn't explicitly turn his mind to this question and address it. I say here, in the same way that the respondent identifies it would not be reasonable to construe this condition to commence, when the first sod is turned, there's no reason why the bus service would need to be in place immediately when the first residents enter into occupation. There's no reason to presume that the condition regulates commencement of compliance and compliance, when on its terms it regulates something differently. That is to say, duration. This isn't something that could be cured by the council putting forward some condition to try to tie it down further, in my submission, because it wasn't a question of a condition being put forward, it was really a question of evidence being put forward as to when the bus service would first be provided. That might have included a condition that specified the time that it would first commence and the commissioner was - let me say that your Honour, as I'm sure you're not, but the presumption ought not be made that just because council isn't appealing in connection with the services, that council is wholly happy with the form of the condition in respect of the provision of home services. That plainly was never the case on the correspondence. Council always said that the proposal should be refused, including in the correspondence that you'll see from my friend. Conditions in these proceedings are always put forward as being begrudgingly-- HIS HONOUR: Without prejudice, I understand that entirely. If you're silly enough to approve it, this is the upon which you should do so. I have had that put to me thousands of times over the years. STAFFORD: I know, I know. HIS HONOUR: I'm entirely understanding of that. STAFFORD: So council's submissions here really is that nothing that it could have done after that event would have overcome the problem that the commissioner really just, on the evidence, didn't properly turn his mind to this question. I appreciate what your Honour says about the implicit reference, by setting out those conditions and that's certainly the case, but when push came to shove, he spent a lot of time reasoning in connection with timing of the other services, but not in connection with the bus. But that's as high as I put that ground, your Honour.
3. Resolution of the metaphysical conundrum I posed and a functional answer to this complaint pressed by the Council is to be found in Condition 84A, the public positive covenant condition proffered by the Company in Exhibit OO before the Commissioner and subsequently incorporated into the agreed conditions of consent imposed by him. That condition (the full terms of which are set out earlier) includes the following: Details demonstrating compliance are to be submitted to the Principal Certifying Authority prior to the issue of any interim/final Occupation Certificate.
4. Two things relevantly flow from this. First, it is to be assumed that there will be no occupants of the Company's development (if constructed) unless and until an appropriate occupation certificate permitting this to occur has been issued. Second, no such certificate can be issued unless the relevant element of Condition 93 had been satisfied.
5. Thus, in this context, "the life of the development" commences with the issuing of such a certificate and the conditions of consent mandate the provision of the buses from that time.
6. Ground 7 is rejected.
7. In the alternative, it is appropriate to have regard to the process between the decision given by the Commissioner on 21 June 2019 and his finalisation of the proceedings by making orders granting development consent, subject to conditions, an event which occurred on 12 July 2019.
8. I have earlier noted, in my discussion of Ground 3, the position whereby the Commissioner had provided the parties with an opportunity to relist the matter before him if there were any disputes requiring to be resolved concerning the terms of any conditions of consent. As earlier observed, no relisting took place.
9. In his addendum, added to his decision on 12 July 2019, the Commissioner noted, at [175] (emphasis added by me): In accordance with the terms of my directions in [174] of my judgment of 21 June 2019, the parties provided me with the following: (1) …; (2) …; (3) An agreed set of conditions of consent filed on 9 July 2019 containing conditions responsive to the reports prepared by Building Code & Bushfire Hazard Solutions.
10. In the context of Ground 6, I noted that the Company had proffered additional conditions, with those conditions being contained in Exhibit OO. The condition that was proposed by the Company, dealing with the availability of the two buses, as set out in Exhibit OO, was, in the relevant paragraph, in the following terms: The proposed development is to be operated as follows:- For the life of the development, two mini buses will be available, each with a capacity of at least 12 seats, having wheelchair access, for use by both the residents of the Residential Aged Care Facility and the Serviced Self Care Housing units.
11. The revised conditions, marked with the watermark "DRAFT", were contained in the Appeal Book, Volume 2, Tab 40. The index to the Appeal Book notes these as being as at 9 July 2019. They are clearly those adopted by the Commissioner as noted in 175 of the 12 July 2019 addendum to his 21 June 2019 decision.
12. This version of the conditions of consent, relevant to this ground of appeal, is in identical terms to that which appears in the conditions in Annexure A to the Commissioner's decision, being the conditions he attached to the development consent granted by his orders in the proceedings.
13. Of importance in the present context, it seems to me, is the fact that the wording of the condition about which complaint is made in this ground has one relevant feature.
14. This is that the words of the condition in the form imposed by the Commissioner, although very similar to that which was proposed by the Company in Exhibit OO, are not in identical terms to that which was proffered in this regard. The words and the format have been rearranged in the conditions adopted by the Commissioner and described by him, as noted above, as being "agreed".
15. The rearrangement of the proffered condition into its agreed form demonstrates that those agreeing to the conditions - expressly here relevant whoever "agreed" to them for the Council - applied their minds to what was the desirable wording to give effect to the obligation to be imposed by Condition 93.
16. The consequence of this is that it ill behoves the Council now to complain about the terms of a condition provided to the Commissioner as being "agreed" in its wording when that wording had been taken from the relevant element proffered by the Company in Exhibit OO but reworked in the drafting of the final form of the conditions.
17. These conditions were no longer the "draft without prejudice conditions" that the Council was obliged to provide to the Company as required by [49] of the Class 1 Development Appeals Practice Note, but were ones which had become "agreed" (that is agreed to by the Council) as to be the appropriate basis governing the development consent which the Commissioner had indicated he proposed to grant.
18. As noted, had there been a dispute about any of this wording, including the wording here contested, the Commissioner had provided an opportunity for the parties to bring such a dispute to him for his resolution, an opportunity of which the Council did not avail itself.
19. Indeed, some might regard, in these circumstances, the complaint advanced by the Council in Ground 7 as being hypocritical.
20. Ground 7 is also rejected on this separate basis.

Introduction

1. In its amended contentions before the Commissioner, the Council had raised the question of whether the Company's proposed development could be regarded as being compatible with the character of the locality and with neighbourhood amenity and streetscape. This was set out in Contention 5 in the following terms: Character and compatibility with the locality, neighbourhood amenity and streetscape The proposed development has a built form that is excessive and unreasonable, a poorly configured layout and is not of good design, resulting in an unacceptable character, poor amenity, inconsistency with the existing character of the area and incompatibility of the proposed development with the surrounding environment.
2. The contention was supported by 10 particulars - particulars not presently necessary to be reproduced.
3. Mr Stafford's written submissions summarised this ground as being that the Commissioner had: (g) effectively failed to make a decision on whether it was appropriate to approve the proposal having regard to character, compatibility with the locality, neighbourhood amenity and streetscape. The Commissioner considered himself bound by the site compatibility certificate and so failed to undertake the task required of him under s 4.15 of the Environmental Planning and Assessment Act 1979 (EP&A Act). He only made findings on Contention 5 in connection with Sch 2 to the site compatibility certificate, landscaping and that he was satisfied as to the matters in cl 32 of SEPP HSPD - nowhere did he actually give reasons as to why he approved the proposal having regard to Council's concerns about character, compatibility with the locality, neighbourhood amenity and streetscape.

The Council's submissions

1. The Commissioner abdicated his considerations of s 4.15 of the EP&A Act as to the character contention by relying upon the Certificate instead of making his own assessment. Sections 4.15(1)(b), (c) and (e) require the decision-maker to consider the likely impacts of the development in the locality, the suitability of the site for development and the public interest. These were not explicitly considered. Clause 24(3)(b) of the SEPP precludes a Certificate from limiting matters to which the consent authority must otherwise have regard. The Commissioner misdirected himself as to the task at hand under s 4.15 as to the character contention and therefore constructively failed to exercise the s 4.15 jurisdiction, relying upon the known circumstances espoused in Ex parte Hebburn Ltd.; Re Kearsley Shire Council (1947) 47 SR (NSW) 416 at 420.
2. Mr Stafford advanced the proposition that it was difficult to see that the Commissioner made any decision at all regarding character, compatibility within the locality, neighbourhood amenity or streetscape, other than the fact that he approved of the proposal.
3. With respect to Ground 8, the Commissioner was required to undertake his own consideration of s 4.15 of the EP&A Act. The Commissioner could not substitute consideration of s 4.15 by "relying on" the Certificate. It is not correct that the requirements of Sch 2 of the Certificate were cast in such broad terms as to cover the field of consideration mandated by s 4.15, particularly with regard to character.

The Company's submissions

1. Mr Robertson's written submissions concisely addressed each of the five sub‑grounds pleaded in support of Ground 8. His submissions are set out below. Ground 8(a) alleges that the Commissioner misdirected himself by relying on the Certificate in lieu of making his own assessment under s 4.15 of the EP&A Act. Tolucy claims that this ground of appeal is erroneous. Whilst s 4.15 requires that the decision-maker consider matters, it does not impose an obligation for assessment of those matters.
2. Mr Robertson's submissions on Ground of Appeal 8(b)-(e) are reproduced as follows (footnotes omitted): 74 Ground 8(d) and (e) allege that Horton C's reliance on the Certificate prevented him from considering the matters listed in s 4.15(1)(b), (c) and (e). This ground is not made out. Horton C considered separately at [165]-[167] whether the Development had "resolved" the bulk and scale issues raised by the Certificate, and then character and site compatibility issues more generally at [168]. He did not treat the former as being conclusive of the latter. Although his finding apart from the Certificate issues was brief, it was informed by the more lengthy consideration of the parties submissions at [148]-[164]. The "issues" stated in Sch 2 of the Certificate C were in such general terms that they almost covered the field. It was inevitable that the Commissioner's consideration of the issues raised by the Certificate would encompass most of the matters which he was required to consider under s 4.15. 75 Ground 8 is an allegation that the Commissioner asked the wrong question at [44] by stating that consent would be granted if the proposal complied with Warringah Local Environmental Plan 2011 (LEP 2011). In this context, this was an introductory statement about the effect of the SEPP in overriding the prohibition of the development. It played no part in the resolution of bulk and scale, character or streetscape issues at Judgment [148]-[168].

The Council's submissions in reply

1. Mr Stafford submitted, in his oral submissions in reply, that it is impossible to discern why the evidence of Council was not preferred on the reasons given (or not given) by the Commissioner with regard to character and compatibility with the locality, neighbourhood amenity and streetscape.

Consideration

1. Relevant to my consideration of this complaint by the Council, there are three elements of the SEPP which are appropriate to be noted. The first of them, cl 24 makes it clear that a consent authority - here the Commissioner - is not limited by a Site Compatibility Certificate as to relevant matters capable of consideration in determining whether or not to grant consent to a development proposal such as that advanced by the Company. Clause 24(3) is, relevantly, in the following terms: 24 Site compatibility certificates required for certain development applications (1) … (1A) … (2) … (3) Nothing in this clause - (a) prevents a consent authority from - (i) granting consent to a development application to which this clause applies to carry out development that is on a smaller (but not larger) scale than the kind of development in respect of which a site compatibility certificate was issued, or (ii) refusing to grant consent to a development application to which this clause applies by reference to the consent authority's own assessment of the compatibility of the proposed development with the surrounding environment, or (b) otherwise limits the matters to which a consent authority may or must have regard (or of which a consent authority must be satisfied under another provision of this Policy) in determining a development application to which this clause applies.
2. As can be seen, this provision provided the Commissioner with a broad scope to address matters concerning character, compatibility with the locality, neighbourhood amenity and streetscape - these being the matters about which the Council makes complaint in this ground.
3. The next relevant provision is cl 32 of the SEPP, one which sets a jurisdictional prerequisite for the Commissioner's satisfaction to approve the proposed development. This clause is in the following terms: 32 Design of residential development A consent authority must not consent to a development application made pursuant to this Chapter unless the consent authority is satisfied that the proposed development demonstrates that adequate regard has been given to the principles set out in Div 2.
4. Relevant to the matters engaged by this ground arising out of the principles set out in Div 2 to which reference is made in cl 32, the design principles relevant to the issues of concern to the Council in this ground are set out in cl 33 of the SEPP, a provision in the following terms: 33 Neighbourhood amenity and streetscape The proposed development should - (a) recognise the desirable elements of the location's current character (or, in the case of precincts undergoing a transition, where described in local planning controls, the desired future character) so that new buildings contribute to the quality and identity of the area, and (b) retain, complement and sensitively harmonise with any heritage conservation areas in the vicinity and any relevant heritage items that are identified in a local environmental plan, and (c) maintain reasonable neighbourhood amenity and appropriate residential character by - (i) providing building setbacks to reduce bulk and overshadowing, and (ii) using building form and siting that relates to the site's land form, and (iii) adopting building heights at the street frontage that are compatible in scale with adjacent development, and (iv) considering, where buildings are located on the boundary, the impact of the boundary walls on neighbours, and (d) be designed so that the front building of the development is set back in sympathy with, but not necessarily the same as, the existing building line, and (e) embody planting that is in sympathy with, but not necessarily the same as, other planting in the streetscape, and (f) retain, wherever reasonable, major existing trees, and (g) be designed so that no building is constructed in a riparian zone.
5. Finally, in terms of Sch 2 of the Certificate as relevant to this ground, what the Certificate required the Commissioner to do was, as described by the chapeau in Sch 2(1) of the Certificate, address the resolution of issues relating to the topic of: • Building bulk and scale
6. It is in this context that it is appropriate to reproduce, in its entirety, the portion of the Commissioner's judgment between [148] and [168] - being his discussion of, and findings about, the question of "Character". The extract from the Commissioner's judgment is in the following terms: Character 148 In the interests of providing an overview of the proposed development, the applicant's landscape architect expert, Mr Smart, played vision of a computer generated flythrough to the Court, followed by evidence of the town planning and urban design experts relating to Contention 5 which is, in effect, that the proposal is not compatible with the character of the locality. 149 This is reflected in the requirements imposed on the site by Sch 2 of the SCC which includes the resolution of issues relating to building bulk and scale. To the respondent, failing to meet the terms of the SCC means that the Court cannot be satisfied the proposed development is compatible with the surrounding land uses. 150 The respondent also relies on cl 32 which requires that a consent authority, or the Court exercising the functions of a consent authority on appeal, must not consent to a development application unless it is satisfied that the proposed development demonstrates that adequate regard has been given to the principles set out in Div 2. 151 Div 2 contains a range of Principles found at cll 33-39. Relevantly, the respondent contends that the proposed development does not recognise or implement the desirable elements of the location's current character nor contribute to the quality and identity of the area and so fails to achieve the principles set out in cl 33 of the HSPD. 152 According to the respondent, the RACF has the form and function, and intensity of utilities and servicing that is more characteristic of a medium density development and so is in conflict with the adjoining R2 low density residential zone and the RU4 zone in which it is located. The RACF, in particular, will appear as a large institutional building and be even more dominating to Cooyong Road as existing vegetation that could help to screen the new development is proposed to be removed, and considering the higher level of the ground floor to remain above the flood level of the Neverfail Gully Creek. 153 The respondent's urban design expert, Ms Lennon disputed that the building form and siting related to the site's land form as required by cl 33(c)(ii), and preferred the RACF to be turned 90 degrees on the site to present the central courtyard to Cooyong Road. 154 The applicant's urban design expert, Mr Walter considers the RACF to have been placed appropriately on the site, stating that it was a very deliberate design decision to place it there because it is the lowest and the flattest part of the site, and the ILUs were arranged in a stepped form up the site to the east to respond to the rise in topography. 155 Mr Walter described the character of the ILUs in the following ways: 1 Generally the design of the ILUs recall the typical pitched roof form of sheds and agricultural buildings common in rural environs. 2 Verandahs and balconies are captured within the overall form of the building rather than projecting beyond the building's façade. 3 The frontage of the ILUs to Laitoki Road reflects the general width of frontage to existing homes located across the road and in the R2 Low Density Residential zone. 156 The respondent submits that the ILUs development represents a development that is around half the length of the site when viewed from Cooyong Road, which is not compatible with the semi-rural character of the area. Furthermore, according to Ms Lennon, while the ILUs structures may be intended to have the appearance of barns or sheds, they are incompatible with how similar building types are found in agricultural environs due to the way they have been duplicated 'en-masse' on the site. 157 To Mr Walter, this has been addressed through the general arrangement of the ILUs on the site which serve to break down the scale of the development, by 'stepping down' the site and providing what he termed 'fingers and voids' when viewed from Cooyong Road. 158 To Mr Smart, landscape is an integral part of the proposal development that will provide screening between buildings, and in the setback to Cooyong Road. Rather than serve the function of hiding the buildings, Mr Smart described the role of landscape in the proposed development was to complement the design of the building form. 159 In submissions, the applicant identified a range of building types that are permissible in the RU4 zone, and may be considered to result in a similar bulk and scale to the RACF such as respite day care centre, veterinary hospital and the like, as well as recent development in the zone such as the seniors housing development at No.83 Booralie Road. 160 The parties also dispute the appropriate treatment to the public domain addressing Cooyong Road. 161 The applicant proposes to provide a concrete kerb and gutter to Cooyong Road, but wishes retain the grass verge from the back of the kerb so as to avoid any damage to existing trees located in the verge along the southern boundary of the site. 162 To the applicant, avoiding a concrete footpath is an appropriate response in a rural, or peri-urban setting such as the RU4 zone. The common use of the verge by horse riders as part of a bridle track would also suggest a soft landscape shoulder be adopted, according to Mr Smart. Should the Council require a footpath on this frontage, Mr Smart suggests a width of 1200mm, which is narrower than the standard adopted by Council. 163 The respondent's preference is for a 1500mm wide concrete foothpath along this frontage. In her evidence, Ms Lennon stated that a concrete footpath would provide the safest path for those residents of the site who may choose to use this path but may be of more limited mobility. 164 In response, Mr Robertson, for the applicant, submitted that the accessible path that traverses the site with the aid of elevators and the like may be the path preferred by residents and for those reasons. Findings 165 The respondent submits that the Court is not bound by the fact that a SCC has been issued when undertaking an assessment under cl 4.15 of the EPA Act. However, in the event the SCC is relied on by me, the respondent asserts that the proposed development does not satisfy the requirements specified in the certificate to resolve building bulk and scale, and so the Court cannot be satisfied under cl 24(2) of the SEPP HSPD. 166 The SCC was issued 14 July 2017. The scheduled of amendments in Exhibit LL record those amendments made subsequent to the issue of the SCC and include, relevantly in relation to building bulk and scale, the following: 4. RACF reduced and reconfigured from 102 to 90 beds 5. RAC third storey deleted 7. RAC front entry level lowered 8. RAC articulation to Cooyong Road improved with stepped façade, building breaks and provision of balcony terraces 9. RAC Western end wings reduced to single storey 10.RAC FSR reduced from 5,849msqm to 4,482sqm … 1. All third storey ILUs deleted 2. 12 ILUs deleted to reduce total ILUs from 60 to 48 4. ILUs lowered to be more on grade and to reduce bulk and height 6. Roof forms revised and reduced 9. ILU FSR reduced from 7,618sqm to 6,203sqm 167 I am satisfied that the amended plans have adequately resolved building bulk and scale for the purposes of the SCC. 168 I accept the evidence of Mr Walter and Mr Smart that the form and layout of the proposed development has been developed with consideration of the site, and I am satisfied that the proposed development demonstrates that adequate regard has been given to the design principles in Div 2 of the SEPP HSPD as required by cl 32.
7. As Mr Robertson submitted, s 4.15 of the EP&A Act required that the Commissioner consider matters arising from the various relevant documents and other matters called up by the section. This is made clear by the chapeau to s 4.15(1), it being in the following terms: 4.15 Evaluation (1) Matters for consideration - general In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application -
8. In [148] to [150] of the Commissioner's decision, he reproduced, in summary form, the complaints pressed by the Council. In [151], the Commissioner acknowledged that cl 32 of the SEPP calls up the relevant range of design principles in cll 33 to 39 of the SEPP and, relevantly noted that the Council contended that those matters set out in cl 33 of the SEPP (earlier reproduced in this section of my consideration of this ground) were not achieved.
9. In [152] and [153], the Council's position concerning the RACF was set out. Further elements of the Council's complaint, from the evidence of its urban design expert, were set out in [156].
10. The response, on behalf of the Company, to the matters that were raised in the Council's contention (and in the evidence of its urban design expert) were set out by the Commissioner in [154] and [157] to [162], inclusive. As can be seen from the extract of the Commissioner's judgment above, he dealt with this aspect of the Council's contentions at [165] to [168].
11. It is clear, in the context of the complaints made by the Council that the Commissioner has addressed them in his findings in what might be regarded as a concise and shorthand fashion.
12. On this point, it is to be observed that, in the passages earlier described, there is no doubt that the Commissioner has properly summarised the nature of the complaints made by the Council concerning the design of the Company's proposed development. It is clear that the Commissioner considered that the amendments to the proposed development as described by him in [166] did, as he explained in [167], adequately resolve building bulk and scale for the purposes of the Certificate. It is to be observed that the Commissioner was mandated, by Sch 2 of the Certificate, to address the question of resolution of matters relating to building bulk and scale. In [167] of his decision, he appropriately and briefly explains that the amendments set out in [166] provided that resolution.
13. In essence, therefore, that which remains to be considered is whether or not the terms of [168] of the Commissioner's decision adequately addressed what the Council raised with him concerning character, compatibility with the locality, neighbourhood amenity and streetscape matters. In his summary of the matters pressed on behalf of the Council, the Commissioner acknowledged, in [151] to [153], the Council's position in the evidence given by its urban design expert on this point. However, it is to be observed that the Commissioner indicated that he had accepted the evidence given by two witnesses who gave evidence on behalf of the Company. Their evidence can be seen, in summary form, at [154] to [159] of his decision.
14. Although the Commissioner, in the latter part of [168], does not expressly address, in terms, the Council's complaint, he does say that, on the basis of the evidence of the Company's experts, that: … I am satisfied that the proposed development demonstrates that adequate regard has been given to the design principles in Div 2 of the SEPP HSPD as required by cl 32.
15. As I have earlier set out, the relevant design principles called up require, in cl 33(a), that the question of character in its context are called up for consideration.
16. Although the Commissioner's reasoning here could be described as laconic, it is sufficient that he has set out the reasons why he has accepted that the questions of bulk and scale have been resolved for the purposes of the Certificate (and, therefore, to the extent that bulk and scale arose for consideration in a broader s 4.15 of the EP&A Act context, were also necessarily resolved for that purpose). In addition, he has also explained, on the basis of his acceptance of the evidence of Mr Walter and Mr Smart (earlier summarised by him), that the question of character has also been addressed and resolved (in a cl 33(a) of the SEPP context - and, by necessary inference, in a s 4.15 of the EP&A Act context).
17. As earlier noted, Commissioner decisions are not to be analysed as if they had been drafted with legal precision (Brimbella). On the basis of my consideration above of the elements of the Commissioner's decision at [168], I am satisfied that he had, by necessary implication, sufficiently applied his mind to the matters raised by this contention. Although his reasoning is very brief, in the context it is adequate.
18. Ground 8 is rejected.

Introduction

1. Mr Stafford's written submissions summarised this ground as being that the Commissioner had: (h) misconstrued and misapplied clause 26 of SEPP HSPD in the course of considering the exception submission under clause 4.6 of Warringah Local Environmental Plan 2011 (WLEP) because he took the underlying objective of clause 26 to be to "ensure that the future residents of the development will have access to all services and facilities required by the clause that they would reasonably require" (emphasis added) which is inconsistent with the terms of clause 26 and the broader objectives of that clause identified in other decisions.

The Council's position

1. Mr Stafford submitted that the Commissioner erred when he deemed the entirety of cl 26(1) to be subject to the qualification of "reasonably require" when in fact it only applied to the latter part of subcl 26(1)(a). Mr Stafford argued that there was no cause in the proper construction of the clause to read the objective of the clause down as this qualification only applies to one part of a subclause. This represents a misdirection as to the objectives of cl 26; this misdirection ought to be considered an error of law.
2. With respect to Ground 9, the Council maintained that the Commissioner put a gloss on the statutory language contained within cl 26. The entire clause is not subject to the qualifying term of "reasonably require".

The Company's position

1. Mr Robertson rejected Ground 9 in its entirety as "embarrassing". He submitted that Information Gateways stood for the proposition that the underlying purpose of cl 25 of SEPP (Seniors Living) 2004, being the predecessor to cl 26, was to ensure that residents will have access to services referred to within the clause.

Consideration

1. In Principal Healthcare Finance Pty Limited v Council of the City of Ryde [2016] NSWLEC 88, Pain J set down for determination as a separate question: Whether clause 26 of the State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 is a development standard amenable to clause 4.6 of the Ryde Local Environmental Plan 2014 or a prohibition.
2. In Principal Healthcare Finance Pty Ltd v Council of the City of Ryde [2016] NSWLEC 153 (Principal Healthcare [2016] NSWLEC 153), Robson J held that cl 26 embodied a development standard and therefore was amenable to be addressed by an application to seek an exemption from compliance. His Honour set out a detailed explanation as to why this was the case. It is to be noted that Dixon SC subsequently adopted his Honour's reasoning and explained why she did so in Australian Nursing Home Foundation Limited v Ku-ring-gai Council [2019] NSWLEC 1205 (Australian Nursing Home Foundation).
3. In this instance, as noted at the commencement of this decision, the LEP applies to the site. The LEP contains a beneficial and facultative provision, cl 4.6, a provision by which it is possible to seek an exception to compliance with a development standard. It is unnecessary to set out the entirety of the process by which such a request can be made and is to be assessed. However, it is appropriate to note the objectives of the clause. These are 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.
4. A request pursuant to cl 4.6 of the LEP seeking to be exempt from compliance with the development standard contained in cl 26 of the SEPP for the RACF element of the Company's proposed development was submitted to the Commissioner. That request, prepared by the Company's expert town planner, Mr Minto, became Exhibit JJ before the Commissioner. A copy of this exhibit was in evidence in these appeal proceedings (Appeal Book, Volume 2, Tab 30). In that document, at Appeal Book, folio 1028, the cl 4.6 request says: This clause 4.6 submission has been prepared, having regard to recent judgements of the Land & Environment Court of NSW including Australian Nursing Home Foundation Home Foundation Limited v Ku-Ring-Gai Council [2019] NSWLEC 1205. This submission relies upon and is to be read in conjunction with the following documents: • Evidence Related to Clause 4.6 Submission: Residential Aged Care Facility, 58 Laitoki Road, Terrey Hills prepared by Judith Stubbs & Associates and dated 3rd May 2019. • Evidence Related to Clause 4.6 Submission: Residential Aged Care Facility -Supplementary Report, 58 Laitoki Road, Terrey Hills prepared by Judith Stubbs & Associates and dated 14th May 2019
5. Exhibit JJ then proceeded to address the various requirements of cl 4.6 of the LEP. At Appeal Book, folio 1034, under the heading, "5 Is the proposed development 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", Mr Minto commenced this discussion by addressing what he considered to be the objective of cl 26 of the SEPP. In this regard, he wrote: Whilst there is no stated objective in relation to clause 26, it is considered that the underlying objective is to ensure that the future residents of the development will have access to all services and facilities required by the clause that they would reasonably require.
6. At this point, it is appropriate to note that, during the course of the hearing before the Commissioner, concurrent oral evidence was given on Tuesday, 21 May 2019 by:

• Ms Haidari, a principal planner employed by the Council;
• Ms Lennon, architect and urban designer employed by the Council;
• Mr Minto; and
• Dr Stubbs, expert social planning consultant for the Company. I note, however, that I do not have any of the expert reports of these witnesses (or their joint reports) that were in evidence before the Commissioner.

1. The concurrent evidence of these witnesses is recorded across 43 pages of transcript (folios 205 to 247 of the Appeal Book). There was limited cross‑examination of Mr Minto concerning the objective of cl 26 of the SEPP. Mr Stafford questioned Mr Minto on this point, cross-examination which is recorded at folio 232, line 3 to folio 233, line 11. This cross-examination is reproduced below: STAFFORD: Mr Minto, do you accept that an objective of clause 26 of the Housing for Seniors or People with a Disability SEPP is to ensure that older people and people with disabilities have access to public transport or shops and services and are able to walk to or travel to bus stops and services by wheelchair or a motorised mobility device? WITNESS MINTO: No. So if we, if we turn to page 9 of the objection, I've identified there what I believe the underlying objective of the provision is, and that is to essentially ensure that the proposal through the provision, the proposal - the underlying objective is to ensure that the future residents of the development will have access to all services and facilities required by the clause that they would reasonably require and I think that was the approach that was adopted by the Court in the Australian Nursing Home Foundation Home Foundation matter. STAFFORD: In the Australian Nursing Home Foundation Home Foundation matter, though, all of the services were actually provided on site, weren't they? That's the distinction here. WITNESS MINTO: The difference, well, I mean, the difference there was that the proponent in that was actually an aged care provider and they had the benefit of an existing facility that they were drawing their, their information and data from, but there's no reason to believe that consistent with the evidence of Dr Stubbs that for a provider to operate this centre that they would be providing exactly those same range of services in order to fulfil their legislative requirements. STAFFORD: Let me suggest to you that in the decision to which you refer, the services were proposed as part of the proposal and that was the defining feature there. WITNESS MINTO: But if we go, if you look at some of the services provided, there were, there were simple, you know, letters that I think were criticised before in terms of there was no, no sort of binding agreement that someone was going to actually do something. There was just a letter to say, you know, I provide tai chi classes and I'm going to attend the facility. It was as simple as that for a lot of those things. STAFFORD: Let me suggest to you that another objective of clause 26 of SEPP HSPD is to provide suitable pathways to access shops or services or a transport service to shops or services. WITNESS MINTO: Yes, ordinarily, but this proposal does not rely upon those external pathways. STAFFORD: On page 9, you commence your public interest assessment and in paragraph (i) you say that, "It's considered to be in the public interest then that the underlining objective of the standard will be satisfied." If you're asked to assume that a purpose of clause 26 of the SEPP is to ensure that older people and people with disabilities have access to public transport or shops and services and are able to walk to or travel to bus stops and services by wheelchair or a motorised mobility device, that that objective is not met by the proposal. WITNESS MINTO: No, I don't agree. So if we, if we look at that question 5 on page 9, so I've stated there what I understand to believe, what I understand to be the underlying objective of the provision and then I have stated there that I am satisfied the proposal through the provision of the required services satisfies that provision.

Introduction

1. In the Commissioner's decision, the combination of what he wrote at [92] and [98] makes it clear that he was of the opinion that cl 26 of the SEPP applied to the RACF but that, as a consequence of cl 43 of the SEPP, it did not apply to the ILU element of the Company's proposed development.
2. Mr Stafford's written submissions summarised this ground as being that the Commissioner had "misconstrued clause 26 of SEPP HSPD in finding that it does not apply to serviced self-care housing".

The Council's position

1. With respect to Ground 10, Mr Stafford proposed that the Council's argument put to the Commissioner remained valid in support of this ground. The Council put that: Clause 43 affords an additional convenience to residents of serviced self-care housing by providing them with a dedicated facility-based transport service, but it does not remove the obligation to provide connection to the public transport network (if the relevant facilities and services are not within 400m) contemplated by clause 26. (emphasis in original)
2. Mr Stafford relied upon the submissions made to the Commissioner that Cowdroy J's finding (in Information Gateways) regarding cl 43 was obiter dicta (Transcript, 19 March 2020, p 56). On this point: But if you feel that you're bound by Cowdroy J and it's not obiter for the reasons I've outlined, firstly we would say even if it's obiter, we say it's wrong. If it isn't obiter, I would say for the differences between the clauses that I've asserted, that cl 26 still has work to do in respect of serviced self-care housing. That isn't wholly addressed by putting on a bus for ten people. At least ten people. (Transcript, 19 March 2020, page 57).
3. He submitted: There's nothing in this clause - certainly no express words anywhere in the legislature that says that cl 26 is displaced by cl 43 in the context of serviced self-care housing. (Transcript, 19 March 2020, page 55).
4. Mr Stafford also submitted that the Commissioner committed an error of law when he concluded that cl 26 did not apply to serviced self-care housing (Ground 10). The Commissioner reached this conclusion on the basis that cl 43 of the SEPP applied to serviced self-care housing. Mr Stafford put that there is no basis for reaching this conclusion.
5. The Commissioner appeared to have reached such a conclusion by relying on Information Gateways for the proposition that cl 43 displaces cl 26 in respect of serviced self-care housing. The Council put it that, since there were some respects in which cl 43 differed from cl 26 and that Information Gateways had been previously found to not be binding on this question, the Commissioner misdirected himself on a question of law.
6. The Council noted that this ground of appeal, if successful, does not vitiate the decision but, rather, makes the proposal incapable of approval unless a cl 4.6 variation to cl 26 with regard to serviced self-care housing is upheld.

The Company's position

1. Mr Robertson submitted that the Council had challenged the Commissioner's decision, insofar as his finding that cl 43 applied to the ILUs to the exclusion of cl 26, resulted from the Commissioner relying on Information Gateways as authority. Contrary to the Council's submissions, the finding is not obiter. Mr Robertson put that: SEPP HSPD cl 43(1)(a)(i)-(iii) requires the provision of a bus service to access exactly the same services which, under cl 26(1)(a)-(c) must be located within 400 metres of the development, along a mostly level suitable access pathway. It makes no sense to require that a bus be provided to access services that are within easy walking distance. Therefore, adopting a purposive construction, cl 43 should be read as covering the field in relation to development of serviced self-care housing on land that adjoins land zoned primarily for urban purposes. This construction is also consistent with the beneficial objectives of SEPP HSPD, which include increasing the supply and diversity of residences that meet the needs of seniors or people with a disability, and setting aside local planning controls that would prevent the development. If land that adjoins land zoned primarily for urban purposes could only be developed for the purpose of serviced self-care housing if it was within 400 m of specified local services, then this would act as a high bar to development, since such services are unlikely to be found on the urban fringe.
2. A separate note for the Company was also provided to me concerning the interaction of cll 26 and 43 of the SEPP. This note was in the following terms: SEPP HSPD cl 26 and cl 43 both deal with the subject-matter of access to facilities. Clause 26 applies to all development applications made pursuant to Chapter 3, that is, development which relies on SEPP HSPD for its permissibility (see cl 15). Clause 43 applies to a subset of Chapter 3 development, that is development for the purpose of serviced self-care housing on land that adjoins land zoned primarily for urban purposes. The maxim expression unius est exclusio alterius applies in this situation. It was translated in R v Kirby;Ex parte Boilermaker's Society of Australia (1956) 94 CLR 254 at 270 as "affirmative words appointing or limiting an order or form of things may have also a negative force and forbid the doing of the thing otherwise". This maxim was applied by Ferdinands v Commissioner for Public Employment (2006) 225 CLR 130 at [54]. In that case, there was a specific statute governing in great detail the circumstances in which a police officer could be dismissed, and the procedure and rights of appeal. Meanwhile, a general employment statute gave all state employees the right to seek relief from unfair dismissal. Notwithstanding that it was possible to comply with both statutes by treating the general unfair dismissal rights as additional to the rights as a whole, the police-specific statute revealed a legislative intention to deal comprehensively with the availability of review for dismissed police officers. Therefore the general employment statute did not apply (per Gummow and Hayne JJ at [54]-[57], Gleeson CJ and Callinan J agreeing). This principle can be applied to provisions in the same instrument as well as provisions within different instruments. A classic example from planning is the line of cases which says that the specific constraints on the imposition of conditions requiring a dedication of land free of cost in s.7.11(1)(a) (previously s 94) of the EPA Act cannot be avoided by relying on the general power to impose conditions of consent at s 4.17 of the EPA Act (previously s 80A and, before that, s 91): Fitch v Shoalhaven City Council(1977) 67 LGRA 165 at 170, approved by the Court of Appeal in Fairfield City Council v N & S Olivieri Pty Ltd [2003] NSWCA 41 at [8]-[12] and [73]-[75].

The Council's oral submissions in reply

1. Mr Stafford expanded on the issue of displacement for Ground 10 (Transcript, 23 March 2020, page 7, lines 40 to 54): Mr Robertson took you to Burt v Barry Roberts which deals with whether there are two grounds on which a finding is made. But, your Honour, I would say this is a very different situation. We're really dealing with the different proposition in ISPT. In, and this is in connection with whether Information Gateways is binding. We know from, sorry, we know from Information Gateways that the Council was submitting in, in that matter that both of the clauses ought be considered to apply and that submission was made at, one can see at [32] of Information Gateways and then the finding is ultimately made by his Honour in Information Gateways at [34] that cl 75 operates to exclude cl 25 in relation to those developments referred to in cl 75. So this was a submission made by the party that was ultimately unsuccessful, sorry, the party that was ultimately successful in the proceedings that was rejected by the Court. I acknowledge that a submission was accepted for it to be sent back to the Registrar's List, presumably ultimately to give the applicant another crack at being able to put this information on, but the bottom line, in my submission, your Honour, is it's obiter because in connection with the question that was here before the Court, the Court was finding against the, against a submission of the party that was ultimately successful and for the reasons in ISPT it ought not be considered to constitute part of the ratio in connection with the proceedings.

Consideration

1. It is appropriate to commence my consideration of this ground by setting out the terms of cll 26 and 43 of the SEPP (to the extent that they are here relevant). The relevant terms of cl 26 are: 26 Location and access to facilities (1) A consent authority must not consent to a development application made pursuant to this Chapter unless the consent authority is satisfied, by written evidence, that residents of the proposed development will have access that complies with subclause (2) to - (a) shops, bank service providers and other retail and commercial services that residents may reasonably require, and (b) community services and recreation facilities, and (c) the practice of a general medical practitioner. (2) Access complies with this clause if - (a) the facilities and services referred to in subclause (1) are located at a distance of not more than 400 metres from the site of the proposed development that is a distance accessible by means of a suitable access pathway ……, or (b) in the case of a proposed development on land in a local government area within the Greater Sydney (Greater Capital City Statistical Area) - there is a public transport service available to the residents who will occupy the proposed development - (i) that is located at a distance of not more than 400 metres from the site of the proposed development and the distance is accessible by means of a suitable access pathway, and (ii) that will take those residents to a place that is located at a distance of not more than 400 metres from the facilities and services referred to in subclause (1), and (iii) that is available both to and from the proposed development at least once between 8am and 12pm per day and at least once between 12pm and 6pm each day from Monday to Friday (both days inclusive), and the gradient along the pathway from the site to the public transport services (and from the public transport services to the facilities and services referred to in subclause (1)) complies with subclause (3), or
2. The terms of cl 43 are: 43 Transport services to local centres (1) Aconsent authority must not consent to a development application made pursuant to this Chapter to carry out development for the purpose of serviced self-care housing on land that adjoins land zoned primarily for urban purposes unless the consent authority is satisfied that a bus capable of carrying at least 10 passengers will be provided to the residents of the proposed development - (a) that will drop off and pick up passengers at a local centre that provides residents with access to the following - (i) shops, bank service providers and other retail and commercial services that residents may reasonably require, (ii) community services and recreation facilities, (iii) the practice of a general medical practitioner, and (b) that is available both to and from the proposed development to any such local centre at least once between 8am and 12pm each day and at least once between 12pm and 6pm each day.
3. The question of the interaction of these clauses (or what might be the exclusionary effect of cl 43 in its application to the ILU aspect of the Company's proposed development) were set out at [76] to [82] of the Commissioner's decision where he set out the competing positions of the Company and the Council.
4. Unsurprisingly, the position advanced for the Company was that cl 43 ousted the operation of cl 26, whilst the Council submitted that the contrary position was correct and that both clauses applied to the proposed development.
5. The Commissioner felt that he was, with respect to the ILU element of the proposed development, bound by the decision of Cowdroy J in Information Gateways where his Honour dealt with the relationship between the two provisions (to identical effect) in the former SEPP (although, in that earlier instrument, the numbering of the clauses differed). His Honour observed, at [33] and [34]: 33 Both cll 25 and 75 are mandatory, but while cl 25 is a general provision relating to development for seniors housing, cl 75 pertains solely to development of serviced self-contained housing on land which adjoins lands zoned primarily for urban purposes. 34 Clauses 25 and 75 are each directed to ensuring that residents of seniors living developments will have access to the facilities which are identically referred to in each of such clauses. Clause 75 ensures the provision of transportation to the listed facilities where the development is of the type and on land referred to in the said clause. Both clauses prima facie are operative. It would be illogical however to require the provision of a bus service for the residents where the development was located within 400 m of the facilities. Clause 75 is clearly intended to operate in those circumstances where the development is located further distant than 400 m from the nominated facilities. As such, cl 75 operates to exclude cl 25 in relation to those developments referred to in cl 75.
6. In the present circumstances, the Commissioner applied the final sentence of [34] of his Honour's decision and concluded that cl 43 of the SEPP operated to exclude the operation of cl 26 of the SEPP.
7. In Mr Stafford's submissions, he advanced the proposition that neither the Commissioner nor I was bound by his Honour's decision, in this regard, in Information Gateways. He proposed that this conclusion should be adopted, advancing two bases for such a conclusion. The first was that the proposition extracted above from Information Gateways was obiter dicta and, therefore, not binding. In the alternative, he submitted that the decision was clearly wrong on a proper construction of the SEPP.
8. As I am satisfied that the second of these propositions is correct, it is unnecessary to explore, further, any analysis of the context in which his Honour's observations were made. In expressing this conclusion, I am mindful of what was said by the Court of Appeal in Gett v Tabet [2009] NSWCA 76, where there was a discussion of the meaning of the phrase "plainly wrong". The Court of Appeal observed, at [294] and [295]: 294 The phrases "plainly wrong" or "clearly wrong" can be understood to focus on at least one or more of the following attributes of a ruling: (a) the fact of error is immediately (in the sense mentioned in [283] above) apparent from reading the relevant judgment; (b) the strong conviction of the later court that the earlier judgment was erroneous and not merely the choice of an approach which was open, but no longer preferred (cf Chamberlain and Clutha), and (c) the nature of the error that can be demonstrated with a degree of clarity by the application of correct legal analysis. 295 In our view, the first possibility is liable to be highly subjective and should not be required, where the other two possibilities are satisfied. The existence of (b) and (c) is a precondition to the exercise of the power to depart from earlier authority.
9. In this context, I am satisfied that a proper application of (b) and (c) above, when applied to the element of Information Gateways earlier extracted, shows that the conclusion there expressed was clearly wrong and is not to be followed.
10. The starting point for this analysis is to consider the context in the SEPP where the two provisions are located. The SEPP contains a number of chapters. Chapter 3 encompasses a wide range of provisions, some of which apply specifically to developments proposed for land zoned primarily for urban purposes (for example infill self-care housing - see cl 13(2)) or others that only apply to development proposed to be constructed on land adjoining land zoned primarily for urban purposes (see cl 17 and Pt 5 of Ch 3).
11. All the relevant provisions, including the two clauses here requiring consideration, are contained in Ch 3. Relevant to understanding what is addressed by this chapter of the SEPP, it is appropriate to reproduce cll 14 and 15 (they being located in Pt 1 General of the Chapter). These clauses are in the following terms: 14 Objective of Chapter The objective of this Chapter is to create opportunities for the development of housing that is located and designed in a manner particularly suited to both those seniors who are independent, mobile and active as well as those who are frail, and other people with a disability regardless of their age. 15 What Chapter does This Chapter allows the following development despite the provisions of any other environmental planning instrument if the development is carried out in accordance with this Policy - (a) development on land zoned primarily for urban purposes for the purpose of any form of seniors housing, and (b) development on land that adjoins land zoned primarily for urban purposes for the purpose of any form of seniors housing consisting of a hostel, a residential care facility or serviced self-care housing.
12. The two clauses that are here in contest are located in different elements of Ch 3. Clause 26 is contained in Pt 2 Site Related Requirements. There is nothing elsewhere in any element of Ch 3 that indicates that the clauses in Pt 2 of Ch 3 are other than of general applicability to all types of development for seniors housing rendered permissible by the SEPP.
13. Clause 43, on the other hand, is contained in Pt 5 Development on land adjoining land zoned primarily for urban purposes of Ch 3. This clause applies, as can be seen from its terms as earlier set out, to seniors housing development that is of the serviced self-care housing typology and is proposed to be constructed on land that adjoins land zoned primarily for urban purposes. There is nothing in Pt 5, a Part which contains a limited range of specific criteria applicable to housing of this type, that says expressly that cl 43 ousts cl 26.
14. Two questions then arise to be considered in this context of absence of specific ouster. The first is whether it is possible to comply with both provisions. The second is whether it is possible for a development proponent to seek to set aside the necessity to comply with the requirements of both clauses.
15. As to the first proposition, from a reading of cll 26 and 43 in close sequence, it is clear that the terms of both clauses are capable of being satisfied by one or other of the elements of cl 26(2)(a) or (b) together with cl 43. There is, therefore, no inherent contradiction between the two provisions (onerous though compliance with both might be considered).
16. Because it is possible for both provisions to be complied with, the circumstances discussed in the separate note provided on behalf of the Company do not here arise as that note addressed circumstances where there was an inherent and irreconcilable difference between two provisions and thus the necessity to determine whether or not the specific ousted the general.
17. It is, therefore, necessary to consider whether a development proponent can seek to set aside the necessity for compliance with both. The answer, clearly, is "yes". This is because what is required to satisfy cl 26 is a development standard and it does not act as a prohibition (as earlier noted concerning availability of cl 4.6 of the LEP).
18. In this instance, as the Commissioner noted at [77] of his decision, the Company had submitted a written request pursuant to cl 4.6 of the LEP to be exempted from compliance with the provisions of cl 26 of the SEPP with respect to the RACF element of its proposed development. At [103], he observed: The applicant's written request, made pursuant to cl 4.6 of the WLEP, seeks to contravene the provisions of cl 26 of the SEPP HSPD, already reproduced at [52] as it relates to the RACF.
19. The Commissioner considered the merits of this cl 4.6 request at [105] to [131] of his decision. He concluded, as set out at [132]: For those reasons the applicant's written request made pursuant to cl 4.6 of the WLEP to contravene cl 26 of the SEPP is approved.
20. From all of the foregoing, it can be seen that the appropriate conclusions are that: 1. Clauses 26 and 43 both applied to the Company's proposed development; 2. Both clauses were capable of being given effect without there being an irreconcilable tension between them if complete compliance was required; 3. The ability to make a request pursuant to cl 4.6 of the LEP to seek to avoid compliance with cl 26 in its application to the ILU element of the Company's development was available to the Company because, consistent with Robson J's reasoning in Principal Healthcare [2016] NSWLEC 153, cl 26 embodied a development standard capable of being the subject of such a request; 4. Absent the granting of a request pursuant to cl 4.6 of the LEP, the Company was obliged to satisfy the requirements of both clauses; and 5. Such a request with respect to the ILU element of the Company's proposed development would have been capable of being dealt with by the Commissioner in the same fashion as he had addressed the cl 4.6 request with respect to the RACF element of the proposed development.
21. As the Commissioner was led into error by his reliance on Information Gateways (and he is not to be criticised for this), it follows that the Council's complaint that he was obliged to (but did not) address cl 26 of the SEPP in the context of the ILU element of the proposed development was an error of law.
22. In reaching this conclusion, I am not to be taken to be criticising the analysis that the Commissioner did apply to the request pursuant to cl 4.6 of the LEP concerning the RACF element of the Company's proposed development, nor to be expressing any view as to the adequacy or otherwise of the cl 4.6 request which the Commissioner did not address - one seeking through that mechanism for the Company to avoid the necessity of compliance with cl 26 of the SEPP for the ILU element of the proposed development.
23. Ground 10 is upheld.

The approach to the absence of a current Site Compatibility Certificate

Introduction

1. In Zhiva Living Dural Pty Limited v Hornsby Shire Council (No 3) [2019] NSWLEC 152 (Zhiva Living), I had held that the expiry of the Certificate meant it was appropriate that, pursuant to s 56A(2)(b) of the Court Act, the appeal should be dismissed, despite the fact that there were proper bases to conclude that the Commissioner there involved had committed legal error that might otherwise warrant remitter.
2. Mr Robertson proposed that I ought not adopt the course I had taken in Zhiva Living. He advanced a range of propositions founded on aspects of the Environmental Planning and Assessment Regulation 2000 and what he put were parallels with issues relating to owner's consent for proposed developments. For the reasons which follow, it is unnecessary for me to address those submissions because, as outlined below, I do not propose to dismiss these proceedings.
3. Since reserving my decision in this matter, Preston CJ delivered his decision in Ballina Shire Council v Palm Lake Works Pty Ltd [2020] NSWLEC 41 (Palm Lake) - a decision where his Honour did not determine the development application by refusal but remitted the matter to the Commissioner for further consideration on the merits with the observation, at [135]: 135 Palm Lake submitted that remitter is futile as the site compatibility certificate has expired, so that consent can no longer be granted to the proposed seniors housing development. This might be so, but Palm Lake can apply for another site compatibility certificate. In the meantime, it can seek an adjournment of the remitted proceedings before the Commissioner to await the outcome of its application for another site compatibility certificate.
4. The difference between Zhiva Living and Palm Lake was that, in Zhiva Living, the Commissioner had, in the first instance, determined that the development should be refused consent and, as a consequence, there was no development consent that would be forgone by the upholding of the appeal against that Commissioner's decision. In Palm Lake, as here, the Commissioner had determined in the first instance that the outcome should be the grant of a development consent to the proposed seniors living project.
5. There, as here, the local council appealed on the basis of what was said to be errors of law in that Commissioner's decision-making process. There, as here, such legal flaws were established. If I was to adopt, in these circumstances, the approach I had taken in Zhiva Living by utilisation of the power available to me pursuant to s 56A(2)(b) of the Court Act to refuse development consent to the Company's proposal, I would be denying it the potential of the benefit of the consent already obtained as a result of the Commissioner's first instance determination.
6. Under the circumstances, I am satisfied that the appropriate course to follow here is to adopt the approach taken by Preston CJ in Palm Lake.
7. There, as here, the respondent to the proceedings was seeking to defend the development consent that had been given to it as the outcome of the Commissioner's merit consideration. Such a development consent, if successfully defended, is a matter of considerable benefit to a development proponent. Equally, loss of such a consent is a considerable detriment. This is a factor to which it is appropriate to give considerable weight in my assessment of the appropriate process outcome in these proceedings.
8. In taking this approach, I am not to be taken to be expressing any merit opinion concerning this development proposal, merely that it is inappropriate to deny the Company the opportunity to establish that it should continue to have the benefit of a development consent of the type proposed for its site.
9. In doing so, it is also unnecessary to embark on an exploration (fascinating though that might be) of the propositions advanced by Mr Robertson as to whether or not power exists pursuant to s 39(6) of the Court Act for the Court to grant a fresh Certificate. Nor is it necessary to explore the proposition that, in some fashion not readily able to be discerned, the power available to me pursuant to s 25B of the Court Act to preserve this development consent could be exercised in the circumstances of an appeal against the Commissioner's decision pursuant to s 56A of the Court Act.
10. Given that, for the reasons set out below, I have concluded that the appropriate outcome of the Commissioner's decision-making miscarrying is that, and that the appropriate consequence on remitter is that the matter return for proper consideration but to a different Commissioner, the Company will need to resolve the question of the availability of a new Certificate before any fresh, valid development consent could be granted (if this was to become the outcome of the proper merit consideration of the Company's development proposal). The timing of, and preparation for, such a hearing on remitter are matters to be addressed with the Commissioner to whom the Chief Judge assigns the matter.

The Council's submissions

1. Mr Stafford proposed, as a general proposition, that there should be an exclusionary remitter if the appeal was upheld (unless the Council's sole success was with respect to Ground 10).
2. Of the bushfire grounds in particular, the Council submitted that Ground 4, involving a failure to give reasons, was a failure which was far from the discrete and narrow failure to give reasons as considered by Robson J in Gary Abrams v The Council of the City of Sydney (No 4) [2019] NSWLEC 71 (Gary Abrams) and held not to warrant an exclusionary remitter (at [70] to [73]).
3. Grounds 6 to 9 involve prejudgement of issues of fact in the course of wrongly applying the law. It is submitted that this situation is analogous to the circumstances founding exclusionary remitter in Initial Action at [136]. Council conceded that success on Ground 10 would not found an exclusionary remitter of itself.

The Company's submissions

1. Mr Robertson submitted that there was no proper basis mandating an exclusionary remitter
2. He rejected the proposition that an exclusionary remitter would be appropriate if Grounds 1 to 4 and 5 to 9 were upheld. Though the Company conceded that the Commissioner may have created a perception that he would likely approve the proposed development again, Mr Robertson emphasised the distinct difference between that and prejudgement.
3. He also advanced the following propositions: 1. Not every case in which a Commissioner's decision has been set aside by a s 56A appeal will justify exclusionary remitter: Baulkham Hills Shire Council v Basemount Pty Ltd (2003) 126 LGERA 339 (Basemount) at [23]; and 2. Not in every case in which there has been prejudgement will the proceedings be remitted to a different Commissioner. Such orders must be made "sparingly": Seltsam v Ghales in Castle Constructions Pty Ltd v North Sydney Council (2007) 155 LGERA 52 at [72]. In order to justify exclusionary remitter, the findings must have "involved pre-judgment of quite a high order": Basemount at [24].
4. He further submitted that the Council had failed to explain why Ground 4 would justify exclusionary remitter, other than citing that the Commissioner has already decided issues of fact favourably to one party. However, this would be true of any Class 1 appeal. As put by Mr Robertson: In Gary Abrams v the (sic) Council of the City of Sydney [2019] NSWLEC 71 at [72]-[73] Robson J held that there was no reasonable apprehension that the Commissioner would not decide the case impartially on a remitter, in circumstances where the sole ground for setting aside the Commissioner's original decision as a failure to give reasons for a discrete finding.
5. Grounds 6 to 10 each involve allegations of narrow misapplication of the statutory framework. It is reasonable to assume that the Commissioner would remake the decision correctly if remitted. Council has not explained why remitter would create a reasonable apprehension of prejudgement.

Consideration

1. In the final analysis, the sole factor that needs to be weighed, in my assessment, is the conventional one addressing the question of the defects in this Commissioner's decision-making process, as revealed during the course of this appeal, were such that the degree of prejudgement involved disclosed that the initial Commissioner, if the matter was to be remitted to him, would not be able to bring an open mind to the fresh consideration of the matters where his original decision-making process had been shown to be defective.
2. Without undertaking an extensive canvassing of the principles that here arise, it is sufficient that I cite what was said by Robson J in Gary Abrams (a decision relied upon by the Company in these proceeding). His Honour there said (at [72]): 72 … While there may be situations where previous decisions of a judicial officer or commissioner may generate an expectation that they are likely to decide issues adversely to one of the parties, this does not mean that the outstanding issues would be considered other than with an impartial and unprejudiced mind. Further, there are other types of error where an exclusionary remitter order may be appropriate, such as where proceedings have been conducted in such a way as to give rise to a reasonable apprehension of bias, or where there has been a denial of procedural fairness in the determination of proceedings below. …
3. I am satisfied that the defects in this Commissioner's decision-making process are sufficiently egregious that public confidence that a further decision-making process would be undertaken in the fair and balanced fashion required, without prejudgement, would not be available to a properly informed lay observer. As a consequence, the flaws revealed in the Commissioner's decision-making process here involved are ones where there would be a reasonable apprehension of bias if the matter was remitted to him.
4. Therefore, I am satisfied that an exclusionary remitter is warranted, thus rendering it necessary for the parties to discuss how the future conduct of the remitted Class 1 appeal is to be conducted. To enable this to occur, I do not propose to return the matter to the Registrar's list forthwith but to allow a short period for discussion between the parties before their attendance for the purposes of making further directions for the conduct of the remitted appeal.

Costs

1. I have concluded that the Council has succeeded on Grounds 1, 4 and 10. As the Council succeeded on Ground 1, it was not necessary to address Ground 2. Had it been necessary to do so, I would have upheld Ground 2. The Council has failed on Grounds 3, 5, 6, 7, 8 and 9.
2. In appeals such as these, costs ordinarily follow the event. The practical result of these proceedings, in the sense used in Sze Tu v Lowe (No 2) [2015] NSWCA 91 at [39], the event is that the Council's appeal has been upheld. However, as it is possible that the Company may wish to propose some alternative costs order because the Council did not enjoy success on all grounds pleaded, provision for that is made, on a contingent basis, in the orders set out below.

Orders

1. The orders of the Court are; 1. The appeal is upheld; 2. The 21 June 2019 decision and 12 July 2019 orders of Commissioner Horton are set aside; 3. Leave is granted to the Respondent to amend the application for development consent to rely on the amended plans that were identified in Condition 1(a) of Annexure A to the decision of Commissioner Horton, being the conditions referred to in 175 of the Commissioner's 12 July 2019 addendum; 4. The matter is set down, on 18 August 2020, before the Registrar for further directions; 5. The proceedings are remitted to a commissioner, other than Commissioner Horton, to be determined according to these reasons for judgment; 6. Unless the Respondent notifies my Associate by 4.30 pm on 14 August 2020 that it wishes to be heard to propose some different costs order, the Respondent is to pay the Applicant's costs of the appeal as agreed or assessed; and 7. The exhibits are returned.

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: 03 August 2020