Vodafone Hutchison Australia Pty Ltd v North Sydney Council

The application

1. The applicant seeks to modify DA 142/16 by deleting Condition A3 to allow for the illumination of the Vodafone sign on the western elevation of the building on the site.

Hearing

1. The hearing commenced with a site view on the morning of 30 January 2019. The parties met west of the site, where Berry Street intersects with Edward Street. This is the area where the lower density residential area nearest the site is located. Apart from the Court gaining an appreciation of the sign (in daylight) from walking Edward Street, and some nearby streets, there was an opportunity to hear a submission, and view the sign, from the home of one objector, a resident of Riley Street a little further to the west. After the view the hearing commenced in Court. In addition, and given the proposal was concerned with night-time lighting of the sign, the view reconvened that evening at about 9pm. With the agreement of the parties, arrangements were made to illuminate the sign in question. The Court then had the opportunity to view the illuminated sign in its context, both in operation and not in operation, from different positions nearby including Edward Street and Priory Road, and from the objector's rear yard.

Issues

1. The primary issues for consideration in this matter can be summarised as follows: 1. Whether the development to which the consent as modified relates is substantially the same as the development the subject of the consent originally granted. 2. The merits of the proposed modification (ie illumination of the western roof sign).
2. It is relevant to note here, that the first of the issues nominated at [8] is a threshold question. That is to say if the Court is not satisfied in regard to it (ie the question of "substantially the same development"), then the power to modify the consent is not enlivened, regardless of whether the application might be worthy of approval on the merits (Woollahra Municipal Council v D'Albora Marinas Pty Ltd (1992) 75 LGRA 46). In this instance, the Court is not so satisfied and as such no consideration of the merits of the modification application (under s 4.55(3) of the EPA Act) is necessary.

Legislative and legal framework

1. Section 4.55(2)(a) of the EPA Act is the source of the modification power of pertinence here and relevantly provides that: (2) Other modifications A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the consent authority and subject to and in accordance with the regulations, modify the consent if: (a) it is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted and before that consent as originally granted was modified (if at all)
2. The other prerequisites under s 4.55(2) are understood not to be in dispute.
3. The parties also took me to Agricultural Equity Investments Pty Ltd v Westlime Pty Ltd (No 3) [2015] NSWLEC 75 (Agricultural Equity), where Pepper J at [173], helpfully outlined legal principles governing the exercise of the power contained in s 4.55(2) (which provides the exact same provisions as s 96(2) of the then EPA Act which was the direct point of attention in Agricultural Equity). I reproduce the principles as follows: "(1) …the power contained in the provision is to "modify the consent". Originally the power was restricted to modifying the details of the consent but the power was enlarged in 1985 (North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468 at 475 and Scrap Realty Pty Ltd v Botany Bay City Council [2008] NSWLEC 333; (2008) 166 LGERA 342 at [13]). Parliament has therefore "chosen to facilitate the modification of consents, conscious that such modifications may involve beneficial cost savings and/or improvements to amenity" (Michael Standley at 440); (2) the modification power is beneficial and facultative (Michael Standley at 440); (3) the condition precedent to the exercise of the power to modify consents is directed to "the development", making the comparison between the development as modified and the development as originally consented to (Scrap Reality at [16]); (4) the applicant for the modification bears the onus of showing that the modified development is substantially the same as the original development (Vacik Pty Ltd v Penrith City Council [1992] NSWLEC 8); (5) the term "substantially" means "essentially or materially having the same essence" (Vacik endorsed in Michael Standley at 440 and Moto Projects (No 2) Pty Ltd v North Sydney Council [1999] NSWLEC 280; (1999) 106 LGERA 298 at [30]); (6) the formation of the requisite mental state by the consent authority will involve questions of fact and degree which will reasonably admit of different conclusions (Scrap Realty at [19]); (7) the term "modify" means "to alter without radical transformation" (Sydney City Council v Ilenace Pty Ltd [1984] 3 NSWLR 414 at 42, Michael Standley at 474, Scrap Realty at [13] and Moto Projects at [27]); (8) in approaching the comparison exercise "one should not fall into the trap" of stating that because the development was for a certain use and that as amended it will be for precisely the same use, it is substantially the same development. But the use of land will be relevant to the assessment made under s 96(2)(a) (Vacik); (9) the comparative task involves more than a comparison of the physical features or components of the development as currently approved and modified. The comparison should involve a qualitative and quantitative appreciation of the developments in their "proper contexts (including the circumstances in which the development consent was granted)" (Moto Projects at [56]); and (10) a numeric or quantitative evaluation of the modification when compared to the original consent absent any qualitative assessment will be "legally flawed" (Moto Projects at [52])."
4. Each of the parties made written as well as oral submissions on the "substantially the same development" question and referenced additional authorities in support of these submissions. Council's written submission was filed on 23 January 2019. The applicant's written submission was filed on 25 January 2019.

Council's submissions

1. Council posited in its written submission that "characterisation of use forms part of determining the development to which consent relates" and that conditions of consent were pertinent to the characterisation of the use. Council referenced AMT Planning Consultants Pty Ltd t/as Coastplan Consulting v Central Coast Council [2018] NSWCA 289 (Coastplan v Central Coast), while noting that this case was here concerned with existing use rights. Sackville AJA's portion of the judgment was quoted, in part, as follows: "[97] …The conditions attached to development consent will often be significant when characterising the use of land for which development consent was granted. … [106] As the authorities recognise, the characterisation of the use for which development consent was granted generally will involve matters of fact and degree. Some conditions of development consent will have very little, if any, bearing on the process of characterisation. … However, the conditions imposed on the 1980 and 1983 Consents fall into a different category. The wording of the conditions is not identical, but in substance both conditions expressly prohibited the use of the land as a caravan park for long-term occupation. That use would have been authorised by the grant of development consent in each case had the condition not been imposed."
2. For Council, the "proper context" (pertinent to Moto Projects at [56]) for the comparison of the qualitative impacts of the modification is to acknowledge that the original consent "expressly excluded what is effectively the current proposal", with "non illumination of the of the western facing roof sign" seen as "fundamental to the operation of the approved development".
3. The intent was in regard to managing the interface of the North Sydney CBD and the "western residential areas", which were said to include the Edward Street, Priory Road and Bay Road Conservation Areas. That illumination of the sign at night having "potential for more heightened impact on character", according to Mr Merlino's oral submission.
4. So fundamental was non-illumination to the operation of the consent "that an express condition (Condition A3) was imposed to ensure the operation of the consent in that particular way and that any change or modification to the particular aspect was required to be approved by way of separate development consent": "By imposition of condition A3 into the consent the Council expressly stated that illumination was not and could not be part of the development consent. It is submitted that condition A3 operates in the way indicated by the Court of Appeal in Coastplan v Central Coast to define and characterise what has been approved by the Council in the original consent."
5. As such, a non-illuminated west facing sign was an "essential and material element of the original approval" (pertinent to Vacik as endorsed in Michael Standley at 440).

Applicant's submissions

1. The applicant provided a working through of the legal principles collected in Agricultural Equity, generally, while applying them to the case at hand. Below I note references and arguments I saw as particularly pertinent.
2. The findings in Michael Standley, which confirm an earlier decision that the power conferred under s 4.55(2) is to be interpreted as beneficial and facultative, were emphasised; with Ms Duggan SC positing in oral submissions that: "the importance of (that interpretation, is the power is) not to be construed narrowly but broadly having regard to that objective".
3. When considering the term "substantially" and its meaning as interpreted under the authorities; Ms Duggan notes it evoking a "broader" consideration, and, mindful of the beneficial and facultative power, whether the development as modified is essentially or materially having the same essence.
4. In regard to Ilenace and the point that to "modify means to alter without radical transformation", the applicant argued in oral submissions that "what we're seeing is changes at the higher end of the scale of change, because it's not radical, but it can be everything up to radical".
5. I understood that the major part of the applicant's submission was in regard to the comparative exercise (and considering the findings of Vacik and then Moto Projects at [56] and [52]), with the applicant suggesting in its written submission that the "focal point" for determination of whether the modification power is enlivened "is an assessment of the impacts of the development as modified, as compared to the impacts as originally approved". It is noted that quantitatively there is no change to the number of signs: "What we say is that quantitatively in this exercise whilst you've got to take it into account, it's not the significant or the weighty feature in the determination of this issue, because we asked for six signs, we got six signs, we're keeping six signs. We asked for six illumination, we got five, the change numerically is minor."
6. The submission in regard to the modification being qualitatively the same relied on expert evidence and might be summarised as follows: 1. Illuminated signs from the Vodafone building and other buildings will be visible from residential areas, including to the west, even if the western sign is not illuminated. 2. The height of the western sign is such that it is not in an ordinary cone of view for residential areas to the west. 3. Illumination of the western sign would not create an appreciable change to the amenity of its immediate CBD locality, nor the surrounding residential areas, nor that in nearby public spaces.
7. On a separate point, Mison and ors v Randwick Municipal Council (1991) 23 NSWLR 734 (Mison) was referenced in the applicant's written submission as establishing the principle that "the imposition of conditions must not result in a consent which is significantly different from that which was applied for, otherwise the purported consent is not a consent to the development application". Quoting from the applicant's written submission: "Specifically, Priestley JA stated that a condition must not have the effect of 'significantly altering the development in respect of which the application is made': Mison at 737."
8. The applicant's written submission concluded on this point that: "Accordingly, it must be accepted that the imposition of a condition prohibiting the illumination of the western sign did not result in a significantly altered development. As a matter of logic it must follow that the removal of such a condition similarly cannot result in a significantly altered development."
9. The applicant also countered the submissions of the Council. It was submitted that on the question of whether Condition A3 was a "particular feature" of the proposal which was "important, material or essential", as per Moto Projects, and that the Council had so found in its determination of the original application, such a finding would not be relevant: "The reliance by the Council on the opinions expressed in the officer's report is not proof of the facts asserted in that report."
10. And further, in the applicant's oral submissions, that: "The council then in relation to the issue of substantially the same, seems to say if the council had a good reason to impose it, you can't unimpose it."
11. The applicant's submission was that the Court "must make its own assessment based upon the evidence before it at the time of the hearing".

Findings on jurisdiction

1. With the applicant bearing the onus of establishing the case, first I consider briefly what I am calling the Mison argument (immediately above). Second I consider the primary argument which is that around the comparative task.

Mison argument

1. The applicant argued that due to a logic of statutory construction, reliant on Mison, the removal of the condition could not result in a significantly altered development.
2. However, in Addenbrooke Pty Ltd v Woollahra Municipal Council (No 2) [2009] NSWLEC 134, Stein J noted that "[t]here has been much statutory water under the bridge since Mison was decided" (at [97]). His Honour references the inclusion of additional provisions in the EPA Act including, among others, the provisions now represented at s 4.16(4) of this Act (formerly s 80(4)), which provides as follows: (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.
3. His Honour finds that (at [100]): "The addition since Mison of [now s 4.16(4)] is a qualification to the general principle that a consent must be a consent to the development application because it provides that a consent may be granted except, or for, a specified part or aspect of that development."
4. Under s 4.16(4) of the EPA Act, a consent authority would seem to be quite entitled to issue a consent, but in so doing alter the development in respect of which the application is made, by excluding out a significant aspect of the original application by way of a consent condition. This is the path followed by Council in the inclusion of Condition A3 in the subject consent. In turn, it does not follow that "the removal of (Condition A3) cannot result in a significantly altered development". This argument by the applicant does not, of itself, bring me the required state of satisfaction that the modified development is substantially the same as the original development.

Comparative task argument

1. It seems to me a central feature of the applicant's submission was to move through the expert evidence to argue that in terms of effects in the local residential areas and the CBD itself, and in recognition of the existing night lighting both from building signage and street lighting, there would be hardly any noticeable or material change as a consequence of the modification. The argument includes the point that there is already some signage approved in the consent, and as such part of the development, which is or would be visible from the residential areas to the west.
2. The applicant, in part only, argued that the proposal does not involve a radical transformation. Scrap Metal usefully distinguishes Agricultural Equity's legal principles at [173] at subparagraph (5) from that at (7). I quote, relevantly at [13]-[15], as follows: "13. The power under [now s 4.55], whether in (1), (1A) or (2), is simply one to "modify the consent". … The concept of modification involves "alteration without radical transformation": see Sydney City Council v Ilenace Pty Ltd [1984] 3 NSWLR 414 at 421; North Sydney Council v Michael Standley Pty Ltd (1998) 43 NSWLR 468 at 474. The object of the modification is the consent. 14. Hence, the power of a consent authority to "modify" a consent is a power to alter without radical transformation the consent. 15. Exercise of the power to modify a consent is made conditional, in the case of modifications under [now s 4.55(2)], on the consent authority forming an opinion of satisfaction that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted …"
3. That is to say, the power under s 4.55(2) of the EPA Act does not resolve on the question of whether or not the development involves radical transformation. That is an initial threshold, applying to all of s 4.55. In regard to the "conditional" aspect (Scrap Metal at [15]), concerning comparisons and the question of "substantially the same development", I rely on Vacik endorsed in other notable cases so referenced (ibid), which provides that the term "substantially" means "essentially or materially having the same essence".
4. However, I also have regard to Moto Projects in regard to its description of what might be involved in this comparative task: "The comparative task does not merely involve a comparison of the physical features or components of the development as currently approved and modified where that comparative exercise is undertaken in some type of sterile vacuum. Rather, the comparison involves an appreciation, qualitative, as well as quantitative, of the developments being compared in their proper contexts (including the circumstances in which the development consent was granted)"
5. It is not my point that the applicant's arguments presented a physical comparison as if in a "sterile vacuum". However, for me it gives insufficient regard to the wider context for the consent and the inclusion of Condition A3 as an authorisation of what was and was not approved as the development.
6. The development is, currently, one which adopts a particular standpoint in regard to tower signage lighting to the west. The position is to not allow signage lighting on the western façade which faces directly towards the nearest lower density residential areas, which happen to be conservation areas.
7. I acknowledge Ms Duggan's point that signage lighting on the northern and southern facades at the roof level of the Vodafone tower is allowed with the consent and is, in fact, visible from the residential areas to the west. Both parties acknowledged this part of the consent recognises there are drivers in support of night time CBD commercial lighting of this kind, including the "global city" ambitions involving North Sydney referenced in Exhibit 3 (Joint Expert Town Planners' Report). However, in my view, the fact that some of the existing (approved) signage lighting (on the Vodafone building) can be viewed from the western residential areas is an example of how conflicting objectives can tend to play out in the development planning and assessment process. That is, there are benefits in CBD planning terms from this form of night lighting, but there are also some consequences for the nearby residential areas.
8. I do not need to hold the view that the lighting of the western sign, directly facing the residential areas, is inappropriate in this balancing act. But, to support the application, I do need to find that the approved development is materially and essentially the same with the lighting of this western sign.
9. The applicant's case relies on "an assessment of the impacts of the development as modified, as compared to the impacts as originally approved" (my emphasis). While it may often assist, I do not believe that the comparative task necessarily requires a detailed assessment of impacts, or that the determination turns on the extent of the impacts. Moto Projects is useful here in its consideration of the impact of the relevant modification. In that case, there was uncontested expert evidence that the physical change (which in this case involved access arrangements to a club) would "not have an unacceptable effect" (I believe the term "effect" in Moto Projects is interchangeable with the term "impact" used by Ms Duggan). Notwithstanding this expert opinion, the Council argued, based on the fact of the numerical evidence contained in the expert report, that there would be an adverse effect. What is important to me, here, is that, after considerable attention to this question of impacts or effects, in the judgement, Bignold J's conclusions on this point (at [57]-[60]) which immediately followed, directly disregarded the question of the extent of impact. Or perhaps better put, it was determined that essence and materiality (with Bignold J adding the term "importance") could be distinguished from the particulars of the impact.
10. I wish to note here that I accept the dimension of Ms Duggan's argument which was that it was immaterial what level of "importance" the Council may have put to the imposition of Condition A3. It is entirely a question for the Court now.
11. I am mindful of the power to modify as facultative and beneficial. But nonetheless I believe it is without doubt that the imposition of Condition A3 is an important physical element of the approved development. There is an objective, or planning purpose, behind the imposition of the condition. It is concerned with cushioning the effects of night lighting of signage in the North Sydney CBD in the residential areas to the west. Without getting to the merits, it is also obvious from the night-time view, that there would be some physical effect, rather than virtually none at all, as a consequence of the removal of Condition A3 and illumination of the western facing roof sign.
12. As put by Council, the "non illumination" of the western facing roof sign is "fundamental to the operation of the approved development". If Condition A3 were to be removed from the consent, the development is not essentially or materially the same, nor does it have the same essence.
13. The evidence and submissions have not satisfied me that the development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted. As this threshold has not been reached the power to modify the consent is not enlivened and the Court is precluded from approving this application. The merits of the case need not be considered.

Orders

1. The Court orders that: 1. The appeal is dismissed. 2. The exhibits are returned except for Exhibits A and 1.

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: 05 March 2019