Saffioti v Kiama Municipal Council

Judgment (7 paragraphs)

[1]

Chilcott C File Number(s): 2016/310397

[2]

Nature of appeal and outcome

Ms Saffioti wishes to erect a new dwelling on a different part of her bush block at Broughton to that on which an existing dwelling house stands. After erection of the new dwelling, the existing dwelling would be "decommissioned" and used as an artist's studio.
The erection and use of a building for a dwelling is prohibited on land zoned E2 Environmental Conservation under Kiama Local Environmental Plan 2011 ("KLEP"). However, Kiama Municipal Council ("the Council") and Ms Saffioti agreed that the use of the existing dwelling and the land on which it stands is an existing use under s 4.65 of the Environmental Planning and Assessment Act 1979 ("EPA Act"). This Court determined that the proposed new dwelling is permissible with development consent under cl 42 of the Environmental Planning and Assessment Regulation 2000 ("EPA Regulation"): Saffioti v Kiama Municipal Council (2017) 225 LGERA 136; [2017] NSWLEC 65.

Alleged denial of procedural fairness

Ms Saffioti contended that she had a legitimate expectation that, if the Commissioner had concerns about the proposed development, he would provide an "amber light" to afford Ms Saffioti the opportunity to address those concerns by providing amended plans or further information.
During the hearing, deficiencies and inconsistencies in Ms Saffioti's evidence in support of the development application had been exposed. One particular deficiency was that the location of the proposed dwelling as depicted in an ecological report that mapped the vegetation communities was different to the location of the proposed dwelling in the bush fire expert's report, the difference being up to 20m. The Commissioner referred to this discrepancy in [107(5)] and [109(4)] of the judgment. The scale of these mapping errors introduced uncertainty as to the scale and nature of the proposed development's impacts on native vegetation: [109(5)] of the judgment. This uncertainty meant that the Commissioner was not able to be satisfied as to the matters under cl 6.(4) of KLEP (at [111] and [161(1)] of the judgment) or that the proposed development can achieve controls C7, C10, C25, C46 or C48 (at [132(3)], [133(1)], [137(1)], [142(1)], [144(1)] and [161(6)] of the judgment).
Ms Saffioti noted that her counsel had submitted in closing address before the Commissioner that if the Commissioner had a concern in terms of the accuracy of the information and mapping, "the amber light should be provided" (Transcript, 11/05/19, pp 51 and 63).
The amber light approach has been advocated by some Commissioners as a way of enabling approval of a proposed development with which the Commissioner has concerns by identifying to the applicant how the development could be modified in order to make it acceptable, requiring the applicant to so modify the development, and approving the modified development: see Ali v Liverpool City Council [2009] NSWLEC 1327 at [120] and Riordans Consulting Surveyors Pty Ltd v Lismore City Council [2010] NSWLEC 1333 at [28]-[30].
Ms Saffioti submitted that the Commissioner, by not adopting the amber light approach, denied her the opportunity to modify the proposed development to address the Commissioner's concerns and to make it acceptable.
Ms Saffioti submitted that she also had a legitimate expectation that, if the Commissioner had concerns that the proposed development did not meet certain controls in KDCP, she would be given the opportunity to provide alternative solutions to achieve the objects of the controls in KDCP with which the Commissioner had concerns. Although Ms Saffioti did not expressly request the Commissioner for the opportunity to provide such alternative solutions, she did request to be provided with an amber light. She submitted that this request for an amber light was general enough to encompass being given the opportunity to provide alternative solutions.
The Commissioner found that the proposed development did not meet five controls in KDCP and "reasonable alternative solutions are not available that would achieve the objects of the control" (at [161(6)] of the judgment). The Commissioner also found that it was not possible for the proposed development to achieve the objects of the controls without removal of the uncertainty and inconsistency concerning the location of the new dwelling and its impact on biodiversity, native vegetation and endangered ecological communities (at [142(1)(a) and (3)] and [144(1)(a) and (2)] of the judgment).
Ms Saffioti submitted that she was not given by the Commissioner the opportunity to provide "reasonable alternative solutions… that would achieve the objects of the controls" or to provide further evidence to address the uncertainty and inconsistency in the evidence before the Commissioner made these findings and determined to refuse her development application. Ms Saffioti submitted that: "(a) in the context of an acknowledgement by the applicant of deficiencies in the material; (b) coupled with the application to the Commissioner for the amber light approach to be adopted; (c) the acknowledgement, inferentially, by the Commissioner of there having been a prospect of a reasonable alternative solution open; (d) coupled with the five matters found by the Commissioner in favour of refusal which, in the applicant's submission, could have all been met with appropriate additional material, (e) the absence of reasons, or determination upon the applicant's request for an amber light approach, (f) failure by the Commissioner to put to the applicant the complaint (as found in his judgment) of no reasonable alternatives being brought forward, that in those circumstances procedural fairness would require an opportunity to be given to the applicant to present that additional material."
The Council submitted that the Commissioner did not deny Ms Saffioti procedural fairness. In relation to the argument that the Commissioner did not provide an amber light, the Council submitted that there was no legal obligation on a Commissioner determining on appeal a development application to offer an amber light. As Pain J held in Riverstone Parade Pty Ltd v Blacktown City Council [2015] NSWLEC 137 at [38]: "A commissioner not giving an 'amber light' to a development application before him or her does not give rise to a question of law. Whether such an approach is adopted is a matter of merit which must be weighed up by a commissioner in the exercise of his or her function as a consent authority under the Court Act."
The Council submitted that there can be no legitimate expectation that a Commissioner would provide an amber light. As Sheahan J held in Luxe Manly Pty Ltd v Northern Beaches Council [2016] NSWLEC 156 at [95]: "there can be no expectation gleaned from the Court's occasional discretionary decisions to adopt the 'amber light' approach. It is not a component of standard procedure, to be consistently followed, and remains a matter of flexibility and discretion, to be employed in appropriate cases."
Indeed, the Council submitted that the recent decision of the Court of Appeal in Ku-ring-gai Council v Bunnings Properties Pty Ltd [2019] NSWCA 28 at [8], [20], [200]-[209] questions the statutory basis of the amber light approach and its validity as a procedure to be adopted by the Court. There can be no legitimate expectation that a Commissioner will adopt an approach of questionable legality.
The Council submitted that the Commissioner had no obligation to allow Ms Saffioti an opportunity to fix the uncertainty and inconsistency in her evidence before the Court. Ms Saffioti bore the responsibility of satisfying the Commissioner of the matters in cl 6.4(4) of KLEP and that the development met the relevant controls, including C7, C10, C25, C46 and C48 of KDCP. As the party asserting the factual basis for these issues, Ms Saffioti bore the responsibility for adducing the necessary evidence to meet the issues. Ms Saffioti's failure to adduce sufficient evidence, that was not uncertain or inconsistent, to establish these issues lay at her own feet. The Commissioner was not obliged, by consideration of procedural fairness, to identify and provide an opportunity to Ms Saffioti to adduce further evidence to address the uncertainty and inconsistency in the evidence adduced by her at the hearing: Forgall Pty Ltd v Greater Taree City (2015) 209 LGERA 160; [2015] NSWLEC 61 at [78], [86], [87] and Riverstone Parade Pty Ltd v Blacktown City Council at [37].
The Council submitted that the Commissioner also was not obliged to provide Ms Saffioti with the opportunity to provide reasonable alternative solutions that achieve the objects of the controls in KDCP. The reference to "reasonable alternative solutions" arises in s 4.15(3A) of the EPA Act which provides: "If a development control plan contains provisions that relate to the development that is the subject of a development application, the consent authority: (a) if those provisions set standards with respect to an aspect of the development and the development application complies with those standards - is not to require more onerous standards with respect to that aspect of the development, and (b) if those provisions set standards with respect to an aspect of the development and the development application does not comply with those standards - is to be flexible in applying those provisions and allow reasonable alternative solutions that achieve the objects of those standards for dealing with that aspect of the development, and (c) may consider those provisions only in connection with the assessment of that development application."
The controls in KDCP may be accepted to "set standards with respect to an aspect of the development". The Commissioner found that the proposed development did not comply with five controls in KDCP, being C7, C10, C25, C46 and C48. In that event, the Commissioner was required "to be flexible in applying the proposed provisions and allow reasonable alternative solutions that achieve the objects of those standards for dealing with that aspect of the development" (s 4.15(3A)(b) of the EPA Act).
The Council submitted that in order to engage s 4.15(3A), there must be a concession on the part of the applicant that the proposed development does not comply with a DCP standard and the applicant must put forward a reasonable alternative solution that achieves the object of the standard.
Here, the Council submitted, Ms Saffioti did not concede that the proposed development did not comply with any standard in KDCP and therefore no occasion for consideration of a reasonable alternative solution arose. Even if Ms Saffioti had conceded non-compliance with a standard in KDCP and sought flexible application of that standard, the Commissioner assessed the development proposal as submitted, and found it to be lacking in merit. That is to say, the "alternative solution" is only ever embodied in the proposed development as submitted. The Commissioner found that, as submitted, the proposed development was deficient.
The Council submitted that this is the context in which the Commissioner found in [161(6)] of the judgment that "reasonable alternative solutions are not available that would achieve the objects of the control". The Commissioner was not saying that no reasonable alternative solution could ever be found to achieve the objects of the controls in KDCP, but rather that the proposed development, if it could be an alternative solution for the purposes of s 4.15(3A), was deficient and did not achieve the objects of the controls.
I find that the Commissioner did not deny Ms Saffioti procedural fairness in the ways claimed by Ms Saffioti. I agree with and adopt the Council's submissions.
First, the Commissioner was not obliged, by considerations of procedural fairness, to offer an amber light to Ms Saffioti. As held recently in Ku-ring-gai Council v Bunnings Properties Pty Ltd, the amber light approach has no statutory basis in the EPA Act, the Court Act or any court rules. The fact that certain Commissioners of the Court might have labelled, described and applied the amber light approach in hearing and disposing of some appeals over which they presided does not give the approach any statutory or formal basis or give rise to any legitimate expectation that other Commissioners will adopt the amber light approach when hearing and disposing of appeals over which they preside. There can be no legitimate expectation that an approach with no statutory basis and of questionable legality will be adopted.
Secondly, the Commissioner was not obliged, by considerations of procedural fairness, to give notice to Ms Saffioti that the evidence she had adduced was uncertain and inconsistent, and accordingly insufficient to establish the matters she was required to establish under cl 6.4(4) of KLEP and that the proposed development complied with all relevant controls in KDCP, or to give Ms Saffioti an opportunity to adduce further evidence in order to overcome the deficiencies in the evidence she had already adduced in her case: see Warkworth Mining Ltd v Bulga Milbrodale Progress Association Inc (2014) 86 NSWLR 527; [2014] NSWCA 105 at [111], [143]; Forgall Pty Ltd v Greater Taree City at [78], [86], [87]; Riverstone Parade Pty Ltd v Blacktown City Council at [37].
Thirdly, the Commissioner was not obliged, by considerations of procedural fairness, to give Ms Saffioti an opportunity to provide reasonable alternative solutions that achieve the objects of the controls that the Commissioner found had not been met. The "reasonable alternative solutions" referred to in s 4.15(3A)(b) of the EPA Act are alternative solutions embodied in the development that is the subject of the development application. The development might not comply with certain of the standards set by the provisions of a development control plan with respect to aspects of the development but nevertheless the development might provide an alternative solution that does achieve the objects of those standards. If so, the consent authority is directed by cl 4.15(3A) "to be flexible in applying those provisions and allow reasonable alternative solutions that achieve the objects of those standards for dealing with that aspect of the development".
The onus is on the applicant for development consent to proffer, in the development application for the development, the alternative solutions that achieve the objects of the standards for dealing with the relevant aspects of the development. The consent authority can then evaluate whether the proffered alternative solutions are "reasonable alternative solutions" that do "achieve the objects of those standards for dealing with that aspect of the development".
Here, the alternative solution proffered by Ms Saffioti was embodied in the development the subject of the development application. Ms Saffioti had asserted that the development did comply with the relevant controls in KDCP but insofar as the development did not comply with any control in KDCP, it was the alternative solution that Ms Saffioti asserted achieved the objects of the control. The Commissioner found that the proposed development did not comply with five controls in KDCP and that, because of the uncertainty and inconsistency in the evidence adduced by Ms Saffioti, it was not possible that the proposed development (insofar as it could be seen to be an alternative solution) could achieve the objects of the controls. Ms Saffioti had not proposed any other alternative solution than the proposed development.
The Commissioner thereby did consider, as required by s 4.15(3A) of the EPA Act, the only alternative solution provided by Ms Saffioti, being the proposed development, but found that it did not achieve the objects of the controls with which the development did not comply.
Section 4.15(3A) of the EPA Act itself did not oblige the Commissioner to give notice to Ms Saffioti that he might so find, or to give Ms Saffioti an opportunity after so finding to provide a further alternative solution that might achieve the objects of the controls with which the development did not comply. The general request of Ms Saffioti at the hearing that the Commissioner should provide an amber light did not give rise to an obligation, which s 4.15(3A) did not impose, to invite Ms Saffioti to provide a further alternative solution.
For these reasons, I reject Ms Saffioti's grounds of appeal claiming that the Commissioner denied Ms Saffioti procedural fairness.

The alleged misdirection concerning derogation

The Commissioner found that cl 6.4(4) of KLEP did not derogate or have the effect of derogating from the incorporated provisions in Part 5 of the EPA Act (at [96(1)] and [160(2)] of the judgment. The Commissioner therefore applied cl 6.4(4) and found that he was not satisfied of the matters in cl 6.4(4).
Ms Saffioti submitted that the Commissioner erred on a question of law in so finding by misunderstanding and misapplying the correct meaning of the word "derogate" in s 4.67(3) of the EPA Act.
Subsection 4.67(3) provides: "An environmental planning instrument may, in accordance with this Act, contain provisions extending, expanding or supplementing the incorporated provisions, but any provisions (other than incorporated provisions) in such an instrument that, but for this subsection, would derogate or have the effect of derogating from the incorporated provisions have no force or effect while the incorporated provisions remain in force."
The reference to the "incorporated provisions" is a reference to the provisions of any regulations in force for the purposes of s 4.67(1). These are the provisions of Part 5 of the EPA Regulation. By s 4.67(2), the incorporated provisions are taken to be incorporated in every environmental planning instrument, which includes KLEP.
The question in this case was whether cl 6.4(4) of KLEP "would derogate or have the effect of derogating from the incorporated provisions". If so, cl 6.4(4) "would have no force or effect".
Ms Saffioti submitted that the word "derogate" in s 4.67(3) of the EPA Act bears its ordinary meaning, which Lloyd J in Fabcot Pty Ltd v Hawkesbury City Council (1997) 93 LGERA 373 at 378 held to be: "'to repeal or abrogate in part; to destroy or impair the force or effect of; to lessen the extent of; to detract from; to disparage; to depreciate' (The Shorter Oxford Dictionary). In The Macquarie Dictionary the word is defined in the sense of 'to detract'".
Ms Saffioti submitted that, in this case, the enquiry to be made is whether or not cl 6.4(4) of KLEP "detracts from the rights otherwise enjoyed and protected for (and by) an existing use right (s 4.66, previously s 107) and, relevantly here, entitlement to enlarge, expand or intensify that use" (in cl 42 of the EPA Regulation). Ms Saffioti submitted that "any requirement which deleteriously impinges upon that entitlement derogates from it". Ms Saffioti submitted that "if the provisions of an EPI derogate from a facultative provision in the Regulations as to the enjoyment or enlargement of an existing use right, then that provision has no work to do and is to be set aside and ignored".
Ms Saffioti submitted that cl 6.4(4) of KLEP does derogate from the facultative provision of cl 42 of the EPA Regulation which allows, with development consent, the enlargement, expansion and intensification of an existing use. Clause 6.4(4) of KLEP derogates or has the effect of derogating from cl 42 of the EPA Regulation because it provides that development consent must not be granted to development on land unless the consent authority is satisfied of the matters in cl 6.4(4)(a)-(c). Clause 6.4(4) provides: "Development consent must not be granted to development on land to which this clause applies unless the consent authority is satisfied that: (a) the development is designed, sited and will be managed to avoid any significant adverse environmental impact, or (b) if that impact cannot be reasonably avoided the development is designed, sited and will be managed to minimise that impact, or (c) if that impact cannot be minimised - the development will be managed to mitigate that impact."
If the consent authority were not to be satisfied of the matters in cl 6.4(4), then development consent could not be granted to a development involving the enlargement, expansion or intensification of an existing use, which would derogate from cl 42 of the EPA Regulation which permits development consent to be granted for the enlargement, expansion or intensification of an existing use.
Ms Saffioti submitted that the Commissioner did not approach the question of whether cl 6.4(4) of KLEP derogated from cl 42 of the EPA Regulation in this way. Rather, he accepted the Council's submission of the meaning of "derogate" as involving a "prohibition on making of a development application": see [60]-[66], [95(5)], [96(1)] of the judgment. This error infected his approach to assessing what does and does not derogate from the entitlement to enlarge, expand or intensify an existing use. The Commissioner concluded that because cl 6.4(4) of KLEP did not prevent the making of a development application to enlarge, expand or intensify the existing use, it did not derogate from cl 42 of the EPA Regulation. This was too narrow an approach. The Commissioner thereby misdirected himself as to the meaning of the word "derogate" and applied the wrong test.
The Council disputed that the Commissioner misdirected himself or applied the wrong test. The Council submitted that cl 6.4(4) of KLEP does not derogate or have the effect of derogating from the incorporated provisions of Part 5 of the EPA Regulation. The relevant incorporated provisions were cl 41(1)(a) and cl 42 of the EPA Regulation.
As already noted, KLEP prohibited the erection and use of a dwelling on land in the E2 Environmental Conservation Zone. By s 4.3 of the EPA Act, a person must not carry out development that is prohibited. However, by s 4.66(1) of the EPA Act, nothing in the EPA Act or KLEP prevents the continuance of an existing use. The use of Ms Saffioti's land for a dwelling had been held to be an existing use. Hence, Ms Saffioti could continue to use her land for a dwelling.
By s 4.67(1)(c) of the EPA Act, regulations may be made for, amongst other things, the enlargement, expansion or intensification of an existing use. Clause 41(1)(a) of the EPA Regulation allows an existing use to be enlarged, expanded or intensified, subject to the other provisions of Part 5 of the EPA Regulation. One of those other provisions is cl 42. Clause 42(1) provides that development consent is required for any enlargement, expansion or intensification of an existing use.
The effect of these incorporated provisions was that Ms Saffioti was permitted, with development consent, to enlarge, expand or intensify the existing use of her land for a dwelling. The Court had earlier held that this included erecting and using a new building as a dwelling and decommissioning the existing dwelling and using it as an art studio.
The Council submitted that, in order for cl 6.4(4) of KLEP to derogate from these incorporated provisions, it must "re-impose or re-introduce a prohibition (or what might effectively amount to a prohibition)". One such prohibition would be on making a development application for consent to carry out prohibited development. By ss 4.3, 4.9 and 4.12 of the EPA Act, a person cannot apply to a consent authority for consent to carry out prohibited development. However, by s 4.65, 4.66 and 4.67 of the EPA Act and cll 41 and 42 of the EPA Regulation, a person is permitted to make a development application to enlarge, expand or intensify a prohibited development that is an existing use. The Council submitted that cl 6.4(4) of KLEP does not re-impose or re-introduce a prohibition on making a development application to enlarge, expand or intensify a prohibited development that is an existing use.
The Council cited oOh! Media Assets Pty Ltd v The Council of the City of Sydney [2016] NSWLEC 47 at [158], where Sheahan J held that the Commissioner whose decision was the subject of the appeal under s 56A of the Court Act, was "correct in his approach". That Commissioner had found (at [31] of his judgment quoted in [60] of Sheahan J's judgment) that: "It follows that any derogation must relate to the existing use and not the making of a development application. If a development application can be made there is no derogation when the controls that apply to that development application pursuant to s 79C assessment are applied."
Sheahan J also endorsed as correct the Commissioner's finding in [35] of his judgment that an assessment of a development application to change an existing use in some way (under cll 42 - 45 of the EPA Regulation) involves assessment of the matters under the former s 79C (now s 4.15) of the EPA Act.
The Commissioner in the present case adopted the approach to assessment identified by the Commissioner and endorsed by Sheahan J in oOh! Media Assets Pty Ltd v The Council of the City of Sydney: see at [65], [76]-[78], [95(5)(e)] of the judgment.
The Council submitted that cl 6.4(4) of KLEP does not have any prohibitory effect and would not operate to prevent a development application being made to erect and use a new dwelling on the land (and to decommission the existing dwelling).
The Council submitted that all that cl 6.4(4) of KLEP does is to impose an obligation to have regard to stringent planning controls as part of the merits assessment of the development application (that cll 41 and 42 of the EPA Regulation enabled to be made). Those controls do not derogate from an ability to enlarge, expand or intensify the existing use with development consent. The Council submitted that cl 6.4(4) provides three pathways to granting consent to development on land to which cl 6.4 applies, by requiring the consent authority to consider and be satisfied of the matters in paragraphs (a), (b) or (c) of cl 6.4(4) before granting consent to the development. The Commissioner so understood cl 6.4(4): see, for example, [95(5) and (6)] of the judgment.
The Council submitted that this approach to assessment of a development application to change an existing use in some way permitted by the incorporated provisions was applied in Iris Diversified Property Pty Ltd v Randwick City Council (2010) 173 LGERA 240; [2010] NSWLEC 58 at [50]: "Adopting the meaning of derogate applied in Carden and Fabcot and applying an ordinary meaning to the words in cl 41(1)(d), I do not consider that the application of development standards in the LEP to the assessment of a conforming use as defined under the land use table is a derogation to which s 108(3) refers. Such an approach will not detract from, destroy or impair the operation of cl 41(1)(d). Section 108(3) contemplates that other provisions of the LEP will expand on the incorporated provisions. The assessment of the otherwise conforming use in accordance with the relevant development standards in the LEP does not derogate from the incorporated provision which is cl 41(1)(d)."
That decision was accepted as correct in Cracknell & Lonergan Architects Pty Ltd v Leichhardt Municipal Council (2012) 193 LGERA 151; [2012] NSWLEC 194 at [83] and [84]: "Mr Tomasetti submits that her Honour's decision was wrong. For the reasons that I have indicated, I do not accept that submission and respectfully concur in the conclusion that her Honour reached. Further, I do not accept that such conclusion gives no work for cl 41(1)(d) to do. Section 107(1) authorises the continuance of an existing use and nothing more. Section 108(1)(b) authorises the making of regulations "with respect to ... the change of an existing use to another use". Clause 41(1)(d) gives effect to that power by restricting its exercise in the manner earlier described. It is declaratory of the circumstances in which a change of use can be made. It is hardly surprising that it should do so, given the long history of regulation that allowed a change from one use to another use, unconstrained by uses otherwise prohibited on land proposed to be developed. By imposing development standards, the planning instrument does no more than stipulate the manner in which a use "may be carried out with or without development consent under the Act". So understood, the provisions of cl 19 of LEP 2000 do not "destroy or impair the force or effect of ... or lessen the extent of ... or detract from" the provisions of cl 41(1)(d) (Fabcot Pty Ltd v Hawkesbury City Council at 378)."
The Council submitted that the fact that, if the consent authority was not satisfied of at least one of the matters in cl 6.4(4)(a) - (c) of KLEP, development consent could not be granted to Ms Saffioti's development application to enlarge, expand or intensify the existing use of the land for a dwelling does not mean that cl 6.4(4) derogates or has the effect of derogating from the incorporated provisions. That was true in Iris Diversified Property Pty Ltd v Randwick City Council and Cracknell & Lonergan Architects Pty Ltd v Leichhardt Municipal Council where the Court held in each case that various development standards (such as FSR, height and landscaping development standards) did not derogate from the incorporated provisions, notwithstanding that non-compliance with the development standards, if the relevant objections under the then applicable State Environmental Planning Policy No 1 - Development Standards were not to be upheld, would result in development consent not being granted to the development application.
I find that the Commissioner did not err in holding that cl 6.4(4) of KLEP did not derogate from the incorporated provisions.
The Commissioner's holding is encapsulated in [95(5)] of the judgment: "Clause 6.4 of KLEP sets out objectives and provisions with respect to terrestrial biodiversity (see above at [36(4)]. The clause applies to land identified as 'biodiversity land' on the Terrestrial Biodiversity Map in KLEP. The area within the Subject Site on which the proposed development would be located, and which is zoned E2, is 'biodiversity land'. My considerations and conclusions in relation to the standards within this clause are as follows: (a) Under the provisions of this clause, the consent authority is required under cl 6.4(3) to consider whether a development is likely to have impacts as described in subcll (a), (b) and (d) or will have the impacts described in subcl (c). (b) In my assessment there is nothing in the objectives of cl 6.4, nor under the requirements of cl 6.4(3), that would derogate from the existing use rights of the Applicant as none of these provisions serves to prohibit the Applicant's proposed development. (c) Under the provisions of, cl 6.4(4), a consent authority must not grant consent to a development unless it is satisfied that the proposed development satisfies the provisions of one of either subcll (a), or (b) or (c) to avoid, minimise or mitigate any significant adverse impacts arising from the proposed development in respect of terrestrial biodiversity. (d) In my assessment, nothing in these subclauses serves to prohibit the proposed development. Rather, these subclauses require that a proposed development comply with their provisions, and they offer three pathways to compliance, through avoidance, minimisation or mitigation of adverse environmental impacts on terrestrial biodiversity. As none of these provisions serve to prohibit the proposed development, I conclude that they do not derogate from the Applicant's existing use rights. (e) Notwithstanding my finding above at [b] or [d], and consistent with approach to assessment identified by Brown ASC at [76] in the second oOh! Media case, I conclude that the provisions of cl 6.4 of KLEP do provide a basis for the assessment of the application as required under the provisions of s 4.15C(1) of the EP&A Act. (f) In summary, I conclude, that nothing within the clause objectives, nor provisions requiring development consent in relation terrestrial biodiversity, derogates from the Applicant's existing use rights."
This holding concerning cl 6.4(4) of KLEP built upon the Commissioner's general findings as to the approach to be adopted in applying s 4.67(3) of the EPA Act to determine whether provisions of KLEP derogated from the incorporated provisions: "76. In his decision in the first oOh! Media case, Sheahan J provided an extensive review of the relevant case law concerning existing use rights and the so-called correct approach that should be taken with respect to applying the provisions of s 4.67(3) of the EP&A Act, and the basis for a subsequent assessment under s 4.15C of the EPA Act of an application relying on existing use rights. 77 In this regard, His Honour endorsed the conclusions of Brown ASC [in] the second oOh! Media case, that, in relation to the new sign structure proposed in his matter: I accept that the existing use rights are limited to the use of the structure, that is for displaying signage rather than the structure itself. This has a significant impact on the assessment of the impacts of the proposed sign. In accepting that the signage, rather than the sign structure, has existing use rights, the general approach of the council experts that any s79C assessment must be made on the sign is a new structure and subject to the currently applying controls is the correct approach… 78 Having considered the submissions of Parties, I concur with the submission of the Respondent that the findings of Sheahan J do bind me, and, based on this, the Court, having accepted that the Applicant's proposal for the construction of a new dwelling is entitled to existing use rights, must undertake an assessment of the proposed development in line with the requirements of s 4.15C of the EP&A Act as described at [66]. … 89 In conclusion, and having considered the submissions of the Parties, including their submissions in respect of various judgments of this Court, I favour the approach of Brown ASC, endorsed within the findings of Sheahan J, in the two oOh! Media cases, as the basis for applying of s 4.67(3) of the EP&A Act, and for the reasons provided above at [78]. That is that the preferred approach to my assessment of the proposed development in this appeal, in terms of the provisions of s 4.15C(1) of the EP&A Act, should be subject to the currently applying controls in KLEP. This is in the context of my conclusion at [85(2)], that any provisions of KLEP which derogate from the incorporated provisions in the Regulations have no force or effect. … 96 Based on the above, I conclude that: (1) None of the provisions of the clauses of KLEP that are relevant to the Applicant's proposed development in this appeal derogate from her existing use rights; (2) The provisions of clauses 6.4 and 6.5 of KLEP provide a basis for assessment of the application under the provisions of s 4.15C(1)(a) of the EP&A Act, consistent with approach to assessment identified by Brown ASC at [76] in the second oOh! Media case."
Contrary to Ms Saffioti's submissions, I do not read the Commissioner as having adopted what she said the Council had submitted in the Court below that the test for whether a provision of a local environmental plan derogates is whether the provision prevented the making of a development application. The Commissioner did record the Council as having made that submission (see, for example, [60] of the judgment) but that was not the approach the Commissioner said he adopted, either generally in relation to the meaning of "derogate" or specifically in relation to cl 6.4(4) of KLEP, in the paragraphs of the judgment quoted above.
Generally, the Commissioner adopted and applied the approach of the Commissioner and Sheahan J in oOh! Media Assets Pty Ltd v The Council of the City of Sydney that "any derogation must relate to the existing use and not the making of a development application" and that there needs to be an assessment of the proposed development, to change the existing use in some way permitted by the incorporated provisions, in line with the requirements of s 4.15 of the EPA Act. The Commissioner found that "the Court, having accepted that the Applicant's proposal for the construction of a new dwelling is entitled to existing use rights, must undertake an assessment of the proposed development in line with the requirements of s 4.15 of the EPA Act", including the controls in cl 6.4(4) of KLEP (see [66], [78] and [89] of the judgment).
Specifically, the Commissioner found that cl 6.4(4) of KLEP did not derogate from Ms Saffioti's existing use rights because nothing in the subclauses of cl 6.4(4) served to prohibit Ms Saffioti's proposed development to enlarge, expand or intensify the existing use of the land for a dwelling. Rather, the Commissioner found, "these subclauses require that a proposed development comply with their provisions, and they offer three pathways to compliance, through avoidance, minimisation or mitigation of adverse environmental impacts on terrestrial biodiversity" ([95(5)(d)], [96(1)] and [160(2)] of the judgment). As the provisions of cl 6.4 of KLEP do not derogate, the Commissioner found that the provisions do provide a basis for assessment of Ms Saffioti's development application as required under s 4.15 of the EPA Act, consistent with the approach to assessment adopted by the Commissioner and Sheahan J in oOh! Media Assets Pty Ltd v The Council of the City of Sydney: see [95(5)(e)], [96(2)] and [160(4)] of the judgment.
It is true that the Commissioner did refer to the provisions of cl 6.4(4) of KLEP as not derogating from the "existing use rights" of Ms Saffioti, thereby making the object of the derogation the existing use rights rather than the incorporated provisions as s 4.67(3) of the EPA Act requires. But I do not consider this led to the Commissioner asking the wrong question or applying the wrong test. First, the Commissioner's reference to "existing use rights" of Ms Saffioti included reference to the right of Ms Saffioti to apply for development consent to change the existing use of her land for a dwelling in one of the ways permitted by the incorporated provisions, namely to enlarge, expand or intensify the existing use. Secondly, the Commissioner also found that none of the provisions of cl 6.4 prohibited Ms Saffioti's "proposed development", which was to enlarge, expand or intensify the existing use of the land for a dwelling. This proposed development was permitted by the incorporated provisions (cll 41(1)(a) and 42 of the EPA Regulation). Thirdly, the Commissioner's actual focus was on whether the provisions of cl 6.4(4) served to prohibit the proposed development of enlarging, expanding or intensifying the existing use of the land, which was the correct enquiry.
I therefore find that Ms Saffioti has not established that the Commissioner misconstrued or misapplied the correct meaning of "derogate" in s 4.67(3) of the EPA Act.
Furthermore, I find that Ms Saffioti has not established that the Commissioner came to the wrong conclusion by finding that cl 6.4(4) of KLEP did not derogate from the incorporated provisions. Clause 6.4(4) of KLEP does establish factual preconditions about which the consent authority must be satisfied in order to enliven the power to grant consent to development on land to which cl 6.4 applies. However, there is nothing about these factual preconditions that operate to prevent a consent authority from being satisfied that they are met in the individual circumstances of any development. The "development" to which cl 6.4(4) refers is the development the subject of the development application. In the case of a development application to change an existing use in some way permitted by the incorporated provisions, the development will be this development to change the existing use. There is nothing inherent in development involving a change in an existing use that would preclude such development being designed, sited or managed to avoid any significant adverse environmental impact, or to minimise that impact, or to mitigate that impact. Hence, a provision requiring a consent authority to be satisfied, before being able to grant consent to such development, that the development is designed, sited or managed to avoid, minimise or mitigate any significant adverse environmental impact does not derogate from the incorporated provisions that permit a development application for such development to be made.
As the Council submitted, the decisions in Iris Diversified Property Pty Ltd v Randwick City Council and Cracknell & Lonergan Architects Pty Ltd v Leichhardt Municipal Council, which found that provisions of a local environmental plan fixing development standards for development do not derogate from the incorporated provisions, are consistent with this conclusion that cl 6.4(4) of KLEP does not derogate from the incorporated provisions.
I reject Ms Saffioti's submission that the test for derogation is whether the provisions of an environmental planning instrument, in this case cl 6.4(4) of KLEP, detract from or deleteriously impinge upon "the rights otherwise enjoyed and protected for (and by) an existing use right…and relevantly here, entitlement to enlarge, expand or intensify that use".
Care needs to be taken when referring to "an existing use right". The primary right is the right in s 4.66 of the EPA Act to continue an existing use or in s 4.68 to continue another use for a lawful purpose. However, these rights, by themselves do not authorise any change in the existing use or other lawful use: see 4.66(2) and s 4.68(2) of the EPA Act.
Any entitlement to change an existing use comes from Part 5 of the EPA Regulation made under s 4.67 of the EPA Act. Clause 41 does provide that an existing use may be changed in one or more of the ways specified in cl 41(1) and cll 42 - 45 of the Regulation, but "subject to" the provisions of Part 5. Each of the provisions of cll 42 - 45 of the EPA Regulation require development consent for the particular change in the existing use specified in the clause. Of relevance here, cl 42 requires development consent for any enlargement, expansion or intensification of an existing use.
Accordingly, there is no entitlement to change an existing use in one or more of the ways permitted by the incorporated provisions, only to make a development application seeking consent to change an existing use in one or more of the ways permitted by the incorporated provisions and have a consent authority consider and determine that development application. The test, therefore, is not whether cl 6.4(4) of KLEP detracts from or deleteriously impinges upon any entitlement to enlarge, expand or intensify the existing use, but rather the entitlement to make, and have the consent authority consider and determine, a development application seeking consent to enlarge, expand or intensify the existing use.
For the reasons I have given, cl 6.4(4) of KLEP does not derogate from this entitlement to make, and have the consent authority consider and determine, a development application to enlarge, expand or intensify the existing use. For these reasons, I reject Ms Saffioti's grounds of appeal claiming that the Commissioner erred on a question of law in holding that cl 6.4(4) of KLEP did not derogate from the incorporated provisions.

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Judgment (7 paragraphs)

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