Zhiva Living Dural Pty Limited v Hornsby Shire Council

This appeal

1. The Company has appealed pursuant to s 56A of the Court Act against the Commissioner's decision. Such appeals are limited to ones on questions of law as can be seen from the terms of the section which reads: 56A Class 1, 2, 3 and 8 proceedings - appeals to the Court against decisions of Commissioners (1) A party to proceedings in Class 1, 2, 3 or 8 of the Court's jurisdiction may appeal to the Court against an order or a decision of the Court on a question of law, being an order or a decision made by a Commissioner or Commissioners. (2) On the hearing of an appeal under subsection (1), the Court shall: (a) remit the matter to the Commissioner or Commissioners for determination by the Commissioner or Commissioners in accordance with the decision of the Court, or (b) make such other order in relation to the appeal as seems fit. (3) Notwithstanding subsection (1), an appeal shall not lie to the Court under that subsection in respect of a question of law that has been referred to, and determined by, a Judge pursuant to section 36.

The hearing process before the Commissioner

1. The hearing before the Commissioner commenced, as is customary in such appeals, with a site inspection starting at 9.30 am on the first day.
2. As part of that site inspection, the Commissioner heard evidence, given informally, from 10 objectors to the proposal who raised a range of merit issues concerning it (the objectors and their concerns were set out in the Commissioner's decision at [12] and [13]).
3. It is unnecessary to provide detail concerning them but it is appropriate to note that the Commissioner, in reaching his conclusion that the proposed development should be refused consent, did so on a precise and narrow basis, later described, which was independent of any of the matters raised by the objectors or by the Council.
4. During the course of the hearing, the Commissioner raised with the parties his concern as to whether the Company's development application satisfied cl 55 of State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 (the SEPP). It will be necessary to return, in a little detail later, to set out the terms of this provision and to explain the framework and operation of the SEPP as engaged for this proposed development.
5. It will also be necessary to set out in detail some elements of the Commissioner's decision and the communications between the Commissioner and the parties during the period after he reserved his decision on 10 May 2019 and his delivery of that decision on 22 May 2019.

The expedition application

1. The appeal against the Commissioner's decision was subject to an unusual expedition application. The expedition application was heard and refused by Robson J on the day following the delivery of the Commissioner's decision. His Honour refused to grant expedition (Zhiva Living Dural Pty Ltd v Hornsby Shire Council (No 2) [2019] NSWLEC 68). His Honour set out, at [1] and [2], the unusual nature of what had been sought in the expedition application: 1 Before the Court this morning is a motion for expedition of an appeal commenced by summons pursuant to s 56A of the Land and Environment Court Act 1979 (NSW) from a judgment handed down by Commissioner Chilcott at 4:15pm yesterday afternoon: Zhiva Living Dural Pty Ltd v Hornsby Shire Council [2019] NSWLEC 1222. The summons and the notice of motion were filed yesterday evening by Zhiva Living Dural Pty Ltd ('applicant'). 2 Somewhat unusually, the applicant seeks that the s 56A appeal be heard at 2:00pm this afternoon before a judge of this Court and, in the event that the appeal against Commissioner Chilcott's decision is upheld, the applicant seeks an order, in the s 56A summons, that the matter be remitted to the Commissioner for further hearing and determination prior to 4:00pm tomorrow, 24 May 2019. The respondent, represented by Mr Ward, neither consents to nor opposes the application for expedition.

The appeal hearing

1. The hearing appeal was subsequently listed before me on 2 October 2019. The Company was represented by Mr Lazarus SC. The Council filed a submitting appearance.

The local planning controls

1. The local planning controls are to be found in the Hornsby Local Environmental Plan 2013 (the HLEP). The site is zoned RU2 Rural Landscape under the HLEP. Development for a seniors living facility is prohibited within this zone.
2. However, across the road forming the site's frontage, the land is zoned B2 Local Centre. This is an urban zoning. This proximity to land which is zoned "urban" is relevant for the purposes of understanding the operation of the SEPP rendering, subject to a current site compatibility certificate, the proposed development on the site as being permissible, despite the fact that it is prohibited in the zone where the site is located.

The relevant provisions of the SEPP

1. Three provisions of the SEPP require consideration in these proceedings. Those provisions are cll 24 and 25, these being the clauses dealing with the site compatibility certificate process, and cl 56, the clause dealing with fire sprinkler systems, this clause providing the basis upon which the Commissioner refused to grant consent to the proposed development.
2. The site compatibility certificate regime establishes a beneficial and facultative process that permits, in certain circumstances covered by the SEPP, seniors living development in zones where they would otherwise not be permissible. The relevant elements of these clauses are in the following terms: 24 Site compatibility certificates required for certain development applications (1) This clause applies to a development application made pursuant to this Chapter in respect of development for the purposes of seniors housing (other than dual occupancy) if - (a) the development is proposed to be carried out on any of the following land to which this Policy applies - (i) land that adjoins land zoned primarily for urban purposes, (ii) …, (iii) …, (b) …. (1A) … (2) A consent authority must not consent to a development application to which this clause applies unless the consent authority is satisfied that the relevant panel has certified in a current site compatibility certificate that, in the relevant panel's opinion - (a) the site of the proposed development is suitable for more intensive development, and (b) development for the purposes of seniors housing of the kind proposed in the development application is compatible with the surrounding environment having regard to (at least) the criteria specified in clause 25 (5) (b). … 25 Application for site compatibility certificate (1) An application for a site compatibility certificate for the purposes of clause 24 may be lodged with the Department - (a) by the owner of the land on which the development is proposed to be carried out, or (b) by any other person, with the consent of the owner of that land. (2) An application - (a) must be - (i) in writing, and (ii) in the form (if any) approved by the Planning Secretary from time to time, and (iii) accompanied by such documents and information as the Planning Secretary may require, and (b) specify, in the manner required by the Planning Secretary, whether any site compatibility certificates have previously been issued in respect of the land (or any part of the land) to which the application relates, and (c) … (2A) … (2B) … (2C) … (2D) … (3) The Planning Secretary must - (a) forward the application to the relevant panel within 35 days after it is lodged if it is reasonably practicable to do so, and (b) … (4) Subject to subclause (5), the relevant panel may determine the application by issuing a certificate or refusing to do so. (5) … (5A) … (6) Without limiting subclause (4) (a), the relevant panel may refuse to issue a certificate if the relevant panel considers that the development is likely to have an adverse effect on the environment. (7) … (8) (Repealed) (9) A certificate remains current for a period of 24 months after the date on which it is issued by the relevant panel. (10) …
3. The third relevant clause of the SEPP, cl 55 dealing with fire sprinkler systems, is engaged because it applies to developments such as that for which consent was sought by the Company's development proposal and because it provided, as earlier noted, the basis upon which the Commissioner dismissed the Company's Class 1 appeal and refused development consent for the proposal. This clause is in the following terms: 55 Residential care facilities for seniors required to have fire sprinkler systems A consent authority must not grant consent to carry out development for the purpose of a residential care facility for seniors unless the proposed development includes a fire sprinkler system.

The grounds of appeal

1. In essence, Mr Lazarus advanced two grounds as demonstrating where the Commissioner had made errors of law in reaching his decision that cl 55 of the SEPP acted as an insurmountable barrier to him approving the proposed development. The first complaint was that an offered condition of consent (later set out) proposed, as a method of addressing the Commissioner's concerns with respect to the provision of fire sprinklers, satisfied cl 55 of the SEPP and that the Commissioner committed an error of law in concluding that it did not.
2. The second ground, as advanced by Mr Lazarus, was one which alleged denial of procedural fairness in a more confined sense than had been included in the Amended Summons.
3. Ground 2, as pleaded in the Amended Summons commencing the appeal (there pleaded as Ground 4), was in the following terms: 4 The Commissioner failed to provide the applicant with procedural fairness in relation to the satisfaction of clause 55, by failing to identify the issue, being an issue not pleaded in the contentions, about which he was concerned after receiving submissions from both the applicant and respondent which confirmed that clause 55 was in fact satisfied and that the proposed development for the purposes of a residential care facility for a seniors did in fact include a fire sprinkler system.
4. However, as advanced by Mr Lazarus (as I understood him), the now more confined Ground 2 was that, whatever the position with respect to the proposed condition, the Commissioner denied the Company procedural fairness by rejecting the proposed condition without affording the Company an opportunity to address the matter further in circumstances where the Commissioner had not given the Company (and the Council) notice that he remained concerned about the efficacy of the proposed (let alone any) condition being capable of satisfying cl 55 of the SEPP.

The Commissioner's decision

1. The Commissioner turned his attention, relevantly, to the preconditions arising from the SEPP at [29] to [43] of his reasons for decision. These paragraphs of the Commissioner's decision deal exclusively with cl 55 of the SEPP and provide the explanation for why the Commissioner formed the view that he was precluded from granting consent to the Company's proposed development. To enable an understanding of what follows, it is convenient to set out this portion of the Commissioner's judgment in full: Does the Applicant's development application satisfy the preconditions of SEPP Seniors? 29 During the proceedings, the Court received submissions, and benefitted from expert evidence, in relation to the Applicant's proposed development, including in relation to its satisfaction of the various preconditions contained in the provisions of SEPP Seniors. 30 However, the Court was not taken to evidence in relation to the basis for the Applicant's development application satisfaction of cl 55 of SEPP Seniors (see above at [20(3)(j)]). 31 Consequently, during the hearing the Court sought advice from the Applicant in relation to the provisions of cl 55 of SEPP Seniors and, more specifically, the Court invited the Applicant to confirm that its development application provided for the inclusion of a fire sprinkler system within its proposed residential care facility. 32 In response, the Applicant proposed that, should the Court be minded to grant consent to its development application, the provisions of cl 55 of SEPP Seniors could be addressed through the inclusion of a condition of consent (proposed condition 29A) that would require the provision of a fire sprinkler system within the proposed residential care facility in fulfilment of the requirements of cl 55 of SEPP Seniors. 33 A proposed condition, drafted by the Applicant for this purpose, was tendered as evidence at the hearing as part of the Applicant's proposed conditions of consent. 34 Following the conclusion of the hearing, the Court sought further submissions from the Applicant, and the Respondent, in relation to this matter. 35 In response to this invitation, the Applicant: (1) confirmed its previous submission that the imposition of a condition of consent, and specifically its proposed condition 29A, was sufficient to satisfy the provisions of cl 55 of SEPP Seniors; (2) further submitted that, should the Court retain any concerns about the implementation and maintenance of the fire sprinklers within the RACF, two additional measures could be implemented: (a) a condition could be imposed on the following terms which would require the registration of a positive covenant on the title of the land to ensure ongoing maintenance of the fire sprinkler system and to provide additional notice of its requirement on property title documents; or alternatively, (b) in addition to the conditions mentioned above at [(1)] and [(a)], the Court could insert, as part of proposed condition 4, concerning amendments of plans, a further draft condition 4(a)(vi), requiring that the approved plans should be amended so as to include the fire sprinkler system notations within them for approval with the construction certificate. 36 The Respondent in its submissions agreed with the Applicant that the inclusion of proposed condition 29A would be sufficient to ensure that the proposed development complied with the provisions of cl 55 of SEPP Seniors. 37 Based on these submissions, I conclude that the Applicant's development application, as amended, and as it comes before me, does not include a fire sprinkler system for the residential care facility component of the proposed development. I base this conclusion on the following considerations: (1) notwithstanding a direct invitation from the Court to confirm where in the evidence the Applicant's development application included details of its proposed fire sprinkler system, the Applicant has not done so; and (2) the Applicant has confirmed in its submissions that its proposed development application would require amendment to include details of the fire sprinkler system for the residential aged care facility. 38 The Court extended to the Parties the opportunity to address it further in relation to their submissions on this point, but that opportunity was not taken up by the Parties. 39 SEPP Seniors cl 55 requires that a consent authority must not grant consent (emphasis added) to carry out development for the purpose of a residential care facility for seniors unless the proposed development includes a fire sprinkler system. 40 Satisfaction of cl 55 of SEPP Seniors is a jurisdictional pre-condition to the grant of consent, and it is the satisfaction of that clause, and its provisions, that enlivens the Court's power to grant consent in this appeal. 41 The provisions of cl 55 cannot be satisfied by the inclusion of one or more conditions upon the grant of consent, as the Court's power to grant consent is only enlivened following (emphasis added) their satisfaction, and prior to the grant of consent. 42 Having considered the submissions of the Parties, I find that the power of the Court to grant consent to the Applicant's development application DA/668/2018, for the demolition of existing structures, earthworks, tree and vegetation removal, and the construction of a seniors housing development, has not been enlivened as the jurisdictional pre-conditions within cl 55 of SEPP Seniors have not been satisfied. 43 I further conclude that, for this reason, the appeal must be dismissed, and further consideration of the contentions in this appeal is otiose.

Introduction

1. As earlier observed, this ground (pressed on behalf of the Company) raises the question of whether or not the Company was denied procedural fairness by the Commissioner in the way he dealt with the question of compliance or otherwise with cl 55 of the SEPP. Although s 38(2) of the Court Act makes it clear that the Commissioner was not bound by the rules of evidence, he remained required to accord the Company procedural fairness concerning any matter that he might raise independently of matters put in contention by the Council.

The hearing and subsequent process concerning cl 55 of the SEPP

1. First, it is to be observed that the question of satisfaction or otherwise of cl 55 of the SEPP was not a matter in contention between the parties.
2. It is also to be observed that the Commissioner was not precluded from considering issues not pressed as contentions put into play by the Council (The Presbyterian Church (New South Wales) Property Trust v Woollahra Municipal Council [2015] NSWLEC 47), provided the parties were given notice of the concern. As discussed below, the Commissioner did this and, as the matter which was of concern was one arising from a mandatory requirement of the relevant planning instrument (the SEPP), it was entirely appropriate that he do so.
3. The first occasion when it was raised during the course of the proceedings before the Commissioner was during the course of closing submissions on behalf of the Company on 10 May 2019. During the course of those submissions, the Commissioner raised the question of compliance with cl 55 of the SEPP. He said (Transcript ,10 May 2019, page 290, lines 26 to 33): COMMISSIONER: before you move off bushfire, Ms Duggan, and I don't know whether we're dealing with fire anywhere else, and it's only a minor point, but I just wanted to close it off since I don't think it had been specifically addressed in the material that is come before me to date, although I'm sure it's in the bundle somewhere as under the SEPP cl 55, "Complying with the … fire sprinkler system". I have confidence that a system would generally be provided by (sic) I don't believe that I have been taken to the inclusion of a fire sprinkler system.
4. Senior Counsel then appearing for the Company said, as recorded in the transcript immediately following the above passage: I can honestly say that I haven't turned my mind to it, but would be happy to accept a condition if it's not in there already requiring the fire sprinkler. COMMISSIONER: you'll have time across lunch in reply to address me on that in our closing reply.
5. Toward the end of submissions in reply on behalf of the Company, Senior Counsel for the Company said (Transcript, 10 May 2019, page 330, lines 44 to 46): Commissioner, you will get another version of the conditions by Monday morning that will update further agreements. It will incorporate the sprinkler condition and incorporate the reference to the amended plans.
6. On 13 May 2019, revised conditions of consent were e-mailed to the Court, with these revised conditions incorporating condition 29A, the condition that had been agreed to by the Company and the Council as being appropriate to be included for the satisfaction of cl 55 of the SEPP. This condition was in the following terms: Fire sprinklers are to be provided for the proposed development of the residential care facility in accordance with the requirements under clause 55 of State Environmental Planning Policy (Housing for Seniors or people with a Disability) 2004.

The Commissioner's request for further information

1. On 17 May 2019, at 1.43 pm, the Commissioner caused an e-mail communication to be sent to the solicitors for the parties to these proceedings concerning the issue of the inclusion of proposed condition 29A in the conditions of consent as an appropriate way to meet the requirements of cl 55 of the SEPP. This e-mail was in the following terms: Dear Parties At the conclusion of the hearing in this matter, and immediately prior to the Commissioner reserving his judgment, the Parties indicated that they remained available to the Court to provide any assistance it might require in relation to the appeal. Commissioner Chilcott would welcome submissions from the Parties in relation to the following matter that has arisen in the Commissioner's consideration of his judgment in this matter. Towards the end of proceedings on Thursday 9 May 2019, the Commissioner recalls seeking the Applicant's assistance in relation to the provisions of cl 55 of SEPP Seniors (to adopt the shorthand term used at times during the hearing) concerning 'Residential care facilities for seniors required to have fire sprinkler systems' and which requires that: 'A consent authority must not grant consent to carry out development for the purpose of a residential care facility for seniors unless the proposed development includes a fire sprinkler system'. The Commissioner sought the assistance of the Applicant to identify where within the Applicant's development application it had confirmed that a fire sprinkler system had been included. The following morning, on Friday 10 May, and in response to the Commissioner's inquiry, the Applicant proposed, should the Court be minded to grant consent, this requirement should be addressed by the inclusion of a condition of consent that it had drafted and which had been included in the Applicant's draft conditions of consent, tendered as evidence at the hearing. The Respondent did not object to this proposal. Commissioner Chilcott would welcome receipt of further submissions in relation to the satisfaction of the provisions of cl 55 by the Applicant's proposed condition, to be received by 3pm on Monday 20 May 2019. Should the Parties wish to address the Commissioner in relation to their written submissions, they should confirm this to the Commissioner also by 3pm on Monday 20 May 2019, and he will have it listed for 9am on Tuesday 21 May 2019. Kind regards
2. On Monday 20 May 2019, at 8.12 am, a further e-mail was sent to the solicitors for the parties. Although not relating to cl 55 of the SEPP, it is appropriate to reproduce the terms of this additional e-mail in full in order to understand the context of that which followed. The supplementary e-mail read: Dear Parties Further to the Commissioner's communication last Friday afternoon, the Commissioner would also welcome the inclusion in the Parties' requested submissions, a consideration of the proposed development's satisfaction of the provisions of cl 43 of SEPP Seniors, concerning transport to local services. The Commissioner thanks the Parties for their further assistance in this matter. Kind regards

The Company's submissions

1. On 20 May 2019, supplementary written submissions for the Company were provided to the Commissioner. Those submissions dealt with both cl 55 and cl 43 of the SEPP. It is only appropriate to reproduce [1] to [9] of these submissions, being the submissions that address cl 55 of the SEPP. These elements of the submissions were in the following terms: 1 Clause 55 of SEPP Seniors provides: 55 Residential care facilities for seniors required to have fire sprinkler systems A consent authority must not grant consent to carry out development for the purpose of a residential care facility for seniors unless the proposed development includes a fire sprinkler system. 2 During the course of the hearing the applicant proposed as part of its application, in response to a query made by Chilcott C, that a condition ought be imposed which required the provision of fire sprinklers within the Residential Aged Care Facility (RACF). 3 The agreed draft conditions of consent contain condition 29A, which the conditions require to be satisfied prior to construction certificate, as follows: 29A Fire Sprinklers Fire sprinklers are to be provided for the proposed development of the Residential Care Facility in accordance with the requirements under clause 55 of State Environmental Planning Policy (House for Seniors or people with a Disability) 2004. 4 Should the application be approved, both the respondent and the applicant support the imposition of that condition. 5 Once imposed, section 4.21(b) of the Environmental Planning and Assessment Act 1979 (the Act) requires that it must be complied with. 6 Should the Court retain any concerns about the implementation and maintenance of the fire sprinklers within the RACF, two additional measures could be implemented. 7 Firstly, a condition could be imposed on the following terms which required the registration of a positive covenant on the title of the land to ensure ongoing maintenance of the Fire Sprinkler system and to provide additional notice of its requirement on property title documents: Fire sprinklers - registration of covenant Prior to the issue of any occupation certificate for the residential aged care facility a positive covenant is to be registered on title, benefitting Hornsby Shire Council on the following terms: The person with the benefit of this consent is to ensure that all times a fire sprinkler system is installed and maintained in the residential aged care facility which satisfies or exceeds the requirements of the National Construction Code and BCA requirements for that class of building. 8 Alternatively or in addition to the above, the court could also insert a requirement within Condition 4 - Amendment of plans which requires the approved plans to be amended so as to include the fire sprinkler notations within them for approval with the construction certificate. This could be implemented by insertion condition 4(a)(vi) as follows: The approved plans are to be amended as follows: 4(a)(vi) The construction certificate plans are to include all details of the fire sprinkler system to be installed within the RACF building (as required by condition 29A) in compliance with the National Construction Code and any BCA requirements. 9 Implementation of any, or all, of the above measures would satisfy the requirement that the proposed development would include a fire sprinkler system within the RACF.
2. As can be seen, these submissions were expressly responsive to the request for further submissions in relation to the satisfaction of the provisions of cl 55 by the terms of the Company's proposed condition.

The Council's submissions

1. Also on 20 May 2019, written submissions were provided on behalf of the Council by its solicitors. These written submissions addressed both cl 43 and cl 55 of the SEPP. These written submissions addressed, in [1] to [4], the Commissioner's request seeking submissions as to how the agreed proposed condition satisfied cl 55 of the SEPP. These paragraphs of the Council's submissions were in the following terms: 1 As noted in the e-mail from LEC Commissioner Support dated 17 May 2019, consent cannot be granted to carry out development for the purpose of a residential care facility for seniors unless the proposed development includes a fire sprinkler system. 2 As also noted, on Friday 10 May 2019 the parties reached agreement that satisfaction of clause 55 of SEPP Seniors could be achieved by the imposition of an agreed condition of consent if the Court is minded to approve the application. Condition 29A with the agreed set of without prejudice conditions e-mailed to the Court on 14 May 2019 contains the agreed wording. 3 A condition of development consent may be imposed if it modifies details of the development the subject of the development application (section 4.178(1)(g) of the Environmental Planning and Assessment Act 1979). In this case any lack of detail in the applicant's application documents (Exhibit A) relating to fire sprinkler systems is remedied by the modification to details of the proposed development that is provided by way of without prejudice condition 29A. 4 In the context of the development as a whole, the proposed condition 29A merely modifies details of the proposed development rather than giving rise to some more substantive change to the development. Accordingly, the respondent agrees that the inclusion of condition 29A is sufficient to ensure that the proposal complies with clause 55 of SEPP Seniors.

Consideration of Ground 2

1. As can be seen from the conclusion of the request sent to the parties on 17 May 2019 concerning cl 55 of the SEPP, what was requested by the Commissioner was: … receipt of further submissions in relation to the satisfaction of the provisions of clause 55 by the applicant's proposed condition …
2. Although the parties were also offered the opportunity to address the Commissioner further, in addition to any written submissions, as the Commissioner indicated in his decision at [38] earlier reproduced, the parties did not accept this invitation.
3. However, the quite confined complaint that is now made on behalf of the Company is that the request by the Commissioner (arising in the circumstances of the way the matter came up during the course of the hearing, as earlier set out from the transcript) was to be regarded solely as an invitation as to how the specific proposed condition 29A satisfied the requirements mandated by cl 55 of the SEPP, not the question of how any condition (however worded) could be capable of satisfying that requirement.
4. Although a fine point of distinction, nonetheless, in the circumstances here involved, this point is a valid one.
5. At no time after the Commissioner's raising of cl 55, and potential satisfaction of it by the proffering to him of an agreed condition (settled by the lawyers for the Company and for the Council), did the Commissioner expressly raise with the parties the question of whether or not any condition at all (whatever its wording) was capable of satisfying cl 55 of the SEPP.
6. In this context, although not put to the Commissioner at the time, but raised with me during the course of this appeal, a similar position had arisen before the Commissioner in a matter determined by him in June 2018 (Dukor 24 Pty Ltd v Northern Beaches Council [2018] NSWLEC 1315) (Dukor). In Dukor, the Commissioner upheld the appeal and granted development consent.
7. In the Commissioner's decision in the Dukor proceedings, at [18] and [19], the Commissioner set out the position of the parties to those proceedings concerning cl 55 of the SEPP in the following terms: 18 The Applicant submitted, that cl 55 of the SEPP, which requires that the proposed development include fire sprinkler systems, was the only provision of relevance in the appeal. This clause provides: A consent authority must not grant consent to carry out development for the purpose of a residential care facility for seniors unless the proposed development includes a fire sprinkler system. 19 The Respondent said that a fire sprinkler system would be required as a condition of development consent should the proposed development be approved.
8. In Dukor, at 76(a)(ii), the Commissioner indicated that that approach satisfied the terms of cl 55 of the SEPP.
9. Indeed, the conditions of development consent for that proposed development (as annexed to the Commissioner's decision) record condition (11) - a condition to be satisfied prior to the issue of the construction certificate - as being a condition in the following terms: 11 Fire Sprinkler System Fire Sprinkler system must in installed for the development in accordance with the requirement of Clause 55 of SEPP (Housing for seniors or People with a Disability) 2004. Details demonstrating compliance are to be submitted to the Certifying Authority prior to the issue of the Construction Certificate. Reason: compliance with SEPP (HSPD) 2004
10. The clear implication is that, had the Commissioner raised the broader point of the capability of any condition to satisfy cl 55 of the SEPP, the legal representatives of the Company would have found (and he would have been reminded of) his own earlier decision in Dukor to accept such a condition (in near identical wording) as a complete answer to this concern. Indeed, the proffered condition 29A in these proceedings was also proposed to be one requiring satisfaction prior to the issue of the construction certificate.
11. It is clear that the Commissioner would have been invited to adopt the same approach concerning the Company's proposed development.

Conclusion on Ground 2

1. The Commissioner did deny the Company procedural fairness in the more confined fashion advanced by Mr Lazarus, as earlier explained.
2. The question here is not whether the Commissioner was correct in his decision that it was not appropriate to address and resolve cl 55 of the SEPP by way of a condition (as he had done a year earlier in Dukor) but that he had denied the company the opportunity to persuade him that such an approach was a permissible one.
3. As the Commissioner's conclusion that cl 55 of the SEPP was incapable of satisfaction by condition of development consent was the sole basis for his dismissal of the Company's appeal, it is clear that this appeal against the Commissioner's decision must be upheld.

Ground 1

1. As a consequence of the success of the Company on Ground 2 with that success necessitating the upholding of the appeal, it is unnecessary to address Ground 1.

The powers of the Court and disposing of this appeal

1. The question also arises for consideration as to whether, if the matter was to be remitted to the Commissioner, the Commissioner could determine to issue a fresh site compatibility certificate as part of an approval for the proposed development. A fresh site compatibility certificate would be a prerequisite for approval of the Company's application.
2. Such a potential power is said to arise pursuant to s 39(2) of the Land and Environment Court Act 1979 (the Court Act). The question of whether the Commissioner had power to issue a further site compatibility certificate utilising s 39(2) of the Court Act was canvassed by Senior Counsel for both parties during the course of closing submissions before the Commissioner.
3. This provision of the Court Act is in the following terms: 39 Powers of Court on appeals (1) … (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.
4. I am satisfied that such a power is not available to the Commissioner. This position arises from consideration of the power vested by s 39(2) of the Court Act and the requirements of cll 3(1) and 25(4) of the SEPP.
5. It is clear from the terms of the provision of the Court Act set out above that the power given to the Commissioner is to exercise the functions and discretions of the body whose decision is the subject of the appeal. This body is, relevantly in this case, Hornsby Shire Council. It is clear that the power to grant a site compatibility certificate is a power exercised by the relevant panel as described in cl 25(4) of the SEPP. The term "relevant panel" is defined in cl 3(1) is defined as being: "Relevant panel", in relation to a site compatibility certificate (or an application for a certificate), means the Sydney District or Regional Planning Panel constituted for the part of the State in which the land concerned is located.
6. It is also clear, when hearing and determining a Class 1 appeal, as is here the case, that the Commissioner is not exercising any of the discretions or functions of the "relevant panel" under the SEPP and therefore would have no power to determine to issue a fresh site compatibility certificate.
7. Although the determination of this development application, at first instance, was by decision of the body that could also constitute the "relevant panel" for the purposes of cl 25(4) of the SEPP, that panel was exercising functions as a decision-maker on behalf of the Council and not exercising the statutory function bestowed on it by the relevant provision of the SEPP.
8. Although, perhaps, to be regarded as a slightly schizoid role, the fact that the same body of people can exercise different statutory functions does not mean that, for the purposes of interpreting the relevant instruments that give them the power in each instance, the body is to be regarded as a body identified in a particular fashion for all purposes across all potential functions exercised by it.
9. When the "relevant panel" exercises its functions under the SEPP, it is not exercising a "function on behalf of the person or body, whose decision is the subject of the appeal", it is exercising a separate and unrelated function - one that does not arise in the context of s 39(2) of the Court Act.
10. The Panel has functions set out in s 2.15 of the EP&A Act, a provision in the following terms: 2.15 Functions of Sydney district and regional planning panels (cf previous s 23G) A Sydney district or regional planning panel has the following functions: (a) the functions of the consent authority under Part 4 for regionally significant development that are (subject to this Act) conferred on it under this Act, (b) any functions under this Act of a council within its area that are conferred on it under section 9.6, (c) to advise the Minister or the Planning Secretary as to planning or development matters relating to the part of the State for which it is constituted (or any related matters) if requested to do so by the Minister or the Planning Secretary, (d) any other function conferred or imposed on it under this or any other Act. Note. Under section 9.7, a panel (or the Independent Planning Commission if acting in place of the panel) is, in the exercise of a function referred to in paragraph (b), taken to be the council and is to exercise the function to the exclusion of the council.
11. It is clear that, for the purposes of considering the Company's development application, the function exercised by the Panel was that given pursuant to s 2.15(b), whilst the function of determining whether or not a site compatibility certificate should be issued for a development such as that proposed by the Company is a function to be exercised pursuant to s 2.15(d). These are separate and distinct functions which, in this context, lead to the conclusion that the s 2.15(b) function is, obviously, amenable to be exercised by the Court pursuant to s 39(2) of the Court Act, whilst that which is exercised by a Panel pursuant to s 2.15(d) is not so amenable.
12. It follows that the Court, in an appeal such as this cannot exercise the power to issue a fresh site compatibility certificate.

The lack of utility of a remitter

1. Although I have found that the Company succeeds on one of the two grounds pressed (this being sufficient and it therefore being unnecessary to determine the second basis of appeal), I must next consider whether there is any utility in remitting the matter to the Commissioner, given that the site compatibility certificate has now expired.
2. Although an application for a further site compatibility certificate has been made, at the time of the hearing of this appeal it has not been significantly progressed. There is, therefore, no valid application capable of being remitted to the Commissioner to which, if he was otherwise satisfied on all merit matters, the Commissioner could grant development consent.
3. As the consequence of the absence of a current site compatibility certificate, and the inability of the Court, for the reasons earlier explained, to grant such a site compatibility certificate, the development is: 1. Prohibited within the zone within which the proposed development would be located; and 2. Does not have this prohibition to consent set aside by the potentially available beneficial and facultative provisions of the SEPP.
4. The further consequence of this is that there is no utility in remitting the matter to the Commissioner as there would be no basis upon which the Commissioner could grant development consent to the proposed development, even if he was otherwise satisfied that all relevant merit matters had been satisfactorily resolved.
5. I have earlier set out the terms of s 56A of the Court Act, this being the provision which provides the basis permitting this appeal to be made. It is to be observed that the section also provides, in s 56A(2)(b), for me to be able to dispose of the appeal in circumstances such as these where the appeal is successful but where the outcome, overall, of the proceedings is readily able to be determined. That is here the position.
6. As the final consequence of that which I have summarised above, although the appeal is to be upheld for the reasons earlier explained, the appropriate course for me to follow is to exercise the power available to me pursuant to s 56A(2)(b) of the Court Act and refuse to grant consent to the development application.

Orders

1. It follows from the foregoing, that the orders of the Court are: 1. The appeal is upheld; 2. Pursuant to s 56A(2)(b) of the Land and Environment Court Act 1979, Development Application DA/668/2018 for a seniors living development at 3 Quarry Road and 4 Vineys Road, Dural is determined by the refusal of development consent; 3. No order as to costs; and 4. The exhibits are returned.

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