CONSIDERATION
87The EPA Act provides for the following three ways in which a development the subject of a development application may be changed before or at the time of consent:
(a)The first way is by an amendment to the development application. The applicant may amend with the agreement of the consent authority or, on appeal, with the leave of the Court: cl 55 EPA Regulation; Radray Constructions Pty Ltd v Hornsby Shire Council [2006] NSWLEC 155, 145 LGERA 292 at [3] per Jagot J. Section 97B of the EPA Act recognises that the Court has a discretion whether or not to allow the filing of an amended development application because if the Court does so, then (unless it is a minor amendment) it is mandatory for the Court to order the applicant to pay the consent authority's resultant costs thrown away.
(b)The second way is by granting development consent subject to a condition (s 80(1)(a) EPA Act) that changes the proposed development, provided the condition does not offend the Mison principles as explained in Kindimindi Investments Pty Ltd v Lane Cove Council [2006] NSWCA 23, 143 LGERA 277: see below at [101] - [103]. In Kindimindi at [44] the Court of Appeal left open whether satisfaction of one of the paragraphs of s 80A(1) of the EPA Act is a necessary element of a valid condition. One of those paragraphs is if the condition modifies details of the development the subject of the development application: s 80A(1)(g). Another is if the condition relates to any matter referred to in s 79C(1) of relevance to the development: s 80A(1)(a). The latter is broader because s 79C(1) refers, for example, to provisions of environmental planning instruments and development control plans, the likely impacts of the development, any submissions made in accordance with the EPA Act or Regulation, and the public interest (above at [25]). On an appeal the consent authority usually proposes a large number of conditions to the Court. In the present case, the applicants for consent (the Dives) also proposed some conditions.
(c)The third way is by granting partial consent. Development consent may be granted for the development for which consent is sought except for a specified part or aspect of the development, or only for a specified part or aspect of the development: s 80(4) EPA Act (above at [24]). For example, on an appeal against refusal of a development application for a marina at Rose Bay, the Court granted development consent except for one arm of the marina and certain berths: Addenbrooke Pty Ltd v Woollahra Municipal Council (No 2) [2009] NSWLEC 134 per Biscoe J.
88The first of these three ways is dependent upon action by the applicant for consent, in that the applicant applies for and obtains the agreement of the consent authority to amend the development application or, on an appeal, applies for and obtains the leave of the Court to amend. The second and third ways are dependent upon action by the consent authority or, on appeal, the Court, whatever the applicant's wishes. The current statutory regime for the first two ways of changing a proposed development (ie amendments or conditions) was in place when Mison was decided. The statutory regime for the third way (ie partial consent) was introduced subsequently. The third way appears to make a hole in the Mison principle.
89The contentious conditions proposed at the hearing and later adopted by the Commissioner are set out above at [7]. They changed some details of the proposed development, as summarised above at [9]. At the hearing Mr V'landys was shown the contentious conditions and the February plans, had them explained to him by the Council's solicitor advocate, and was called by the Council to give evidence in which he expressed his concerns and said that the conditions did not really address them: above at [71] - [76].
90The parties' submissions concerning the DCP ground and the Mison ground, on which Mr V'landys relies, are set out above at [11] - [13].
91It is convenient to repeat cl 10.1 of the DCP: "Proposals for significant amendments to development applications will be notified to any person notified of the original application". Under the DCP ground, Mr V'landys contends that the hearing should have been adjourned to give him a cl 10.1 notice of the contentious conditions by letter in accordance with cl 5.4, containing the information prescribed by cl 8.1, and giving him 14 days to make submissions as required by cl 13.1 unless a council officer varied that period under cl 13.1: above at [35].
92It is also convenient to repeat the principle in Mison at 737 per Priestley JA (Meagher JA agreeing):
In my opinion if a condition imposed upon a purported consent to a particular development application has the effect of significantly altering the development in respect of which the application is made, then the purported consent is not a consent to the application...
...Further however, if the effect of an imposed condition is to leave open the possibility that development carried out in accordance with the consent and the condition will be significantly different from the development for which the application was made, then again, it seems to me that the Council has not granted consent to the application made.
The introduction of the word "significantly" into the test imports into the decision-making process of the consent authority a judgmental factor incapable of precise statement.
93Under the DCP ground, there is a factual question whether the contentious conditions were "significant amendments" to the development application within the meaning of cl 10.1. Under the alternative Mison ground, there is a factual question whether those conditions had "the effect of significantly altering the development in respect of which the application is made". There is a marked similarity between the expressions "significant amendments" and "significantly altering". However, the context is different in that cl 10.1 is concerned with an amendment to a development application whereas the Mison principle is concerned with the effect of a condition on a development.
94In my view, both questions of fact should be answered in the negative for the following reasons.
95"Significant" has been defined as "important; of consequence": Macquarie Dictionary, 3rd ed (1998) at 1974.
96Mr V'landys relies for an affirmative answer to the questions of fact referred to above on the Commissioner's reasons for judgment and the evidence before me of his architect, Mr Dunkerley.
97As regards the Commissioner's reasons for judgment, Mr V'landys submits they indicate that the changes introduced by the conditions would reduce the adverse impacts of the roof design such that the development would be acceptable when otherwise it would not be acceptable. He submits that absent the changes, the development would not have been approved, and therefore they were significant. He refers to the judgment at [12] (last sentence), [15] (last sentence), [16], [20], [22] and [31]. I do not accept that the last sentence of [12] is part of the Commissioner's findings; it is a record of the opinion of Mr Minto, the Dives' town planner, that the views from Mr V'landys' property have been further improved with the amendments suggested by the Dives. The other paragraphs of the judgment on which Mr V'landys relies are set out above at [80] - [81]. The Commissioner described the changes brought about by the conditions as "minor", at [15] and [16]; acknowledged that views from Mr V'landys' home were enhanced with the amendments to the roof form, at [20]; and considered that, with the changes, the development would sit comfortably with other adjoining and nearby residential development, at [31]. It is apparent that the Commissioner regarded the proposed development as better with the changes. The Commissioner did not say that he would not have granted consent absent the changes. A condition which makes the difference between consent and no consent is not necessarily determinative of the issue of whether it significantly amended the development application or significantly altered the development (for example, the simple deletion of one window in a large development to prevent overlooking a neighbour might not suffice).
98As regards Mr Dunkerley's evidence, he showed the changes introduced by the February plans but focussed essentially on their effect on the views from Mr V'landys' home. In that respect, his opinion overall was that the conditions did not improve the impact upon Mr V'landys' views. More particularly, he appears to have thought that individual conditions either had no effect on those views or constituted minor improvements which were offset by minor compromises: above at [84] - [86].
99The changes brought about by the contentious conditions should be considered in light of the facts and decisions in Mison and Kindimindi, and in light of the explanation of Mison in Kindimindi.
100In Mison, the contentious condition of consent provided for the overall height of the subject dwelling house being "reduced to the satisfaction of Council's chief town planner". Obviously, the height of the house was of "critical importance" (at 740) yet the condition left the height for later determination without stating any criterion for determining the height. Priestley JA (Meagher JA agreeing) adopted at 737 the principle relied on in the present case. Clarke JA (Meagher JA also agreeing) adopted at 740 the harder to establish principle that if a condition leaves for later determination an important aspect of the development which could alter the development in a fundamental respect, the consent cannot finally determine the development application. A declaration was made that the purported consent was not a consent to the development application within the meaning of s 91(1)(a) of the EPA Act (now s 80(1)(a)).
101In Kindimindi, Basten JA (Handley JA and Hunt AJA agreeing) explained Mison as follows:
24. In accordance with principles explained by this Court in Mison v Randwick Municipal Council (1991) 23 NSWLR 734; 73 LGRA 349, there may be no lawful consent to a development application where the consent falls within one of two categories of overlapping circumstances. The first category is where a condition has the effect of "significantly altering the development in respect of which the application is made": at 737B; 351 (Priestley JA). The second category is where a council has purportedly granted consent, but in terms which lack either finality or certainty, so that there is, in substance, no effective consent to the application.
25. These two categories may overlap in circumstances where consent is granted subject to a condition which allows for significant variation of the development proposed.
...
28. Although different language is used in relation to the separate categories of invalidity, it would seem that the test of uncertainty or lack of finality, being determined by reference to an important aspect of the development, requires that what is left uncertain must be the possibility that the development as approved may be significantly different from the development the subject of the application. Thus, the result should not be different depending upon which approach is adopted: a consent will only fail for uncertainty where it leaves open the possibility of a significantly different development. On other hand, a consent may fail, within the first category, where a condition of great precision and certainty of operation results in a significantly different development. Whichever category is preferred in the case of a consent which lacks certainty or finality, it is helpful to bear in mind the relationship between the two tests.
...
54. According to the first category identified in Mison, the imposition of a condition which has the effect of significantly altering the development, will invalidate the consent because the development consented to is not that for which approval was sought. That test requires, of course, an evaluative judgment. Mison itself involved the construction of a single house. The principle it established would not necessarily operate in the same way in relation to a complex and extensive development with a number of severable elements. In the present case, accepting that a certain lack of precision in the two conditions 1(a) and (b) may make an evaluative judgment difficult, treating the development as a whole, neither the proposed change to the roof line of the residential component, nor the closing in of two sides of the carpark component, could be seen as significantly affecting the development. On the other hand, it would be possible, in some circumstances, to treat a change in the roofline of the residential part of the development as a significant alteration, if viewed in isolation as a separate part of the development. Whether that is the appropriate question to ask is an issue which can be put to one side, however, as no challenge was mounted on that basis.
55. A challenge based on the second category identified in Mison, which was relied upon, involves two elements which may need to be separated. Thus, a condition may be uncertain but final, in the sense that it does not foreshadow a further judgment, either by the consent authority, or by a delegate or a third party. However, as noted by Mason P in Transport Action Group Against Motorways Inc v Roads and Traffıc Authority (NSW) (1999) 46 NSWLR 598; 104 LGERA 133 at [112] mere uncertainty may not give rise to invalidity. Whether or not it does is likely to depend upon a different question, namely whether the condition complies with the statutory limits imposed upon the power of the authority. To the extent that the cases accept that a degree of "practical flexibility" (as in Scott v Wollongong City Council (1992) 75 LGRA 112 at 118 per Samuels AP) or imprecision (as in Genkem Pty Ltd v Environment Protection Authority (1994) 35 NSWLR 33; 85 LGERA 197, per Gleeson CJ) may not result in invalidity, the reason is that the relevant degree of flexibility or imprecision does not contravene any statutory limit on the power being exercised.
102His Honour acknowledged that the second category in Mison has been qualified by the introduction after Mison of s 80A(4) of the EPA Act which appears "to allow an initial level of uncertainty and lack of finality": at [57].
103In Kindimindi, a condition of a development consent provided that architectural plans for a shopping plaza would be altered to include modifications; namely, the housing roof form at its eastern end was to be split or set back to reduce its visibility from the plaza and open sections of a carpark were to be enclosed. It was held at [28] that a consent may fail where a condition results in "a significantly different development". That requires an evaluative judgment and, treating the development as a whole, neither the proposed change to the roofline of the residential component nor the closing in of two sides of the carpark component could be seen as significantly affecting the development: at [54].
104An evaluative judgment may involve a qualitative as well as a quantitative comparison between the proposed development without the changes and the proposed development with the changes: Moto Projects (No 2) Pty Ltd v North Sydney Council [1999] NSWLEC 280, 106 LGERA 298 at [25], [52], [56] per Bignold J (decided in the analogous context of a statutory power to modify a development consent if the consent authority is satisfied that the development to which the modified consent relates is "substantially the same" development).
105The changes in the present case pale in significance compared with the potential height change in Mison. The roofline change (the main change) is comparable with the roofline change in Kindimindi even allowing for the different residential contexts. Treating the development as a whole, my evaluation is that the changes brought about by the conditions do not significantly alter the development so as to result in a significantly different development. My impression is that the conditions only modify details of the development, which is permissible under s 80A(1)(g) of the EPA Act. An equivalent provision existed when Mison was decided (it was then s 91(3)(g)). Mison is not concerned with such modifications. I think that the conditions were also permissible under s 80A(1)(a) as relating to matters in s 79C(1)(a)(i), (b) and (d) (the provisions of an environmental planning instrument, likely impacts of the development, and submissions made by Mr V'landys).
106Similarly, if it is assumed that what happened constituted an amendment to the development application (contrary to my opinion), then the amendment was not significant such as to attract cl 10.1 of the DCP.
107Those findings of fact are sufficient to dispose of the proceedings in favour of the respondents.
108Although it is unnecessary to go further, in my opinion there are three further reasons why cl 10.1 of the DCP is not relevant or cannot be relied upon in this case.
109First, I consider that cl 10.1 of the DCP is irrelevant because it only addresses the first of the three ways of effecting change discussed above at [87]; that is, proposed amendments to the development application by the applicant for consent. In fact, leave to amend the development application was neither sought nor granted at the hearing. The Dives' solicitor said he was not seeking to amend and the Commissioner ruled that there was no amendment. Rather, the Dives proceeded, as did the Council, towards the second way of effecting changes by proposing conditions that the Commissioner later adopted.
110Secondly, if I am in error and what happened constituted an amendment to the development application, leaving aside my finding at [106] above, the second reason why I consider cl 10.1 is irrelevant in this case is that, contrary to Mr V'landys' submission, I do not think that the Court was bound to take it into consideration under s 79C(1)(a)(iii) of the EPA Act. On an appeal under s 97 of the EPA Act, in my opinion, the only obligation of the Court in relation to a development control plan is, "In determining" the development application, to take into consideration the development control plan as a focal point if it is "of relevance to the development" the subject of the development application: s 79C(1)(a)(iii) EPA Act, which binds the Court by reason of s 39(2) of the LEC Act; Zhang v Canterbury City Council [2001] NSWCA 167, 51 NSWLR 589 at [61] - [77]. For example, if a development control plan prescribes standards, such as building setbacks or floor space ratios or the location of brothels, which are relevant to the proposed development, the Court must take them into consideration. In my view, this obligation on the Court is concerned with substantive matters in a development control plan because they are relevant to the determination. I do not consider that it extends to procedural provisions of a development control plan such as for notification of proposed amendments to development applications. I do not think that such procedural provisions are captured by the s 79C(1) language "In determining a development application" and "of relevance to the development". Such procedural provisions are antecedent to the function exercised "In determining a development application". Moreover, I construe cl 10.1 of the DCP and its associated provisions as intended only to bind the Council, not the Court on an appeal. However, it is open to the Court, although not obligatory, to take account of notification provisions in a development control plan and, if the Court considers it appropriate, to give directions for notification in accordance with such provisions.
111Thirdly, if I am still in error, in my view it is not open to Mr V'landys to invoke cl 10.1 of the DCP because neither the parties nor he did so at the hearing or before the Commissioner delivered judgment. Although in a s 97 EPA Act appeal the Court has the functions of the consent authority (s 39(2) LEC Act), it is not the consent authority. Proceedings in the Court on a s 97 appeal are fundamentally different from the development application process before a consent authority. Proceedings in the Court are adversarial, the Court is only bound to address the principal contested issues joined between the parties, a losing party cannot raise a new argument on appeal that it failed to put at the hearing when it had the opportunity to do so, and parties are bound by the way they conduct the case: Bankstown City Council v Mohamad El Dana [2009] NSWLEC 68 at [44] - [55] where the authorities are collected. Like all other courts in NSW, this Court is under a statutory obligation to seek to give effect to the overriding purpose of the Civil Procedure Act and of rules of court to "facilitate the just, quick and cheap resolution of the real issues in the dispute or proceedings": s 56(1), (2) Civil Procedure Act. The parties are under a duty to assist the Court in its duty and, to that effect, to participate in the processes of the Court and to comply with directions and orders of the Court: s 56(3). Importantly, a party is under a duty to take reasonable steps to resolve or narrow the issues in dispute in a way that is consistent with that overriding purpose: s 56(3A). In a s 97 appeal, the Council is a party and represents the interest of its constituents including objectors. The hearing is of course open to the public including objectors. Unlike the consent authority, the Court must give reasons for its decision. Consistently with this scheme, the Court requires each party in a s 97 appeal to file a statement of facts and contentions before the hearing. If, for example, neither the parties nor objectors identify any issue to the Court arising under a development control plan, in my view they cannot after judgment is delivered complain, in an appeal by a party under s 56A of the LEC Act or by an objector in prerogative relief proceedings such as these, that the Court failed to take into account a mandatory consideration under s 79C(1) of the EPA Act arising under the development control plan. Yet that is what Mr V'landys is doing. He is invoking cl 10.1 of the DCP when neither he or anyone else at the hearing mentioned it to the Commissioner at any time.
112The principles discussed above are concerned with the substantive issues in the case. As procedural fairness is not a substantive issue, all aspects of a duty of procedural fairness are not regulated in the same way. However, where, as here, it is said that the duty equates to adjourning the hearing in order to give notification in accordance with the provisions of a development control plan that the Court is bound to consider under s 79C(1)(a)(iii) of the EPA Act, in my opinion it is incumbent on a party or an objector, if necessary through the Council which represents the objector's interests, to make that adjournment application before the Commissioner. In my view, a complaint of "failure" of a Commissioner to adjourn a hearing so as to notify changes in accordance with a development control plan cannot normally be regarded as a denial of procedural fairness if no application for such an adjournment was made. I consider that this is so in a case such as this where the objector, Mr V'landys, was present at the hearing with his solicitor, conferred with the Council's solicitor during the hearing, and was called by the Council to give evidence as to what he thought of the contentious conditions.
113In summary, Mr V'landys has not established either the DCP ground or the Mison ground. Consequently, I find that there was no denial of procedural fairness, nor was the development consent granted beyond power in contravention of Mison. Therefore, Mr V'landys' challenge to the Commissioner's decision on the basis of jurisdictional error has not been made out.
114As Mr V'landys relied on the same two grounds to establish error of law on the face of the record, see above at [11] and [38], this challenge also fails.