V'landys v Land and Environment Court of NSW

INTRODUCTION 1The applicant, Mr Peter V'landys, commenced these proceedings in the Supreme Court (in the Court of Appeal to which they were assigned under s 48 of the Supreme Court Act 1970) claiming prerogative relief pursuant to ss 65 and 69 of the Supreme Court Act. The Court of Appeal transferred the proceedings to this Court pursuant to s 149B(1) of the Civil Procedure Act 2005, which provides for such a transfer if it is more appropriate for the proceedings to be heard in this Court. As a result of the transfer, this Court has all the jurisdiction of the Supreme Court in relation to the proceedings: s 149E Civil Procedure Act. 2Mr V'landys seeks relief in the nature of certiorari to quash a decision of the Acting Senior Commissioner of the Court granting development consent and allowing a merits appeal under s 97 of the Environmental Planning and Assessment Act 1979 (EPA Act): Dive v Hunters Hill Council [2012] NSWLEC 1045. Such an appeal is in Class 1 of the Court's jurisdiction: s 17(d) Land and Environment Court Act 1979 (LEC Act). The appeal was by the third respondents, Mr Steven Dive and Mrs Melanie Dive, against refusal by the second respondent, Hunters Hill Council, of their development application. The development application was for alterations and additions to the Dives' single storey house, which they own and occupy, at 7 Elgin Street, Woolwich (the Site). The alterations and additions included a first floor addition, a covered deck on the northern street side, ground floor demolition and additions and renovations, and a swimming pool. 3Mr V'landys is the Dives' next door neighbour and resides in a double storey house at 5 Elgin Street, immediately to the west of the Site. He is concerned about adverse impacts of the proposed development on his home's panoramic easterly views, and on privacy. Mr V'landys objected to the development application and made a number of submissions to the Council in relation to it. 4These proceedings are contested only by the Dives. The Council and the first respondent (this Court) have filed submitting appearances, save as to costs. 5Relevant submissions by objectors such as Mr V'landys were a mandatory consideration for the Council (s 79C(1)(d) EPA Act) and, on the s 97 appeal, the Commissioner (s 39(2) LEC Act). An objector such as Mr V'landys was not entitled to receive notice of the appeal (s 97A(1)(a) EPA Act), nor to be a party to the appeal without leave of the Court (Lowy v The Land and Environment Court of NSW [2002] NSWCA 353, 123 LGERA 179 at [103] per Giles JA), nor to appeal on a question of law against the Commissioner's decision (s 56A(1) LEC Act). The Council had a right of appeal against the Commissioner's decision but only on a question of law under s 56A(1) of the LEC Act, but did not appeal. The Council represented the interests of objectors such as Mr V'landys in the proceedings. Mr V'landys' only avenue of challenge to the Commissioner's decision is along the prerogative relief route he has taken, consistently with the principles in Lowy. That route does not permit any review of the merits of the development application. 6In Lowy this Court had granted development consent in a Class 1 appeal by a developer against a council's refusal of a development application. An objector commenced proceedings in the Supreme Court seeking relief in the nature of certiorari to quash the decision of this Court for error of law on the face of the record or for jurisdictional error. The alleged error concerned the construction of a provision of a local environmental plan. Giles JA said that an objector who was an adjoining landowner had an interest greater than that of a general member of the public, which would ordinarily suffice for the grant of prerogative relief, and that if the alleged error of law had been established - which it had not been - certiorari would not have been declined in the exercise of discretion: at [107] - [110]. 7The present proceedings concern four conditions of the development consent changing the otherwise approved plans (which I will call the October plans because they came into existence in October 2011) that the Dives' solicitor proposed at the hearing before the Commissioner in February 2012 and which the Commissioner later adopted in his reserved judgment. There is some focus on four plans (the February plans) that the solicitor tendered at the hearing before the Commissioner as an aide-memoire to reflect the effect of the conditions, although they are not referred to in the development consent or its conditions. Those four conditions are numbered 1 to 4 in paragraph 2c of the conditions to the development consent granted by the Commissioner. Mr V'landys' closing submissions also appear to lump condition 6 (in paragraph 2c) in with conditions 1 to 4. Condition 6 was substantially the same as a condition proposed by the Council at the hearing. Paragraph 2 of the conditions of development consent approved the October plans and paragraphs 2a and 2b identified those plans by number. Conditions 1 to 4 and 6 in paragraph 2c provide: c. Changes required to the plans in 2a and 2b and the use of the proposed dwelling

1. The 27.5 degree sloping roof to the west of the first floor balcony and to the east of the proposed garage is to be deleted. In its place will be a parapet with an RL of 30, incorporating a 5 degree fall roof element.
2. The stairs are to be relocated to be south of the study and to the north of bedroom 5.
3. The northern wall of the stair is to be a minimum of 10.25m from the street boundary.
4. The roof above the stair is to have a hip presentation to Elgin Street and a maximum ridge RL of 33.832. ...
5. The roof over the building's new second storey shall be redesigned to a simple hipped roof. 8There is one insignificant divergence between the conditions proposed by the Dives and the equivalent conditions adopted by the Commissioner: the former provided for a parapet RL of 30.370 whereas the Commissioner adopted RL 30 in condition 1. 9The changes brought about by the contentious conditions are illustrated by comparing the February plans with the October plans. These changes concern the detail of about one-fifth to one-sixth of the roof on the north-western corner of the proposed first floor addition - west of the balcony and east of the garage. The change is from a sloping roof detail in that location to a flat and pitched roof, which consequently widens the view from Mr V'landys' home through the proposed balcony. In addition, the internal stairs below the roof are moved (condition 3), and the bulk of the roof is reduced by removing two gablets (condition 6). The Commissioner's reasons for judgment at [31] suggest that for streetscape reasons it is better to have a pitched roof rather than a sloping roof in this section of the roof and that, in his view, there is some consequential minor improvement to the view from Mr V'landys' property. 10The remainder of the 44 conditions listed in paragraph 2c were proposed by the Council and accepted by the Commissioner.

SUBMISSIONS 11In summary, Mr V'landys' case is that the Commissioner's decision is invalid and should be set aside on two alternative grounds, which I will call the "DCP ground" and the "Mison ground". He submits that they constituted jurisdictional error, as well as error of law on the face of the record having regard to the Class 1 application and the Commissioner's reasons for judgment, such that prerogative relief is available. Mr V'landys' submissions in relation to the two grounds may be summarised as follows: (a)The DCP ground. The power to amend a development application under cl 55 of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation) is constrained by cl 10.1 of the Hunters Hill Development Control Plan No. 20 - Notification Policy (DCP), which provides that: "Proposals for significant amendments to development applications will be notified to any person notified of the original application". By adopting the contentious conditions the Commissioner significantly amended the development application in circumstances in which there was no compliance with cl 10.1 of the DCP. Under cl 10.1 the manner and time in which Mr V'landys should have been notified and the time he should have been given to respond were regulated by cll 5.4, 8.1 and 13.1 of the DCP. They required him to be notified by letter, accompanied by appropriate A4 notification plans, containing prescribed information including the period by which submissions in writing must be made and the name of the Council's Responsible Officer, and giving 14 days for submissions subject to the discretion of a council officer to change that period. By not adjourning the hearing in order to give Mr V'landys the cl 10.1 notice, the Commissioner denied him procedural fairness in circumstances where, in breach of s 79C(1)(a)(iii) of the EPA Act, the Commissioner failed to take into consideration the requirements under the DCP to afford Mr V'landys procedural fairness. Had there been compliance with the DCP, he would have had more time to consider the proposed amendments and obtain advice as to their effect from his architect, as he had previously done. The notice that he was given at the hearing was inadequate. (b)The Mison ground. Alternatively, the contentious conditions did not amend the development application but instead significantly altered the development for which the application was made. Therefore, the purported grant of development consent was not to the development application as required by the s 80(1) of the EPA Act. 12The Mison ground is based on the principle expressed in the judgment of Priestley JA (Meagher JA agreeing) in Mison v Randwick Municipal Council (1991) 23 NSWLR 734 at 737, as follows: 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. 13In summary, Mr and Mrs Dive submit that: (a)cl 10.1 of the DCP binds the Council to give notification but is not applicable to the Court; (b)in any case, there was no amendment of the development application but imposition of conditions under s 80A(1)(a) or (g) of the EPA Act. Therefore cl 10.1 of the DCP was not engaged; (c)the changes were not significant in the context of the whole development application but merely modified details of the development. For that reason also cl 10.1 was not engaged, nor was the Mison principle engaged; and (d)if there was a duty to afford Mr V'landys procedural fairness at the hearing, he was afforded procedural fairness by notification to him of the proposed conditions and the February plans, and by giving him the opportunity, which he took, to give evidence and make submissions.

Supreme Court Act: prerogative relief 14Mr V'landys claims prerogative relief under ss 65 and 69 of the Supreme Court Act, which relevantly provide: 65 Order to fulfil duty (1) The Court may order any person to fulfil any duty in the fulfilment of which the person seeking the order is personally interested. ... 69 Proceedings in lieu of writs (1) Where formerly: (a) the Court had jurisdiction to grant any relief or remedy or do any other thing by way of writ, whether of prohibition, mandamus, certiorari or of any other description, or (b) in any proceedings in the Court for any relief or remedy any writ might have issued out of the Court for the purpose of the commencement or conduct of the proceedings, or otherwise in relation to the proceedings, whether the writ might have issued pursuant to any rule or order of the Court or of course, then, after the commencement of this Act: (c) the Court shall continue to have jurisdiction to grant that relief or remedy or to do that thing; but (d) shall not issue any such writ, and (e) shall grant that relief or remedy or do that thing by way of judgment or order under this Act and the rules, and (f) proceedings for that relief or remedy or for the doing of that thing shall be in accordance with this Act and the rules. ... (3) It is declared that the jurisdiction of the Court to grant any relief or remedy in the nature of a writ of certiorari includes jurisdiction to quash the ultimate determination of a court or tribunal in any proceedings if that determination has been made on the basis of an error of law that appears on the face of the record of the proceedings. (4) For the purposes of subsection (3), the face of the record includes the reasons expressed by the court or tribunal for its ultimate determination. ...

Legislation re Class 1 proceedings 15Mr V'landys' claim has to be considered in the statutory context in which the Commissioner determined the appeal before him. I have mentioned that the proceedings before the Commissioner were in Class 1 of the Court's jurisdiction. The procedure and powers of the Court in Class 1 proceedings are different from those of the Court in conventional legal proceedings, such as in Class 4, mainly because they are governed by ss 38 and 39 of the LEC Act, which provide: 38 Procedure (1) Proceedings in Class 1, 2 or 3 of the Court's jurisdiction shall be conducted with as little formality and technicality, and with as much expedition, as the requirements of this Act and of every other relevant enactment and as the proper consideration of the matters before the Court permit. (2) In proceedings in Class 1, 2 or 3 of the Court's jurisdiction, the Court is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate and as the proper consideration of the matters before the Court permits. (3) Subject to the rules, and without limiting the generality of subsection (2), the Court may, in relation to proceedings in Class 1, 2 or 3 of the Court's jurisdiction, obtain the assistance of any person having professional or other qualifications relevant to any issue arising for determination in the proceedings and may receive in evidence the certificate of any such person. (4) In proceedings in Class 1, 2 or 3 of the Court's jurisdiction, the Court may, in respect of a matter not dealt with by this Act or the rules, give directions as to the procedure to be followed at or in connection with the hearing. (5) In this section, a reference to the Court includes a reference to the Commissioner or Commissioners directed under section 36 to hear and dispose of proceedings.

39 Powers of Court on appeals (1) In this section, appeal means an appeal, objection, reference or other matter which may be disposed of by the Court in proceedings in Class 1, 2 or 3 of its jurisdiction. (2) In addition to any other functions and discretions that the Court has apart from this subsection, the Court shall, for the purposes of hearing and disposing of an appeal, have all the functions and discretions which the person or body whose decision is the subject of the appeal had in respect of the matter the subject of the appeal. (3) An appeal in respect of such a decision shall be by way of rehearing, and fresh evidence or evidence in addition to, or in substitution for, the evidence given on the making of the decision may be given on the appeal. (4) In making its decision in respect of an appeal, the Court shall have regard to this or any other relevant Act, any instrument made under any such Act, the circumstances of the case and the public interest. (5) The decision of the Court upon an appeal shall, for the purposes of this or any other Act or instrument, be deemed, where appropriate, to be the final decision of the person or body whose decision is the subject of the appeal and shall be given effect to accordingly. (6) Notwithstanding any other provision of this section, if an appeal relates to an application made to a council within the meaning of the Local Government Act 1993 or a consent authority within the meaning of the Environmental Planning and Assessment Act 1979 and that council or consent authority may not approve of, consent to, or deal with, or grant a permission in respect of, the application except after consultation with, or with the concurrence or approval of, any person or body: (a) the Court may determine the appeal whether or not the consultation has taken place and whether or not the concurrence or approval has been granted, and (b) in a case where the concurrence or approval has been granted-the Court may vary or revoke any conditions imposed by that person or body or may impose any conditions that could have been imposed by that person or body. ... (7) The functions of the Court under this section are in addition to and not in derogation from any other functions of the Court. 16Section 39(2) and (7) refer to "functions", which is defined in s 4 of the LEC Act as including "powers, authorities and duties". 17Under s 34AA of the LEC Act, a pre-hearing conciliation conference before a Commissioner is mandatory in residential merits appeals made pursuant to s 97 of the EPA Act, such as the Dives' appeal. Section 34AA(2) provides: 34AA Mandatory conciliation and arbitration ... (2) Section 34 applies to the proceedings with the following modifications: (a) the Court must arrange a conciliation conference between the parties and their representatives with or without their consent, Note. The Commissioner has the discretion to determine the place (including an on-site hearing) fixed for the conciliation conference. (b) if no agreement of a kind referred to in section 34 (3) is reached, the Commissioner who presides over the conciliation conference must terminate the conciliation conference and, subject to this section, dispose of the proceedings: (i) following a hearing held forthwith, or (ii) if the parties consent, on the basis of what has occurred at the conciliation conference. 18That provision refers to s 34(3) which provides: If, either at or after a conciliation conference, agreement is reached between the parties or their representatives as to the terms of a decision in the proceedings that would be acceptable to the parties (being a decision that the Court could have made in the proper exercise of its functions), the Commissioner: (a) must dispose of the proceedings in accordance with the decision, and (b) must set out in writing the terms of the decision. 19Thus, if agreement is reached between the parties at a conciliation conference, it is mandatory for the Commissioner to dispose of the proceedings in accordance with the agreement (if it is one that represents a decision the Court could have made in the proper exercise of its functions). 20Overarching the procedures in all classes of the Court's jurisdiction is s 56 of the Civil Procedure Act, which provides in part: 56 Overriding purpose (1) The overriding purpose of this Act and of rules of court, in their application to a civil dispute or civil proceedings, is to facilitate the just, quick and cheap resolution of the real issues in the dispute or proceedings. (2) The court must seek to give effect to the overriding purpose when it exercises any power given to it by this Act or by rules of court and when it interprets any provision of this Act or of any such rule. (3) A party to civil proceedings is under a duty to assist the court to further the overriding purpose and, to that effect, to participate in the processes of the court and to comply with directions and orders of the court. (3A) A party to a civil dispute or civil proceedings is under a duty to take reasonable steps to resolve or narrow the issues in dispute in accordance with the provisions of Part 2A (if any) that are applicable to the dispute or proceedings in a way that is consistent with the overriding purpose. (4) Each of the following persons must not, by their conduct, cause a party to a civil dispute or civil proceedings to be put in breach of a duty identified in subsection (3) or (3A): (a) any solicitor or barrister representing the party in the dispute or proceedings, (b) any person with a relevant interest in the proceedings commenced by the party. (5) The court may take into account any failure to comply with subsection (3), (3A) or (4) in exercising a discretion with respect to costs. ...

Legislation re amendment of development applications 21Clause 55 of the EPA Regulation empowers, and sets out requirements for, amendment or variation of a development application: (1) A development application may be amended or varied by the applicant (but only with the agreement of the consent authority) at any time before the application is determined. (2) If an amendment or variation results in a change to the proposed development, the application to amend or vary the development application must have annexed to it written particulars sufficient to indicate the nature of the change of development. ... 22It has been accepted that cl 55 applies in a s 97 EPA Act appeal such that the Court has power to grant leave to amend a development application: Radray Constructions Pty Ltd v Hornsby Shire Council [2006] NSWLEC 155, 145 LGERA 292 per Jagot J. If that were not so, the Court could fall back on its general power to grant leave to amend documents in the proceedings: s 64(1)(a) Civil Procedure Act. 23If the Court allows an applicant in a s 97 EPA Act appeal to file an amended development application other than to make a minor amendment, the Court must order the applicant to pay the consent authority's resultant costs thrown away: s 97B EPA Act.

Legislation re development consents and conditions 24The power to determine a development application is found in s 80 of the EPA Act, which provides in part: 80 Determination (1) General A consent authority is to determine a development application by: (a) granting consent to the application, either unconditionally or subject to conditions, or (b) refusing consent to the application. ... (4) Total or partial consent A development consent may be granted: (a) for the development for which the consent is sought, or (b) for that development, except for a specified part or aspect of that development, or (c) for a specified part or aspect of that development. (5) The consent authority is not required to refuse consent to any specified part or aspect of development for which development consent is not initially granted under subsection (4), but development consent may subsequently be granted for that part or aspect of the development. ... 25The power of determination is not unconstrained but is subject to an obligation to consider the matters in s 79C(1) of the EPA Act insofar as they are of relevance to the development. Consideration of such matters is a pre-condition to the validity of the determination of a development application: Design Power Assocs Pty Ltd v Willoughby City Council [2005] NSWLEC 470, 148 LGERA 233 at [17] per Lloyd J. Section 79C(1) relevantly provides: 79C 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: (a) the provisions of: (i) any environmental planning instrument, and ... (iii) any development control plan, and ... (b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality, ... (d) any submissions made in accordance with this Act or the regulations, (e) the public interest. 26Section 80A(1)(a) and (g) of the EPA Act, which the Dives submit empowered the Commissioner to impose the contentious conditions, and s 80A(4), which was introduced after Mison, provide: 80A Imposition of conditions (1) Conditions-generally A condition of development consent may be imposed if: (a) it relates to any matter referred to in section 79C (1) of relevance to the development the subject of the consent, or ... (g) it modifies details of the development the subject of the development application,... ... (4) Conditions expressed in terms of outcomes or objectives A consent may be granted subject to a condition expressed in a manner that identifies both of the following: (a) one or more express outcomes or objectives that the development or a specified part or aspect of the development must achieve, (b) clear criteria against which achievement of the outcome or objective must be assessed. 27The Dives submit that s 80A(1)(a) applies because the contentious conditions related to relevant matters referred in s 79C(1)(a)(i), (iii) and (b) of the EPA Act. I think that s 79C(1)(d) is also relevant. 28Section 80(4) of the EPA Act, set out above, is of comparative interest in this case. 29The Court's Practice Note - Class 1 Residential Development Appeals (the Practice Note) provides at [40]: Leave will usually not be given to amendments where to do so would require either the vacation of the final hearing (for applications to amend made prior to a hearing which has been fixed) or the adjournment of the final hearing (for applications to amend made during the final hearing). An alternative course that should be considered by an applicant is for the residential development the subject of the application to be amended by means of conditions of development consent or approval if the Court considers the grant of such development consent or approval is appropriate.

Legislation re notification of development applications 30A council may prepare a development control plan if it considers it necessary or desirable, inter alia, to provide for public or particular advertising or notification of, inter alia, a development application for specified development (other than a development application for certain developments which are not relevant in this case): s 74C(1)(c) EPA Act. 31Section 79A(2) of the EPA Act provides for the notification of a development application in accordance with the provisions of a development control plan as follows: A development application for specified development (other than designated development or advertised development) must be notified or advertised in accordance with the provisions of a development control plan if the development control plan provides for the notification or advertising of the application. 32In the present case the DCP is such a development control plan in that it requires development applications to be notified in accordance with its provisions. Part 3 of the DCP sets out its purposes. In cl 3.5 one of those purposes is described to be: To set out the rights of adjoining, neighbouring and interested owners and residents to make submissions on applications and in respect of the determination of applications by the Council. 33At the heart of Mr V'landys' DCP ground is cl 10.1 of the DCP which is entitled "Amendments to Applications, Modifications to Development Consent and Reviews of Determinations": Proposals for significant amendments to development applications will be notified to any person notified of the original application. 34As the subject development was a "Local Development" as defined in the DCP, Mr V'landys was notified of the original development application under cl 6.1, which provides: 6. Who is to be Notified? 6.1 The Responsible Officer shall cause notice of all applications for Local Development to be directed to all adjoining property owners and any other affected persons, provided that the Responsible Officer is of the opinion that the proposed building may have, after its erection, a detrimental affect [sic] on the following: (a) the views to and the views from the adjoining land; (b) the overshadowing of the adjoining land; (c) the privacy of the adjoining land; (d) the likelihood of the adjoining land being detrimentally affected by noise. 35Mr V'landys contends that a cl 10.1 notice of the contentious conditions had to be given to him by letter accompanied by A4 plans as required by cl 5.4, containing the information prescribed by cl 8.1, and giving him 14 days to make submissions in accordance with cl 13.1 unless that period was varied by the council officer referred to in cl 13.1. Those clauses provide as follows: 5.4 Development Applications for Local Development shall be notified (exemptions as provided by Clause 11) by letter accompanied by the appropriate A4 notification plan (where building works are involved) to the owners of adjoining and neighbouring land where appropriate. 8. What is to be Contained in the Notice? 8.1 Advertisements and notices will contain: (a) the location of the proposed works or development; (b) a brief description of the works or development; (c) period by which submissions in writing must be received; (d) the name of the Responsible Officer; (e) the location where, times when and period during which the plans relating to the application can be viewed; (f) a plan showing the height and external configuration of the building in relation to the site on which it is proposed to be erected.

13. Period for Receipt of Submissions 13.1 Submissions may be made up to the date nominated on the relevant notice and advertisement, but shall generally be 14 calender days. This may vary at the discretion of the Manager Development & Environment where expedient to so [sic], and in relation to amendments to undetermined applications. 36The combined effect of s 79A(2) of the EPA Act and the DCP is that those, like Mr V'landys, who come within cl 6.1 of the DCP are to be notified and are entitled to make submissions to the consent authority. 37The Practice Note, in the context of applications for final consent orders, refers to notice to objectors, at [49]: At the hearing, the parties will be required to present such evidence as is necessary to allow the Court to determine whether it is lawful and appropriate to grant the consent or approval having regard to the whole of the relevant circumstances, including the proposed conditions. The consent authority will be required to demonstrate that relevant statutory provisions have been complied with and that any objection by any person has been properly taken into account. Additionally, the consent authority will be required to demonstrate that it has given reasonable notice to all persons who objected to the proposal of the following: (i) the content of the proposed orders (including the proposed conditions of consent); (ii) the date of the hearing by the Court to consider making the proposed consent orders; and (iii) the opportunity for any such person to be heard, or that, in the circumstances of the case, notification is not necessary.

JURISDICTIONAL ERROR AND ERROR ON THE FACE OF THE RECORD 38Mr V'landys alleges jurisdictional error and error of law that appears on the face of the record. I accept that if his contentions are correct, then both the DCP ground and the Mison ground constitute jurisdictional error and that the Mison ground also constitutes error on the face of the record. I do not think that the DCP ground constitutes error on the face of the record because it is not apparent from the face of the record whether or not the hearing was adjourned and notice given under the DCP. 39The Supreme Court has supervisory jurisdiction to enforce the limits of the exercise of judicial power by all other State courts, including other superior courts of record such as the Land and Environment Court (so constituted by s 5 of the LEC Act), as well as enforcing the limits of the exercise of executive power: Kirk v Industrial Court of New South Wales [2010] HCA 1, 239 CLR 531 at [98] - [99]. The supervisory jurisdiction of the Supreme Court permits the grant of prerogative relief (a) in the nature of certiorari, mandamus or prohibition where there has been jurisdictional error: Public Service Association of South Australia Inc v Industrial Relations Commission (SA) [2012] HCA 25, 86 ALJR 862 at [60]; and (b) in the nature of certiorari where there has been error of law which appears on the face of the record: s 69(3) Supreme Court Act. For the purposes of the latter, "the face of the record" includes the Commissioner's reasons for his determination: s 69(4). Ordinarily, a determination of jurisdictional error makes consideration of whether there is an error of law on the face of the record superfluous: Kirk at [78]. A privative clause in a State statute which purports to strip the Supreme Court of a State of its supervisory jurisdiction by granting relief on the ground of jurisdictional error is beyond the power of the State legislature: Kirk at [55]. 40Jurisdictional error is a failure to comply with an essential precondition or limit to the valid exercise of a power: Spanos v Lazaris [2008] NSWCA 74 at [15] per Basten JA (Beazley and Bell JJA agreeing), cited in Mahmoud v Sutherland [2012] NSWCA 306 at [26] - [29]; Kirk at [66]. In other words, jurisdictional error is an error of law of such a nature that it renders the decision invalid as being beyond power: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30, 206 CLR 323 at [82], [1]. 41Jurisdictional error can occur at any stage of the decision-making process. Thus, failure to accord procedural fairness during the hearing is a species of jurisdictional error: Kirk at [60]. 42It is not possible to mark the metes and bounds of jurisdictional error: Kirk at [71]. In Craig v The State of South Australia [1995] HCA 58, 184 CLR 163 at 179 the High Court listed six categories of jurisdictional error with respect to administrative tribunals: If such an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it. 43The Craig list of six is not exhaustive and its categories may overlap: Yusuf at [82]. Further categories of jurisdictional error include procedural unfairness and bad faith: Area Concrete Pumping Pty Ltd v Inspector Barry Childs (WorkCover) [2012] NSWCA 208 at [76]; Kirk at [71] fn199; Mahmoud at [29]. The requirement of procedural fairness is an implied statutory requirement in the absence of a contrary indication: Plaintiff M61/2010E v The Commonwealth of Australia [2010] HCA 41, 243 CLR 319 at [74]; Area Concrete at [79]. In each case it is necessary to establish, by reference to the legislative purpose, whether it has been demonstrated that any established error was intended to spell invalidity: Area Concrete at [77]. 44The Craig list includes ignoring relevant material or relying on irrelevant material. They only constitute jurisdictional error if they are matters which the statute expressly or impliedly mandates are required or forbidden to be taken into account, as distinct from what the Court thinks should or should not have been taken into account: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40, 162 CLR 24 at 39 - 40; Kindimindi Investments Pty Ltd v Lane Cove Council [2006] NSWCA 23, 143 LGERA 277 at [73]. 45Craig separately addressed the ambit of jurisdictional error by inferior courts (as distinct from administrative tribunals). In that regard, Kirk at [72] summarised the Craig reasoning as follows: First, the Court stated, as a general description of what is jurisdictional error by an inferior court, that an inferior court falls into jurisdictional error "if it mistakenly asserts or denies the existence of jurisdiction or if it misapprehends or disregards the nature or limits of its functions or powers in a case where it correctly recognises that jurisdiction does exist" (emphasis added). Secondly, the Court pointed out that jurisdictional error "is at its most obvious where the inferior court purports to act wholly or partly outside the general area of its jurisdiction in the sense of entertaining a matter or making a decision or order of a kind which wholly or partly lies outside the theoretical limits of its functions and powers" (emphasis added). (The reference to "theoretical limits" should not distract attention from the need to focus upon the limits of the body's functions and powers. Those limits are real and are to be identified from the relevant statute establishing the body and regulating its work.) Thirdly, the Court amplified what was said about an inferior court acting beyond jurisdiction by entertaining a matter outside the limits of the inferior court's functions or powers by giving three examples: (a) the absence of a jurisdictional fact; (b) disregard of a matter that the relevant statute requires be taken to account as a condition of jurisdiction (or the converse case of taking account of a matter required to be ignored); and (c) misconstruction of the relevant statute thereby misconceiving the nature of the function which the inferior court is performing or the extent of its powers in the circumstances of the particular case. The Court said of this last example that "the line between jurisdictional error and mere error in the exercise of jurisdiction may be particularly difficult to discern" and gave as examples of such difficulties R v Dunphy; Ex parte Maynes, R v Gray; Ex parte Marsh and Public Service Association (SA) v Federated Clerks' Union. 46In Kirk the High Court held that there had been two jurisdictional errors by a superior court of record in a criminal prosecution: proceeding in the absence of sufficient particulars by the prosecution (held to constitute misinterpretation of a statutory provision) and allowing the defendant Mr Kirk to be called as a witness by the prosecution even though it was by agreement (held to be a breach of the Evidence Act 1995). The categorisation of such errors as jurisdictional suggests that the boundaries of jurisdictional error extend a long way, with a corresponding shrinkage in non-jurisdictional errors of law. 47A distinction drawn by the High Court is between jurisdictional error by an administrative tribunal and by a court. When this Court, whether by a judge or a commissioner, exercises Class 1 jurisdiction, it does so as a court even though it exercises the functions of an administrative decision-maker, the consent authority: s 39(2) LEC Act. 48A conclusion of jurisdictional error involves three steps: Area Concrete at [77] - [82]. First, to establish an excess or want of jurisdiction, it is necessary to identify the sources of the jurisdiction or power. Secondly, whether the obligation be derived from statute or the general law, it is necessary to determine whether there has been any breach or non-compliance, and its nature and extent. Thirdly, to determine the consequences of that failure, it is necessary to establish "whether it was a purpose of the legislation that an act done in breach of the provision should be invalid": Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28, 194 CLR 355 at [93]. 49An exercise of power in the absence of a jurisdictional fact is a species of jurisdictional error: Kirk at [72]. A jurisdictional fact is a criterion, satisfaction of which enlivens the exercise of a statutory power or discretion: Corporation of the City of Enfield v Development Assessment Commission [2005] HCA 5, 199 CLR 135 at [28]; Gedeon v Commissioner of the New South Wales Crime Commission [2008] HCA 43, 236 CLR 120 at [43]; Calardu Penrith Pty Ltd v Penrith City Council [2010] NSWLEC 50 at [39]; Tweed Business and Residents Focus Group Inc v Northern Region Joint Regional Planning Panel [2012] NSWLEC 166 at [13]. A jurisdictional fact may be of the objective variety or of the subjective variety. If of the objective variety, it is required objectively to exist and, ultimately, whether it objectively exists is a matter for the Court to determine. If of the subjective variety, its existence is to be determined to the reasonable satisfaction of the decision-maker and, ultimately, the only question for the Court is whether it has been established that the decision-maker was not reasonably satisfied. A particular fact referred to in a statute might look like an objective jurisdictional fact, yet an implication may be found in the statute that it is no more than a jurisdictional fact of the subjective variety. For example, see Barrick Australia Ltd v Williams [2009] NSWCA 275, 74 NSWLR 733 at [38] - [42].

PROCEDURAL FAIRNESS 50The rules of procedural fairness regulate the exercise of statutory power unless they are excluded by words of necessary intendment: Annetts v McCann [1990] HCA 57, 170 CLR 596 at 598. The extent to which a third party in the position of the Mr V'landys is entitled to be accorded procedural fairness in the determination of the Dives' development application is to be considered by reference to the relevant legislative provisions: Kioa v West [1985] HCA 81, 159 CLR 550 at 584-585; Vanmeld Pty Ltd v Fairfield City Council [1999] NSWCA 6, 46 NSWLR 78 at [179] - [183], [188] - [190]. Therefore, the extent to which the rules of procedural fairness apply in this case is to be determined by reference to the EPA Act and the regulations and instruments made under it.

BACKGROUND FACTS 51In July 2010, the Dives lodged a development application for alterations and additions to their existing house on the Site, described above at [2]. 52The proposed development is for "Local Development" as defined in the DCP. The relevant council officer concluded that, pursuant to cl 6.1 of the DCP, notice of the development application should be directed to Mr V'landys and in July 2010 such notice was given. In August 2010 Mr V'landys objected to, and made submissions in respect of, the development application. 53In December 2010 the Dives amended the development application by lodging amended plans. Consistently with cl 10.1, Mr V'landys was notified of the amendments. Later in December 2010 he made submissions in respect of those amended plans. 54In March 2011 the Council refused the development application. 55In October 2011 the Dives lodged an application for review under s 82A of the EPA Act together with further amended plans (the October plans). On 13 December 2011 Mr V'landys made submissions in respect of the s 82A review and the further amended plans. 56Mr V'landys' various written submissions to the Council were made with the assistance of an architect, Mr Christopher Dunkerley, who advised him in respect of the impact on his views. He also had legal assistance with drafting. Such assistance was not disclosed to the Council. 57In general terms, it was Mr V'landys' position that the Elgin Street frontage of the house on the Site should be pulled back with the balcony relocated to the east to reduce the impact on his views. He also had an issue with the height or style of the roof. 58In December 2011 an appeal by the Dives against the Council's refusal of the development application was filed with the Court. 59On 18 January 2012 the Council's solicitors notified Mr V'landys that the appeal was listed for a mandatory conciliation conference and any hearing under s 34AA of the LEC Act, to commence on 21 February 2012. The letter stated that if agreement between the parties cannot be reached at the conciliation conference the matter would proceed directly to a hearing, that the Commissioner may provide him with an opportunity to address his concerns to the Commissioner at the conference, and that if the matter proceeds to a hearing he would be given an opportunity to address the Commissioner. 60On 19 January 2012 Mr V'landys emailed the Council's solicitors stating that he wished to assist the Council in every way possible and that if they believed it would be beneficial for him to speak at both the conciliation conference and the hearing, he would be pleased to do so. 61Prior to 21 February 2012 the Council filed and served its proposed conditions of consent. 62On 21 February 2012 there was a mandatory conciliation conference between the Dives and the Council under s 34AA of the LEC Act. The Acting Senior Commissioner conducted the conciliation conference and the hearing. 63There is no recording or transcript of what occurred that day. What occurred is taken partly from the reasons for judgment of the Commissioner of 29 February 2012 and partly from the evidence of three witnesses: Mr V'landys, his solicitor and the Dives' solicitor. Their recollection differed on a couple of matters that occurred during the hearing. I think that they all did their best to accurately recall what was said and done. On behalf of Mr V'landys there was a challenge, which I do not accept, to the reliability of the recollection of the Dives' solicitor based largely on the fact that he was a busy solicitor with many cases in this jurisdiction. The impression I formed from their oral evidence was that the recollection of the Dives' solicitor was more reliable and generally to be preferred where there was inconsistency between them. 64The mandatory conciliation conference between the Dives and the Council was held at the Site in the morning of 21 February 2012 and was conducted by the Commissioner. The Dives and the Council were each represented by a solicitor advocate. 65Mr V'landys had no right to attend, and did not attend, the conciliation conference. However, a council officer who attended the conference spoke to him before, during and at the end of the conference. Before the conference, the council officer as well as the Council's solicitor advocate indicated to him that the Council was proposing to the Dives a smaller balcony with no roof. 66No agreement between the parties was reached at the conciliation conference. Mr V'landys arrived at the Site as the conference was winding up. The Commissioner terminated the conciliation conference and proceeded to deal with the proceedings by a hearing held forthwith, as required by s 34AA(2)(b)(i) of the LEC Act. 67The Commissioner, the parties, their solicitors and town planning experts then attended Mr V'landys' home to assess the view loss and better understand the joint report of the town planning experts. Mr V'landys gave evidence and made submissions to the Commissioner at this viewing at his home. He advocated a change in the design, for example by not having a roof on the deck or such a high roof on the house, to avoid what he submitted was a "catastrophic" effect upon his views and privacy. 68The hearing commenced at 2.00 pm that day in a courtroom. 69Mr V'landys and his solicitor attended the hearing. The Dives' solicitor tendered a handwritten list of four draft conditions (conditions 1 - 4 set out above at [7]) and the February plans to show the effect of those conditions. They became Exhibit D before the Commissioner. Exhibit D was one of the exhibits later returned by the Commissioner after he delivered judgment on 29 February. It cannot now be located. The Dives' solicitor gave an explanation of the conditions and the February plans. 70There is a minor contest before me as to precisely which plans were the February plans tendered by the Dives as part of Exhibit D. They certainly included the four plans which, with a copy of the draft conditions, are Exhibit 2 before me, subject to two qualifications. First, on one of those plans, 20958/DA-05, there is a printed diagonal line on the roof next to which appears in print "+32.851": that printing was handwritten on the version of that plan tendered before the Commissioner. Before me, the Dives' solicitor had a clear recollection that, subject to that qualification, the plans in Exhibit 2 were the plans tendered as part of Exhibit D before the Commissioner. The second qualification is that the plans tendered before the Commissioner may have been A4 size whereas the corresponding plans in evidence before me (Exhibit 2) are A3 size. Also in evidence before me as Exhibit C are A4 size plans provided electronically in March 2012 by the Council's solicitors to Mr V'landys' solicitor following the latter's request for copies of the Dives' plans tendered at the hearing. They include one plan additional to the four plans in Exhibit 2, being roof plan 20958/DA-04, as well as duplicate plans. It is submitted on behalf of Mr V'landys that this plan was also one of the February plans. I do not accept the submission. I also do not think it is significant whether or not it was one of the February plans. Although it is not known how or when the Council's solicitors came to be in possession of this additional plan, the Dives' solicitor was strong in his recollection that it was not tendered before the Commissioner. Mr V'landys really could not say more than that the plans before the Commissioner were not coloured (in fact Exhibit C before me includes coloured plans) and there were pen marks on them, from which he concluded that the plans in Exhibit C, which have pen marks on them, appeared more like the Dives' plans that he saw at the hearing before the Commissioner. Mr V'landys' recollection on this point is not good and I prefer that of the Dives' solicitor. 71Before the Commissioner, the Council's solicitor objected to the tender of the February plans which became part of Exhibit D saying that he could not deal with an amendment to the development application at that late stage and that it denied him procedural fairness. The Dives' solicitor responded that he was not seeking to amend the development application and that the purpose of the plans was as an aide-memoire of the conditions proposed by the Dives. When the Council's solicitor requested a ruling on his objection, the Commissioner stated that there was no amendment and allowed the Dives' proposed conditions with the attached February plans to be Exhibit D before him. Although in evidence before me Mr V'landys and his solicitor denied that the Commissioner made that statement, I prefer the clear recollection of the Dives' solicitor that it was made. Given the preceding discussion, it is also logical that the Commissioner would have made such a ruling. 72The Commissioner adjourned the hearing for a time during the course of that afternoon to give the Council's solicitor an opportunity to explain the February plans to his client (whose representatives were in Court) and to consider the conditions tendered by the Dives. He said he wanted the parties' advocates to return after the adjournment with the conditions that were acceptable to their clients. 73During the adjournment, the Council's solicitor and a council officer conferred with Mr V'landys and explained the Dives' draft conditions and the February plans, as well as the Council's supplementary draft of 12 further conditions entitled "Without Prejudice Conditions". Mr V'landys said in evidence before me that he did not quite understand the February plans because he did not really understand how to read plans. I accept that his understanding of plans was limited. On the other hand, I am satisfied that he had a fair understanding of the words of the conditions he saw during the adjournment proposed by both parties. In cross-examination, a number of the Council's without prejudice conditions were put to him and he agreed he understood them. He also agreed that he understood the written submissions he had made on the s 82A review, although he later partly qualified that admission. 74During the adjournment the Council's solicitor handed the Dives' solicitor a copy of the Council's draft "Without Prejudice Conditions", which were later handed up during the hearing. 75Before me the witnesses differed in their recollections as to the length of the adjournment. The Dives' solicitor's recollection was that it was approximately 15 minutes, Mr V'landys five to 10 minutes, and Mr V'landys' solicitor three minutes. Having read and listened to their evidence and having regard to the purpose of the adjournment and what occurred during it, I conclude that the adjournment was probably for about 10 to 15 minutes. 76When the hearing before the Commissioner resumed, the Council's solicitor called Mr V'landys to give evidence in relation to the Dives' proposed conditions and the February plans and view sharing. Mr V'landys substantially reiterated what he had said to the Commissioner that morning and said that he did not think the Dives' proposed amendments addressed his concerns at all. 77Neither Mr V'landys nor either of the parties requested a further adjournment of the hearing to consider the Dives' proposed conditions and the February plans. No one suggested that cl 10.1 of the DCP applied such that there should be an adjournment to give Mr V'landys notice by letter of the conditions, containing prescribed information and giving him 14 days to make submissions (cll 6.1, 8.1, 13.1). Mr V'landys did not indicate that he wished to have the opportunity to consult an architect or anyone else.

COMMISSIONER'S JUDGMENT 78In his reserved judgment at [3] the Commissioner summarised the Council's contentions as follows: (a)inadequate view sharing with Mr V'landys' adjoining property; (b)loss of privacy for Mr V'landys' property; and (c)unacceptable roof form in relation to the streetscape and compatibility with the character and scale of surrounding development. 79The Commissioner analysed the evidence as to view sharing by planning experts for the Dives and the Council, both addressing in particular the impact on existing views from Mr V'landys' property, through the principles on view sharing in Tenacity Consulting Pty Ltd v Warringah Council [2004] NSWLEC 140, 134 LGERA 23. He noted the largely unencumbered views to the east from three viewing locations at Mr V'landys' property, namely, the deck view, the living area view and the balcony view. He concluded for a number of reasons that the proposed development, with some minor changes, was acceptable when tested against the principles in Tenacity and the objectives and general requirements in the relevant development control plan: at [16]. 80The Commissioner said of the conditions proposed at the hearing and the view loss issue: 15 As part of the conciliation phase of the hearing, the parties discussed a number of changes to the proposed development and while there was some agreement, the extent of changes did not fully address the concerns of Mr Adamson [the Council's town planner]. The changes addressed part of the roof form on the north western corner of the building that contains the study and the stair to the first floor level. The effect of the changes was to create a roof form more consistent with the pitched roof character in the area and with the consequent benefit of improving the view through the proposed deck from the east facing living room doors at 5 Elgin Street. The applicant tendered conditions (and also plans that showed the effect of the proposed conditions) to reflect this change. In addition, other minor changes that reduced the bulk of the roof by changing it from a Dutch gable roof with gablets to a simpler pyramid roof form and reducing its overall height were proposed by the council and accepted by the applicant. 16 With the benefit of the site inspection, the presence of the height poles, observations of the existing views from the three viewing locations at 5 Elgin Street; a clear understanding was gained of the impact on the existing views by the proposed development. I am satisfied that the proposed development, with some minor changes, is acceptable when tested against the principles in Tenacity and the objectives and general requirements in DCP 15 for number of reasons. ... 19 On the question of whether the proposed development monopolises or unduly obstructs existing views and does not minimise view loss to adjoining properties, I can comfortably conclude that the answer should be answered in the negative. 20 I accept the evidence of Mr Minto that the effect on views should be considered collectively from the three viewing locations at 5 Elgin Street. Even though the most significant impact is on the living room and that there was agreement that this location was the most significant of the three viewing locations in the dwelling, it must also be remembered that this location is also the most susceptible to any development of the site because of its location directly opposite the area on the site where any redevelopment is likely to take place. This needs to be compared to the deck viewing area where views are retained to the east by the different street setbacks of the decks and the balcony viewing area where views are largely retained because of the elevation of this area and ability to view over a large area of the proposed development. These views were also enhanced with the amendments to the roof form of the proposed development. ... 22 Using the qualitative terms used in Tenacity, I would describe the view loss from the deck, living area and balcony as moderate, severe and minor, respectively. Collectively, I am satisfied that the view loss created by the proposed development does not monopolise or unduly obstruct existing views and minimises view loss to adjoining properties. (emphasis added) 81Under the heading "Character/streetscape" the Commissioner considered the requirements of a local environmental plan, at [27] - [31]: 27 The site is zoned Residential 2(a) under Hunters Hill Local Environmental Plan No 1 (LEP 1). The site is also located within a Foreshore Scenic Protection Area and a Heritage Conservation Area and is within the vicinity of heritage items at 8, 10, 12, 14 Alfred Street and 93, 96, 97, and 99 Woolwich Road. 28 Clause 18A provides that consent may not be granted for development within a Foreshore Scenic Protection Area unless an assessment has been made of the appearance and visual quality of the development when viewed from the waterway (cl 18A(a)) and the impact of the proposed development towards the waterway from public roads and from public reserves (cl 18A(b)). 29 Clause 19(3) provides that consent shall not be granted on land in the vicinity of an item of the [sic] environmental heritage unless an assessment has been made of the effect of the development on the heritage significance of the item and its setting. Even though there are a number of items of environmental heritage within the vicinity of the site, the council raised no issue with the relationship between the items and the proposed development. 30 Clause 19A(2) provides that consent shall not be granted to a development application within a conservation area unless it has made an assessment of the effect the proposed development would have on the heritage significance of the conservation area. Clause 19A(3) provides that consent cannot be granted unless certain building elements within the subclause are considered. 31 The initial concerns of the council centred on the long sloping roof form on the north western corner of the building that contained the study and the stair to the first floor level. With the amendments proposed by the applicant that reinstated a more traditional pitched roof form for the dwelling and a flat roof over the proposed deck, I am satisfied that the proposed development will sit comfortably with other adjoining and nearby residential development and have little or no effect on the heritage significance of the conservation area pursuant to cl 19A(2). I also satisfied that the proposed development satisfactorily considers the building elements identified in cl 19A(3). (emphasis added) 82The Commissioner then expressed the view that certain of the conditions proposed by the Council were unnecessary because of conditions proposed by the Dives or were more appropriately addressed in the Dives' proposed conditions. In that regard he said: 34 A number of additional conditions were proposed by both the applicant and the respondent, many of which were acceptable and have been included in the conditions of approval. The disputed conditions of the council are: 1, The flat roof over the "balcony" forward of the northern facade of the building shall be removed along with pier posts. 35 This condition is unnecessary given the findings on view sharing and the form and design of the proposed balcony. 3. The "ski slope" roof over the downstairs study and stairs to the second storey being redesigned to have a flat roof section over the front of the study and the front door entrance. This shall be no higher than RL 29.770. 6. The eve/gutter line at the street front of the building shall be at one continuous plane with the same eve overhang as that proposed for the western side. 36 These conditions are more appropriately addressed through other conditions of consent relating to the changed roof form. 83The Commissioner's reference at [36] to "other conditions of consent relating to the changed roof form" appears to be a reference to conditions 1 and 4 proposed by the Dives, which the Commissioner adopted.

MR DUNKERLEY'S EVIDENCE 84Mr V'landys submits that the evidence before me of his architect, Mr Christopher Dunkerley, supports the DCP ground and the Mison ground: that the contentious conditions were "significant amendments" to the development application within cl 10.1 of the DCP, (the primary ground of challenge), or made the development which was granted consent significantly different from the development the subject of the development application within the Mison principle. 85Mr Dunkerley said that he was only engaged to look at the impact on Mr V'landys' views. He expressed his opinion concerning the effect on the views from Mr V'landys' house of conditions 1 to 4 and 6. In doing so, he compared the October plans and the February plans. He summarised his overall conclusion as being that the conditions "do not improve or enhance the impact upon the views from Mr V'landys' property". To my mind, this does not evidence that they significantly amended or altered the development application or the proposed development. 86He seems to have thought that the specific conditions either did not improve Mr V'landys' views, or would constitute minor improvements to views or would constitute minor compromises from one or two locations. More particularly, he noted that the significant difference between the two designs in the October and February plans was the change to the profile in the north-western corner of the building (ie the part nearest to the front balcony and living room on Mr V'landys' property). He observed that the October plans show a large raking roof from the ridge to the garage level whereas the February plans show a stepped vertical façade with a hipped roof over the stairwell. As regards the change introduced by condition 1, he concluded that it "would not improve the view from Mr V'landys' property". He considered that the changes introduced by conditions 2 and 3 opened up the view corridor from Mr V'landys' property through the proposed balcony area slightly more than previously but it would be of little value from the balcony or living area on Mr V'landys' property and would be compromised if the proposed balcony was being used. Condition 4 refers to the slope of the roof above the stairs as it faces the street. Mr Dunkerley thought it would increase the negative impact on the view of the Sydney Harbour Bridge from the upper roof terrace on Mr V'landys' property. He did not think condition 6, which required the deletion of the front and rear gablets from the roof over the second storey, benefited views from Mr V'landys' property other than a slight widening of the view into the sky from Mr V'landys' roof terrace.

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.

ORDERS 115Mr V'landys has been unsuccessful. As costs normally follow the event in proceedings such as these, he should pay the respondents' costs. 116The orders of the Court are as follows: (1)The summons is dismissed. (2)The applicant is to pay the respondents' costs. (3)The exhibits may be returned.

Amendments 17 October 2012 - typographical errors Amended paragraphs: 7, 71, 112 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: 17 October 2012