Land and Environment Court New South Wales Medium Neutral Citation: Tasman Property Holdings Pty Ltd v Canterbury-Bankstown Council [2020] NSWLEC 59 Hearing dates: 13 March 2020 Date of orders: 25 May 2020 Decision date: 25 May 2020 Jurisdiction: Class 1 Before: Pain J Decision: (1) The appeal pursuant to s 56A of the Land and Environment Court Act 1979 dated 4 July 2019 is dismissed. (2) The Appellant is to pay the Council's costs of this appeal. (3) The exhibits are returned. Catchwords: APPEAL – appeal on questions of law from decision of Commissioner dismissing appeal of refusal of modification application of court approved development consent – no vitiating material error in approach to precondition that modification must be substantially the same as original development – no error of law demonstrated by reference to case law Legislation Cited: Canterbury Local Environmental Plan 2012 cl 4.6 Environmental Planning and Assessment Act 1979 (NSW) ss 3.31, 4.5, 4.55, 4.56 Land and Environment Court Act 1979 (NSW) ss 34, 56A Local Government Act 1993 (NSW) Land and Environment Court Rules 2007 r 3.7 Cases Cited: Ahmad Corp Pty Ltd v Fairfield City Council [2018] NSWLEC 1526 Arrage v Inner West Council [2019] NSWLEC 85 Auburn Municipal v Szabo (1971) 67 LGRA 427 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; [1990] HCA 33 House of Peace & Anor v Bankstown City Council (2000) 48 NSWLR 498; [2000] NSWCA 44 House v Defence Force Retirement and Death Benefits Authority (2011) 193 FCR 112; [2011] FCAFC 72 Hoy v Coffs Harbour City Council [2015] NSWLEC 128 Innerwest 888 Pty Ltd v Canterbury Bankstown Council [2017] NSWLEC 1241 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40 Moto Projects (No 2) Pty Ltd v North Sydney Council (1999) 106 LGERA 298; [1999] NSWLEC 280 Ryde Municipal Council v The Royal Ryde Homes (1970) 19 LGRA 321 Tasman Property Holdings Pty Ltd v Canterbury-Bankstown Council [2019] NSWLEC 1310 Tuite v Wingecarribee Shire Council (No 2) [2008] NSWLEC 321 Texts Cited: Mark Aronson, Matthew Groves and Greg Weeks, Judicial Review of Administrative Action and Government Liability (6th ed, 2017, Thomson Reuters) Category: Principal judgment Parties: Tasman Property Holdings Pty Ltd (Appellant) Canterbury-Bankstown Council (Respondent) Representation: COUNSEL: R O'Gorman-Hughes (Appellant) S Nash (Respondent) SOLICITORS: Mills Oakley (Appellant) Marsdens (Respondent) File Number(s): 19/274450 Decision under appeal Court or tribunal: Land and Environment Court of New South Wales Jurisdiction: Class 1 Citation: [2019] NSWLEC 1310 Date of Decision: 4 July 2019 Before: Smithson C File Number(s): 18/242866 Judgment 1. The Appellant appeals pursuant to s 56A of the Land and Environment Court Act 1979 (LEC Act) the decision of the Commissioner in Tasman Property Holdings Pty Ltd v Canterbury-Bankstown Council [2019] NSWLEC 1310. The Commissioner dismissed an appeal of the Council's refusal of an application to modify a development consent granted by the Court following a successful s 34 conference. A ground of appeal under s 56A must be in relation to a question of law. 2. The amended summons dated 31 October 2019 seeks an order that the appeal be upheld and the matter be remitted to a commissioner other than the presiding Commissioner for determination according to law. The four grounds of appeal are: 1 The Commissioner erred in law by misdirecting herself in determining whether the proposed development was substantially the same development as the approved development by reference to the circumstances in which the original consent was granted. 2 The Commissioner erred in law by misdirecting herself in determining whether the proposed development was substantially the same development as the approved development by reference to whether the approved consent was only supported by the Council because the height would not be breached; That the s. 34 agreement would not otherwise have been entered into; And that the Court would not have issued the consent in accordance with the agreement. 3 The Commissioner erred in law by misconstruing s. 4.56(1A) [s 4.55(3)] of the Environmental Planning and Assessment Act. 4 The Commissioner erred in law by finding that the applicant's submission that increasing the height as proposed by only 1% of the approved overall height was a minor increase was legally flawed, and could not be relied upon to support the finding that the proposed modification was substantially the same. 1. The proposed modification is of a five-storey mixed use development on the southern side of Canterbury Road, Punchbowl, by the addition of a sixth storey with a further 12 apartments. The modification adds an additional 906.5 square metres of gross floor area and would increase the building height from 18 metres to 24.16 metres. Construction of an additional level of basement parking to accommodate 12 additional car parking spaces is also sought. 2. I outlined the principles to be applied in determining a s 56A appeal in Hoy v Coffs Harbour City Council [2015] NSWLEC 128 (Hoy) at [7]-[11] and it is useful to set these out as they are applicable to this appeal: 7 It is important to state at the outset the principles which apply in appeals under s 56A of the Court Act in matters of this kind. ...An appeal must identify a question of law explicitly or implicitly decided at first instance: Warkworth Mining Ltd v Bulga Mulbrodale Progress Association Inc [2014] NSWCA 105; (2014) 86 NSWLR 527 at [4]. That question must also be sufficiently material that a wrong answer vitiates the decision: Sydney Water Corporation v Caruso [2009] NSWCA 391; (2009) 170 LGERA 298 at [29], [133]-[136] and [191]. The question must also arise from a contest or dispute between the parties: Edyp v Brazbuild Pty Ltd [2011] NSWCA 218 at [147], [160] per Basten JA. The merits of a commissioner's decision cannot be the subject of a s 56A appeal. 8 An appeal under s 56A is "on a question of law" not limited, however, to "an error of law": ISPT Pty Ltd v Valuer General [2009] NSWCA 31 (2009) 165 LGERA 25 at [3] per Allsop P. In the absence of any statutory indication of the weight to be given to various considerations, an allegation that insufficient weight was given to particular evidence is generally insufficient as a ground of appeal: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at 41, Terrace Tower Holdings Pty Ltd v Sutherland Shire Council [2003] NSWCA 289; (2003) 129 LGERA 195 at [57], Hoskins v Waverley Council [1999] NSWLEC 236 at [11]-[12]. 9 A commissioner or judge of the Court is required to address relevant material issues by exposing his or her reasoning: Segal v Waverley Council [2005] NSWCA 310; (2005) 64 NSWLR 177 at [43] per Tobias JA, Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 259 per Kirby P, at 279 per McHugh JA. The Court at first instance is not required to "deal with every argument raised and every possibility that could be adverted to": Comcare v Forbutt [2000] FCA 837 at [58] per Heerey J cited by Tobias JA in Segal at [71]. 10 The judgment should be read on the basis that the Commissioner and the parties were present and understood the issues presented by them: see by analogy Southon & Ors v Gordon Plath on behalf of the Department of Environment and Climate Change [2010] NSWCCA 292; (2010) 181 LGERA 352 at [79]. 11 An approach to finding error that is nitpicking with an eye to identifying error is not permissible, as identified in numerous authorities commencing from Brimbella Pty Ltd v Mosman Municipal Council (1985) 79 LGERA 367 at 368. Very importantly, a judgment must be considered as a whole, not selecting parts of the judgment and reading them out of context: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 291, O' Donnell v Sutherland Shire Council [2011] NSWLEC 184 at [23]. Environmental Planning and Assessment Act 1979 1. Relevant sections of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) provide: Part 4 Development assessment and consent … Division 4.9 Post-consent provisions … 4.55 Modification of consents—generally (1) Modifications involving minor error, misdescription or miscalculation 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 a development consent granted by it to correct a minor error, misdescription or miscalculation. Subsections (1A), (2), (3), (5) and (6) and Part 8 do not apply to such a modification. (1A) Modifications involving minimal environmental impact 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 proposed modification is of minimal environmental impact, and (b) it is satisfied 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 and before that consent as originally granted was modified (if at all), and (c) it has notified the application in accordance with— (i) the regulations, if the regulations so require, or (ii) a development control plan, if the consent authority is a council that has made a development control plan that requires the notification or advertising of applications for modification of a development consent, and (d) it has considered any submissions made concerning the proposed modification within any period prescribed by the regulations or provided by the development control plan, as the case may be. Subsections (1), (2) and (5) do not apply to such a modification. (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), and … (3) In determining an application for modification of a consent under this section, the consent authority must take into consideration such of the matters referred to in section 4.15(1) as are of relevance to the development the subject of the application. The consent authority must also take into consideration the reasons given by the consent authority for the grant of the consent that is sought to be modified. (4) The modification of a development consent in accordance with this section is taken not to be the granting of development consent under this Part, but a reference in this or any other Act to a development consent includes a reference to a development consent as so modified. (5) (Repealed) … (6A), (7) (Repealed) (8) Modifications by the Court The provisions of this section extend, subject to the regulations, to enable the Court to modify a consent granted by it but, in the extension of those provisions, the functions imposed on a consent authority under subsection (1A)(c) or subsection (2)(b) and (c) are to be exercised by the relevant consent authority and not the Court. 4.56 Modification by consent authorities of consents granted by the Court (1) A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the Court and subject to and in accordance with the regulations, modify the development 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 the consent was originally granted and before that consent as originally granted was modified (if at all), and … (1A) In determining an application for modification of a consent under this section, the consent authority must take into consideration such of the matters referred to in section 4.15(1) as are of relevance to the development the subject of the application. The consent authority must also take into consideration the reasons given by the consent authority for the grant of the consent that is sought to be modified. … 1. The modification of a court approved development consent is permitted by s 4.55(8). As s 4.55(8) applied, s 4.55(2)(a) and (3) were the relevant provisions which applied in the appeal before the Commissioner. The parties agree that the "Statement of facts and Contentions" (SOFAC) and the judgment refer erroneously to s 4.56(1)(a) and (1A) when the applicable provisions are s 4.55(2)(a) and (3). The Court was informed that this same error appears in the third ground of appeal where reference to s 4.56(1A) should be s 4.55(3). As the provisions are effectively identical, for current purposes nothing legally relevant arises from this. I will refer to s 4.55(2)(a) and (3) in this judgment. Statement of Facts and Contentions 1. The SOFAC prepared by the Council before the Commissioner stated: 1. The modification application must be refused because the proposed modified development is not substantially the same development as the development for which the consent was originally granted and before that consent as originally granted was modified as required by section 4.56(1)(a) [should be s 4.55(2)(a)] of the Environmental Planning and Assessment Act 1979. Particulars (a) When compared to the original approved development application, the development as proposed to be modified would result in: i. An additional sixth storey to a previously approved five storey mixed use development, resulting in a new breach to the 18 metre building height development standard by increasing the height from 18m to 24.16m (34.2%). ii. An increase of twelve apartments from 66 to 78 apartments (increase of 18%) iii. An increase in gross floor area of 906.5sqm (15.8%) iv. Construction of an additional basement level resulting in an increase in car parking from 113 spaces to 125 spaces. v. Increase in bulk and scale of the built form. vi. Increase in overshadowing to the rear adjoining properties. (b) The relevant comparison for the purposes of section 4.55AA [sic] [should be s 4.55(3)] of the Environmental Planning and Assessment Act 1979 involves a qualitative appreciation, as well as quantitative, of the developments being compared in their proper contexts, including the circumstances in which the development consent was granted. (c) In respect of the original application, which was the subject of a Class 1 Appeal to the Land and Environment Court, the excessive height of the original six storey built form was raised as Contention 1 in the Respondent's Statement of Facts and Contentions. The Applicant reduced the development from six storeys to 5 storeys, which resulted in the parties entering into a conciliated agreement. (d) The Respondent's decision to enter into a conciliated agreement was contingent on the development complying with the building height development standard of the CLEP 2012 and thereby formed an essential element to the grant of consent as evidenced by: i. Condition 7 imposed on the consent which states: The development must not be more than 18m in height (as defined under the Canterbury Local Environmental Plan 2012). ii. Correspondence between Council and the applicant prior to the deemed refusal Class 1 Appeal; iii. Contention 1 of the Respondent's Statement of Facts and Contentions; iv. Deletion of the sixth storey being the primary change between the deemed refusal application and the development as approved; and v. Comments from the Roads and Maritime Services as detailed in paragraphs 16 and 21 of the Facts. (e) The reduction in number of storeys from six to five was a material and essential feature of the approved development, which is sought to be undone by the modification application. (f) Having regard to the above, the modification application is not essentially or materially the same as the original approved development. An assessment of the qualitative and quantitative differences between the approved development, and that sought under the modification application results in a built form that is fundamentally different in essence with respect to character, built form and environmental impacts. Commissioner's judgment 1. The Commissioner's judgment identified the planning framework, referring to s 4.56(1) and (1A), each of the parties' submissions on whether the proposed modification was substantially the same development, a summary of merit issues, and her findings. As the parties' arguments focussed on her findings in considerable detail, these are extracted in full inter alia: 20. As the application is a modification application, consent can be granted for a breach of the LEP height without the requirement for a written request under cl 4.6 of the LEP to first be upheld. However, the parties nevertheless agreed that it was relevant to consider the objectives of the height standard given the new height proposed. 21. A pre-condition to granting of consent to the modification application is to that the modified development proposed would be substantially the same as that approved. The relevant provisions of s 4.56(1) of the EPA Act are as follows: ... 22. In determining an application for modification of a consent, the consent authority, in this case the Court, must, at s 4.56(1A), take into consideration such of the matters referred to in s 4.15(1) as are relevant to the development the subject of the application. Section 4.15(1) contains the evaluating matters for consideration in an assessment. The Court must also take into consideration the reasons given by the consent authority for the grant of the consent that is sought to be modified. There were no issue with the requirements of s 4.56(1) being met other than in terms of subs (a). … Is the development substantially the same development? The Council's submissions 28. As indicated, the Council was of the view that the development was not substantially the same as the approved development as required by s 4.56(1)(a) of the EPA Act. Therefore the Court had no power to consent to the modification application. 29. Further, as required by s 4.56(1A), regard had to be given to the reasons behind the grant of the Court approval now sought to be modified. It was therefore necessary to provide background to the Court approval. … The applicant's submissions 44. The applicant argued that a qualitative as well as quantitative assessment of the modification indicated it would be materially the same development as the approved development. It would not result in a development that was fundamentally different in essence with respect to character, built form or environmental impacts. ... Findings 71. As granting consent to the modification application is conditional upon the Court being satisfied that the modification sought would result in a development substantially the same as the approved development, and having regard to the reasons why the consent was granted, I firstly need to deal with that pre-condition. 72. On the evidence, including those extracts from the Council bundle referenced, and the consent itself, approval to the original development was supported by the Council by way of a s 34 agreement on the basis that the development was amended to comply with the maximum height permitted by the LEP, did not constitute 6 storeys, and had a reduced density in terms of the number of apartments proposed. Consent was issued by the then Senior Commissioner of the Court with the Court orders reflecting those agreed by the parties contained in the s 34 agreement, as is required under s 34 of the LEC Act: see City Projects. 73. The only reasons given for the Court's consent in City Projects, reflective of the Court's practice at the time, were those provided in a standardised judgment format which simply reflected the terms of the decision made by the parties in the s 34 agreement. They therefore merely indicate that the presiding Commissioner was satisfied that the decision of the parties to the agreement was one that the Court could have made in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act) and, consequently, the Court's decision was required by the LEC Act to be in accordance with the decision of the parties: s 34(3)(a). 74. In making the orders to give effect to the agreement between the parties, the Court therefore did not, and was not able to, make any merit assessment of the issues that were originally in dispute between the parties, including the proposed height and density, providing both were lawful, as they were. 75. I do not however, accept the applicant's position that, having regard to s 4.56(1A) of the EPA Act, being to take into consideration the reasons given by the consent authority for the grant of the consent, as the Court was the consent authority and gave no merit reasons for the original approval, that the merit reasons behind the Council supporting the development (as approved) should not be considered. 76. Even if I am not correct in that, the Court consent requires the development to proceed in accordance with the referenced approved plans, which are height compliant and reflect a certain density, and with the conditions of consent, which include requiring compliance with the 18m height standard, at condition 7. 77. If I am correct in my interpretation of the proper reading of s 4.56, it is that regard should be had to the reasons behind the consent; namely why the Council, who would, if not for the City Projects appeal, have been the consent authority for the approved development, supported the s 34 agreement enabling (in fact requiring) the Court to issue the consent to that development in terms agreed to by the (then) parties. 78. Whilst it is the case that the terms of the s 34 conciliation resulting in the Council supporting a specific consent are confidential, there was undisputed evidence that the original application was not supported by the Council, otherwise it would not have been the subject of the City Projects appeal, and it was only supported by way of a s 34 agreement once it was amended to respond to the Council's requirements to comply with the height and reduce the density. 79. In order to otherwise be approved, it would require that either the Council and the Court, through a s 34 agreement, or the Court on determination of the appeal, were satisfied, by the upholding of a cl 4.6 request prepared by the applicant that it justified the height breach sought. Given the documentation referenced by the Council in the proceedings, but not directly comprising part of the conciliation itself, it is clear that the Council would not have upheld such a cl 4.6 request. The Court would therefore not have been presented with the s 34 agreement which enabled the Court consent to be issued for the development that was approved. That is the development now sought to be modified. 80. I do not accept that removal of the sixth storey, height compliance, and a reduced density were not the primary aspects of the original approval. These were the three aspects quoted in the Council Report on the outcome of the City Projects appeal which were required by the Council to be amended and which were amended by the then applicant. The height compliance was reinforced by the modified approved plans and agreed condition 7. It is clear from the admissible evidence that the Council would otherwise not have supported the s 34 agreement, and the Court could not have made the orders to issue the consent now sought to be modified. 81. As I have indicated, the Council Report on the outcome of the s 34 agreement, and other applications before the Court, indicated that the development was only acceptable because of the reduced height and density. Modifying these elements was therefore a material and essential aspect in order to gain the Council's support for the granting of consent which then became the consent required to be issued by the Court. 82. These were the circumstances in which the development consent was granted. In this regard, the circumstances are different from Commissioner Tuor's decision in Ahmad where she determined that it was speculative to conclude that the height was an essential element of the approval issued by way of a s 34 agreement as this was not evident from the readily identifiable circumstances leading to that agreement. 83. As Mr Seton noted, amendments required to a development in order to gain approval are dealt with in Innerwest 888 where at [56], Commissioner Morris had regard to changes required in order to make a development acceptable to the Council. The changes included lowering the building's height and that change was, in her view, an essential element of the Council's determination and approval, reinforced in the consent conditions. 84. In Moto Projects, Bignold J found that the comparative task required to be undertaken by the Court under s 4.56 does not merely involve a comparison of the physical features or components of the approved development. Rather, comparison involves an appreciation of the qualitative as well as quantitative aspects of the development being compared in the proper context including the circumstances in which the approval was granted. 85. In that regard, factors that are known to be "important, material or essential" in the issue of the original consent are central to the comparison assessment of what has been approved and what is now proposed. Height and density in this instance were such factors, and known by the applicant, and the applicant's architect, to be so. 86. Further, in Moto Projects at [71] Justice Talbot states that the focus of such an assessment "may be on a critical element of a building which is to be the subject of change in order to determine whether the entire development is substantially the same development". In my view, that critical element is the height but also, to a lesser degree, the density. 87. I also note in Moto Projects, the comments of Justice Talbot at [51] that placing undue reliance on the modification representing only a fraction of the development was legally flawed. Therefore, the applicant's submission that increasing the height as proposed is by only 1% of the approved overall height and therefore is a minor increase, and notwithstanding that the height would then be more than 34% above the approved and permissible maximum height, is also legally flawed and cannot be relied upon to support the finding that the proposed modification is substantially the same, from a quantitative perspective, as the approved development. 88. From a quantitative perspective, I do accept that what is approved remains a multi-storey mixed use building and what is proposed may not, arguably, result in a radical transformation of the development, which is one of the considerations applied to determine if the modification proposed would result in substantially the same development. 89. However, as I found in FPG No. 2 Pty Ltd v Randwick City Council [2018] NSWLEC 1300, the test goes beyond whether a development requires a radical transformation in order not to be substantially the same as the approved development. 90. In that decision, I referenced Innerwest 888 but also the Court's decision in Pozzobin v City of Canada Bay Council [2014] NSWLEC 1143 where then Commissioner Dixon was not satisfied, after a qualitative and quantitative comparison of the modification and the original consent, that the development would be substantially the same if certain conditions of consent were removed. 91. In arriving at that decision, she had regard to the circumstances in which the original consent was granted as evidenced from a planning assessment report prepared by a Council officer. The approved development encompassed the amendments required by the conditions which she determined were part of the design and ultimately the consent. She concluded at [48], in part, that conditions could not be unnecessary in circumstances where they were imposed after a merit assessment to make the development acceptable. 92. Such is also the case for condition 7 of the consent sought to be deleted in this appeal. 93. From a quantitative perspective, it is also relevant to note the concerns of the RMS, and the basis for the Canterbury Road Review, that adding additional density above that contemplated by the controls, adds to increased traffic not anticipated on Canterbury Road. Whilst it is the case that there is no FSR control for the site, the modification application proposes an 18% increase in the number of apartments; from 66 to 78. This is an example of precisely the additional density not contemplated by the controls that the RMS refers to. I also note the 78 apartments now sought is more than the number proposed in the original application, which was for 76 apartments not supported by the Council on the basis that even that number of apartments was too high and not contemplated by the controls. 94. From a qualitative point of view, the additional height will have additional impacts relative to those that arise from the approved development. It will change the extent and nature of overshadowing of the properties to the south in Weyland Street. Even if the extent of this change was not satisfactorily determined, I accept, as Commissioner Brown did in Statewide Planning, that, in effect, an additional storey above that approved (and without any other substantive design changes) must have additional overshadowing (on adjoining properties to the south). 95. In this instance, those properties are being redeveloped to a much greater density than exists today and having regard to the controls for sites to the north, including the appeal site. They are particularly susceptible to overshadowing being south of properties fronting Canterbury Road. As Mr Seton pointed out, the most recent approvals (including for 9-11 Weyland Street issued by the Court to the rear) have been the subject of overshadowing analyses assuming developments to their north would be built in accordance with approvals and/or with the planning controls including to a maximum height. In this context, additional overshadowing makes a material and qualitative difference to a number of approved, proposed or likely future apartments in developments immediately adjoining to the south (rear). 96. It is in this context of the site, and the circumstances of the original approval, that I have concluded that, from a quantitative and a qualitative point of view, there are sufficient grounds to determine that the development is not substantially the same as, being materially different to, that which has been approved. 97. My findings are not at odds with Justice Moore's decision in Bassett and Jones. It is not the fact that the height standard is proposed to be breached that causes the modification application to transmute into one which is not substantially the same as the approved development. It is the circumstances that lead to the original consent being granted. Namely, that consent was only supported by the Council because the height would not be breached, the s 34 agreement would not otherwise have been entered into, and the Court would not have issued the consent in accordance with the agreement. These are the relevant reasons behind the consent that was granted having regard to the requirements of s 4.56 of the EPA Act. 98. Given these findings, I have no power to consent to the application and accordingly, the appeal is required to be dismissed. Evidence 1. The Appellant tendered an appeal court book (Ex A) made up of the summons commencing the appeal, the Commissioner's orders and reasons for judgment, the transcript of the proceedings and affidavits, exhibits and other documents that were before the Commissioner. Grounds 1, 2, 3 1. These grounds are closely related and should be dealt with together. Ground 1 is expressed as the Commissioner misdirected herself in law by considering the circumstances in which the original consent was granted (the Court granted the consent following a successful s 34 conference of the parties). Ground 2 is expressed as the Commissioner misdirected herself in law by reference to whether the approved development was only supported by the Council because the height standard would not be breached, the s 34 agreement would not otherwise have been entered into, and the Court would not have issued the consent in accordance with the agreement. Ground 3 alleges the misconstruction of s 4.56(1A) / 4.55(3), on the basis the Commissioner had regard to the reasons behind the grant of the Court approval for which modification was being sought. Appellant's submissions Grounds 1 and 2 1. The Commissioner's key findings were that she needed to deal with the precondition that the modification sought would result in development which was substantially the same as that approved, having regard to the reasons why development consent was granted: at [71]. Ahmad Corp Pty Ltd v Fairfield City Council [2018] NSWLEC 1526 (Ahmad), a factually similar matter, was referred to. In Ahmad a modification to an approved residential development by extension of the proposal with an extra level was approved. The Commissioner found that the approval of the original development was supported by the Council by way of a s 34 agreement in which the development was amended to comply with the maximum height permitted by the local environmental plan (LEP), was not six storeys and had a reduced density in terms of the number of apartments. In granting the consent the Court did not make any merit assessment of the issues in dispute. The Commissioner rejected the Appellant's position that the merit reasons behind the Council supporting the development should not be considered, finding instead that regard should be had to the reasons why the Council supported the s 34 agreement because material elements were modified. 2. Moto Projects (No 2) Pty Ltd v North Sydney Council (1999) 106 LGERA 298; [1999] NSWLEC 280 at [56] (Moto) was referred to where Bignold J held that comparing aspects of the development in the proper context included the circumstances in which the approval was granted. The Commissioner considered that factors which are important, material or essential in the issue of an original consent are central to the comparative assessment of what has been approved and what is now proposed: at [85]. Density and traffic concerns and overshadowing were referred to in concluding that the proposed modification was not substantially the same: at [96]. That the unamended development as originally proposed was not supported by the Council in relation to the original consent until the height limit was not breached was the circumstance which transmuted the modification application to one which is not substantially the same as the approved development: at [97]. 3. The Commissioner erred in finding that she must consider the Council's attitude to the breach of the height limit when it agreed to enter into a s 34 agreement 18 months earlier in determining the threshold question of whether the developments were substantially the same. Failing to correctly determine this threshold question is a material error that vitiates the decision. Most cases say that for an error of law to be material it is sufficient that it might or may have made a difference (Mark Aronson, Matthew Groves and Greg Weeks, Judicial Review of Administrative Action and Government Liability (6th ed, 2017, Thomson Reuters) at [4.270]). 4. The Commissioner erred in applying Moto at [56]. Moto had different facts as the same judge had earlier determined the grant of development consent in relation to which modification was sought. In that case, the relevant circumstance was a finding of fact by a judge in previous proceedings involving the same parties about what he had considered to be important in granting consent: Moto at [59]. The Commissioner impermissibly determined the issue by reference to the Council's town planner's attitude to a breach of the height limit when it agreed to enter into a s 34 agreement about 18 months earlier. The subjective intentions of a council officer should not be taken into consideration as doing so has the potential effect of depending on an opinion of that person about a particular aspect of the development which would constrain the consent authority's ability to modify that aspect of the development down the track. One should look at whether the two developments are substantially the same, not what is going on in the head of a council officer. To determine the question of substantially the same by reference to the reason why the Council entered into the s 34 agreement substitutes the Court's obligation to undertake the assessment with the attitude of a particular council. 5. Arrage v Inner West Council [2019] NSWLEC 85 (Arrage) identifies the correct approach at [29]. Arrage did not endorse taking into consideration the circumstances in which consent was granted. Rather, Preston CJ held material and essential features or elements are to be identified from the originally approved and modified developments, not from the circumstances in which the original consent was granted: Arrage at [29]. As identified in Arrage at [30], where a consent is granted by the Court pursuant to s 34 no reasons are given on the merits. Material and essential features were not to be identified from the Council's attitude or other circumstances in which the consent was granted. Doing so involves drawing inferences as to what the thought processes of a town planner were for deciding to enter into an agreement to grant consent. Whether a council or a member of its staff would or would not have agreed to a particular outcome is immaterial to the application of s 4.56(1)(a) / 4.55(2)(a). 6. In reply on Grounds 1 and 2, the misdirection of the Commissioner in determining "substantially the same" by reference to the circumstances in which the original consent was granted was an error that was material and did vitiate the Commissioner's decision. For an error of law to be material, it is sufficient that it might or may have made a difference: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; [1990] HCA 33 (ABT v Bond) at 353 per Mason CJ and 384 per Toohey and Gaudron JJ; House v Defence Force Retirement and Death Benefits Authority (2011) 193 FCR 112; [2011] FCAFC 72 (House) at [31]. 7. The assertion that other unchallenged reasons in the judgment provide an "independent and separate" basis for the Commissioner's decision is not supported in the Commissioner's judgment. The judgment at [96] refers to the circumstances of the original consent. There is no statement to the effect that independently of the circumstances of the original consent the Commissioner would have found that the proposed development was not substantially the same as that approved. The same observations apply to [97]. 8. The Commissioner's findings were impermissibly based on the intentions of the Council and its staff, at [77] and [97]. The test of whether two developments are substantially the same is an objective test. The EPA Act does not envisage searches of Council's documents not incorporated in a consent to determine what Council has approved or whether what has been approved is substantially the same. In this case, the Commissioner's findings relied on an internal Council report that had been prepared after the consent was granted summarising the outcome of the proceedings at [39], [80] and [81]. It is unclear whether the report was publicly available. Whatever the status of that report, the EPA Act does not envisage that a proponent should be required to embark on a search of a Council's files in order to determine what the Council has approved, or to determine whether what has been approved is substantially the same as what might be proposed: Auburn Municipal v Szabo (1971) 67 LGRA 427 (Szabo); House of Peace & Anor v Bankstown City Council (2000) 48 NSWLR 498; [2000] NSWCA 44 (House of Peace); and Ryde Municipal Council v The Royal Ryde Homes (1970) 19 LGRA 321. Ground 3 1. In relation to Ground 3, the Commissioner appeared to accept the Council's submission at [29] of her judgment that as required by s 4.56(1A) / s 4.55(3) regard had to be had to the reasons behind the grant of the Court approval now sought to be modified: at [71], [77] and [97]. 2. Firstly, the Commissioner did not correctly apply s 4.56(1A) / s 4.55(3) because any such consideration must take place once the opinion has been formed that the proposed and approved developments are substantially the same: Arrage at [42]. Secondly, the Commissioner conflated the reasons given by a consent authority with the reasons for the Council entering into a s 34 agreement. That requires the drawing of inferences about the thought processes of the Council in entering into an agreement. There are sensible reasons for eschewing a construction of the EPA Act which requires the threshold question of whether two developments are substantially the same by reference to the actual intentions of a Council or its staff. Development consents run with the land. The Commissioner's approach was contrary to the well-established principles of the construction of a development consent identified in Szabo and House of Peace. Development consents run with the land. It is impermissible to expect a developer who seeks to modify a development consent to have to make inquiries of a council to determine why a particular decision was made. The authorities apply by analogy in that the objective approach to construing a development consent identified in Szabo and House of Peace is how the Commissioner should have approached the question of whether the development was substantially the same. 3. The EPA Act was modified on 1 March 2018 to include the requirement to consider "the reasons given by the consent authority for the grant of the consent" in determining a modification application (s 4.55(3)). At the same time, a requirement was imposed requiring a council to provide public notification of "the reasons for the decision (having regard to any statutory requirements applying to the decision)" to grant development consent. The wording used in s 4.55(3) ("reasons given") together with the contemporaneous introduction of the requirement for public notification of the "reasons for the decision" suggest that s 4.55 does not impose any requirement to go beyond those (objectively identifiable) reasons actually given at that time. They do not mandate an inquiry into the intentions of a council or its staff when a consent is sought to be modified months or years down the track. The Commissioner impermissibly conflated the reasons given by the Council for the grant of consent with the reasons of the Council for entering into a s 34 agreement. 4. In reply on Ground 3, the Commissioner's approach was not consistent with Moto as the relevant circumstances considered by Bignold J were a prior factual finding that an element of the proposal sought to be modified was "important" in deciding to grant the original consent: Moto at [59]. This should not be read as a general principle that any circumstance in which a consent is granted is a relevant consideration. 5. The Council's submission that taking into consideration the circumstances in which development consent was granted was not doubted in Arrage is not supported. In Arrage, Preston CJ held that the substantially the same development test could support an inquiry into the essential features, which should be identified from the originally approved and modified developments, not the circumstances in which the original consent was granted (at [27] and [29]). The Commissioner at [81] of her judgment discerned the essential elements of the proposal from the circumstances in which the original consent was granted, contrary to the correct approach outlined in Arrage. 6. The three grounds of appeal should be answered by finding that the Commissioner erred in law. Council's submissions Grounds 1 and 2 1. Considering grounds 1 and 2 together, the question the Commissioner asked was whether the proposed amended proposal was substantially the same as the original approval. The only complaint available under a s 56A appeal is whether the Commissioner asked and answered the right legal question. 2. The Appellant relied on paragraphs in the Commissioner's judgment that were records of the parties' submissions, for example at [29]. These do not constitute her findings and should not be read as such. 3. Firstly, a proper analysis of the Commissioner's reasoning shows that even if she wrongly relied on the asserted intentions of the Council at the time of the s 34 agreement, there were other reasons for her finding that the substantially the same development test had not been satisfied that do not involve an error of law (Tuite v Wingecarribee Shire Council (No 2) [2008] NSWLEC 321 at [41] (Tuite)). The independent reasons for concluding the substantially the same development test was not satisfied in the Commissioner's decision were the quantitative perspective (at [93] read with [38]) and the qualitative perspective (at [94]-[95]). These findings were each separate to and independent of the Commissioner's consideration of the circumstances of the grant of development consent and were separate reasons for concluding that the "substantially the same development" requirement was not satisfied. On this basis the appeal should be dismissed as the error identified by the Appellant, even if found to be an error of law, was not a material error vitiating the decision. The Commissioner recognised that the inquiry she was to undertake was the s 4.55 comparative exercise between the amended proposal as sought and the original approval. The Commissioner answered and inquired into that matter. 4. Secondly, it is incorrect to characterise the Commissioner's findings as having been based on subjective intentions. Rather, the Commissioner had regard to the maximum height control under the LEP and condition 7 that was imposed to emphasise that height control. According to Moto, the circumstances in which the development consent was granted are relevant in determining whether the substantially the same development test is satisfied: Moto at [56]. Reference to circumstances extends to any relevant and ascertainable circumstances present at the time of the grant of consent. The Commissioner's purported reliance on s 4.56(1A) / s 4.55(3) of the EPA Act in the last sentence of [97] in having regard to circumstances was a non-material error, however the substance of the inquiry was not an error. The substantive evaluation and inquiry into the circumstances of the grant of the original consent was permissible. 5. In the context of the statutory scheme comprising the EPA Act and the LEP, a proposed building which exceeds the maximum height control under the LEP may not be substantially the same development as a building which does not exceed the maximum height control, regardless of the extent of the proposed breach. Development standards are critical provisions of an LEP. A development proposal which would otherwise rely on a cl 4.6 request is readily capable of being characterised as not substantially the same development as a proposal which does not rely on such a request. 6. A distinction should be made between the reasons behind the Council's consideration of the consent and the reasons given for the consent by the Court (which were perfunctory). The two phrases were not used interchangeably in her judgment. What the Commissioner regarded as necessary to take into consideration were the reasons given by the Council. The Commissioner accepted and appreciated that the Court's reasons were perfunctory and of no assistance to the inquiry: at [71]-[74]. 7. Thirdly, even if it is correct to characterise the Commissioner's reasons as involving an inquiry into subjective intentions, this was a permissible inquiry in determining the substantially the same development test: Moto at [56]; Arrage at [40]. The circumstances in which the development was granted are not a mandatory consideration but rather a permissive consideration and the material and essential elements of the original development consent are not a mandatory consideration but a permissive consideration. 8. It follows that the only question that can arise in the appeal is whether the Commissioner asked and answered the correct legal question. The Appellant's submissions are incorrectly directed at the Commissioner's answer rather than the legal question. The Commissioner's findings at [20] and [97] were within power to find that given compliance with the maximum height control of the original development and the importance placed on that by the Council, any modified building envelope which exceeded the height control would fail the "substantially the same" requirement including avoiding the need to lodge a cl 4.6 application. 9. Contrary to the Appellant's submission, there is no express or implied limitation on the matters the Court may have regard to, including the attitude of a particular council provided that the Court asks and answers the correct question under s 4.55 of the EPA Act. At the heart of the Appellant's complaint is that the Commissioner took into account an irrelevant matter, the opinion of a council officer, but there is no statutory support for that submission. Ground 3 1. On Ground 3, misconstruction of s 4.56(1A) / 4.55(3), the Council generally agrees with the Appellant's submission that the subsection only applies if the proposed modification overcomes the first hurdle of satisfying the "substantially the same development" requirement. 2. The Commissioner was not construing a development consent and Szabo and House of Peace have no application to this matter. As observed in Arrage at [24] the "substantially the same development" requirement does not involve any inquiry into the terms of the original consent. Grounds 1, 2, 3 consideration 1. The Commissioner was considering the modification application of the Appellant by virtue of s 4.55(8) of the EPA Act, s 4.56(1)(a) / 4.55(2)(a) requiring initial determination of whether the modified development proposed is substantially the same as the original development. The Commissioner posed that issue for initial determination at [71], adding also "and having regard to the reasons why the consent was granted...". That the Commissioner used the additional words in [71] which do not appear in s 4.55(2)(a) ultimately underpins the Appellant's first three grounds of appeal. 2. Extracted from the Commissioner's judgment in [8] above are her description of the statutory framework at [20]-[22] referring to s 4.56(1)(a) / s 4.55(2)(a) and s 4.56(1A) / s 4.55(3), extracts of the parties' submissions on whether the development is substantially the same development, the Council's submissions at [28]-[29] and the Appellant's submissions at [44] and her consideration in full. 3. Why and how the Commissioner came to be referring to s 4.56(1A) / s 4.55(3) at all was not clearly identified in the appeal before me and I was not assisted by the parties' submissions in this regard. Both the Appellant and the Council before me now appear to agree that s 4.56(1A) / s 4.55(3) should not have been referred to at all (Appellant) or as a mandatory matter (Council) by the Commissioner in the context of determining the precondition in s 4.56(1)(a) / s 4.55(2)(a). The approach of the Commissioner in the opening paragraph of her finding at [71] mirrors the approach of the Council's SOFAC at par 1 particular (b), set out above in [7], and the Council's submissions to the Commissioner as summarised at [29] of the Commissioner's judgment. 4. Paragraph 1(b) of the Council's SOFAC states that the relevant comparison requires a qualitative and quantitative assessment, including the circumstances in which the development was granted (emphasis added) referring to s 4.55AA. The parties agreed in the hearing before me that this should have been a reference to s 4.55(3) (s 4.56(1A) being the section referred to in the judgment in other paragraphs such as [29] referring to the Council's submissions). Particulars (c), (d), and (e) identify the basis for the Council entering into the s 34 agreement, namely that the building height development standard of the Canterbury Local Environmental Plan 2012 (CLEP 2012) was met by the deletion of a sixth storey, and comments by the Roads and Maritime Services (RMS). The reduction in the number of storeys from six to five was a material and essential feature of the approved development from the Council's perspective. These particulars lead to the statement at (f) that the modification application is not essentially or materially the same as the original approved development. 5. The Council's SOFAC and submissions to the Commissioner as identified at [29] did not accurately reflect the wording of s 4.56(1A) / s 4.55(3) or its relationship to s 4.56(1)(a) / s 4.55(2)(a). Section 4.55(3) requires in the second sentence that regard must be had to the reasons given by a consent authority for the grant of consent sought to be modified. The SOFAC and at [29] of the Commissioner's judgment refer to the section requiring the circumstances in which the development consent was granted to be considered, which is a different if related matter to the reasons of a consent authority for granting development consent. The Appellant's SOFAC in reply did not identify this matter as an issue. 6. The judgment states at [75] that the Commissioner did not accept the Appellant's position, citing s 4.56(1A) / s 4.55(3), that the merit reasons for the Council supporting the development as approved should not be considered. It is not clear precisely what argument the Commissioner was addressing in that finding of whether the Appellant submitted that s 4.56(1A) / s 4.55(3) should not have been referred to at all, or that the section had a particular application. 7. As identified in Hoy at [7] any question of law must be identified implicitly or explicitly at first instance, and must arise from a contest or dispute between the parties. The obvious reason for this requirement is that otherwise matters can be taken on appeal of which a commissioner was unaware, and could not therefore address. It is not obvious that the issues complained of in the first three grounds in this appeal based on s 4.56(1A) / s 4.55(3) were squarely raised by the Appellant before the Commissioner. The only relevant reference is at [75] of the judgment. I was not directed to any transcript reference where this occurred. the Commissioner's judgment mirrors the matters identified in the SOFAC and submissions of the Council as summarised in the judgment. The Commissioner was poorly served by the erroneous references to s 4.56(1A) / s 4.55(3) (however described) in the SOFAC and the absent or inaccurate submissions of the parties before her as to the correct statutory framework. I will deal with the first three grounds of appeal in these unsatisfactory circumstances. 8. As the Appellant submitted, s 4.56(1A) / s 4.55(3) does not require (emphasis added) regard to particular circumstances as relevant to the threshold issue in s 4.56(1)(a) / s4.55(2)(a): Arrage at [43]. The judgment also misstates s 4.56(1A) / 4.55(3) in referring to the circumstances behind the grant of a consent by the Court rather than the reasons given by a consent authority in granting the original consent sought to be modified, as the sub-section states. The Council accepted that there was a non-material error at [97], where the Commissioner stated that the relevant reasons that the consent was granted by the Court were those of the Council, when there was no basis for finding that as the Court provided a perfunctory judgment in the context of a s 34 agreement. I agree with that submission but I infer that the reason the Commissioner referred at all to s 4.56(1A) / 4.55(3) was because the Council identified it as relevant. The Commissioner was clearly aware that the Court's reasons were perfunctory in the standardised judgment format as she so stated at [73], and involved no merit assessment, at [74]. 9. The Council's approach in this appeal to s 4.56(1A) / s 4.55(3) appears contrary to what it put to the Commissioner during the appeal and in its SOFAC. The Council submitted in this appeal that no basis arose for the application of s 4.56(1A) / 4.55(3) because the Court's reasons did not disclose why the Court granted the original consent under s 34 as identified in the judgment at [73]-[74]. That submission is correct. The Council however was the likely source of the error before the Commissioner. 10. As already noted, both the Appellant and the Council before me now appear to agree that s 4.56(1A) / s 4.55(3) should not have been referred to as either a mandatory matter in contrast to a permissive matter (Council) or at all (Appellant) by the Commissioner. The parties now also appear to agree that the wording of s 4.56(1A) / 4.55(3) was not accurately stated in the judgment, which I agree is apparent from some parts of the judgment. 11. Turning to Grounds 1 and 2, which are not expressed as relying on s 4.56(1A) / 4.55(3) but do implicitly arise from its identification in the judgment, the Appellant's grounds of appeal must be considered in light of my findings and observations above. The issue is whether having regard to the merit reasons why the Council considered entering into a s 34 agreement in relation to the original development was relevant to the determination required in s 4.56(1)(a) / 4.55(2)(a). That is the question the Commissioner correctly posed at [75]. As the Council's submissions before me identified, apart from [97] the Commissioner distinguished between the circumstances of the Council's consideration of the original DA from the Court's determination of the s 34 agreement. That is clear from the Commissioner's consideration. 12. The Appellant relies on Arrage, particularly at [29] and [42]. It is necessary to consider those two paragraphs in context. Arrage was a s 56A appeal of a commissioner's refusal of a modification application. The commissioner was not satisfied that the precondition that the modified development was substantially the same development as originally granted was met. The appellant argued a number of grounds including that the commissioner had applied the wrong test because the comparative exercise referred to in Moto at [55] was not undertaken (ground 1(a)). In rejecting that ground Preston CJ stated at [27]-[29]: 27 This interpretation of the statutory test that the modified development be substantially the same development as the originally approved development, that the modified development be "essentially or materially" the same or "having the same essence" as the originally approved development could support an inquiry to identify the material and essential features of the originally approved and modified developments in order to undertake the comparative exercise required, but it does not demand such an inquiry. 28 That is one way, probably in most cases the most instructive way, to identify whether the modified development is substantially the same development as the originally approved development, but it is not the only way to ascertain whether the modified development is substantially (in the sense of essentially or materially) the same development as the originally approved development. For example, comparison could be made of the consequences, such as the environmental impacts, of carrying out the modified development compared to the originally approved development: see Moto Projects at [62] and Tipalea Watson Pty Ltd v Ku-ring-gai Council (2003) 129 LGERA 351; [2003] NSWLEC 253 at [17]. 29 But if that way is selected, then the material and essential features or elements are to be identified from the originally approved and modified developments, not from the circumstances in which the original development consent was granted. ... 1. Another ground of appeal in Arrage (ground 1(b)) alleged the failure to consider as a relevant matter the circumstances in which the development consent was granted and the material or essential elements for which consent was originally granted. In rejecting that ground Preston CJ stated: 40 I reject ground 1(b) of the appeal. As to the first two matters said not to have been considered by the Commissioner, I repeat my reasons for rejecting ground 1(a). In particular, the Commissioner was not legally bound, by s 4.55(2)(a) of the EPA Act, to consider the circumstances in which the development consent was originally granted or the material or essential elements of the original development consent: neither are mandatory relevant matters, such that a failure to consider them is an error of law: see Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-40. ... 42 It is true that s 4.55(3) requires a consent authority to take into consideration such of the matters in s 4.15(1) of the EPA Act as are of relevance to the development the subject of the modification application and that one of those matters is the applicable environmental planning instruments, which would include in this case MLEP. But that consideration occurs "in determining an application for modification of a consent" under s 4.55. This determination cannot occur unless and until the preconditions in s 4.55(2) have been satisfied, one of which is in s 4.55(2)(a) that the consent authority has formed the positive opinion of satisfaction 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 and before that consent as originally granted was modified (if at all)". The consent authority is therefore not bound by s 4.55(3) to consider the provisions of applicable environmental planning instruments at the stage of determining whether the precondition in s 4.55(2)(a) is met. 43 This is not to say that it would not be permissible for a consent authority to consider the provisions of applicable environmental planning instruments in determining whether the precondition in s 4.55(2)(a) is met, only that the consent authority is not bound in law to do so. There is a difference between a relevant matter that a repository of power is bound to consider and a permissible matter that the repository of power is entitled to consider. 1. Arrage at [42] found that s 4.55(3) is not a mandatory provision for the purposes of applying s 4.55(2)(a), as already noted above at [43]. Importantly Arrage at [43] identifies that matters in s 4.55(3) and, I interpolate, other matters may be permissibly relevant to the consideration of the precondition in s 4.55(2)(a). The matters to be considered in determining the s 4.55(2)(a) threshold question are not explicitly defined or confined and must reflect the facts of a particular case. 2. The Appellant criticised references made by the Commissioner to Moto submitting that its criticism was supported by Arrage at [29]. When Arrage is read in context, namely the ground of appeal which focussed on Moto and parties' arguments, I do not agree that Arrage is authority that any reference to Moto by the Commissioner was erroneous. The important finding in Arrage for the purposes of this appeal is that matters in s 4.55(3) are not mandatory in the determination of s 4.55(2)(a). While the Commissioner referred to the circumstances in which development consent was granted, the essence of what she was considering was the Council's evidence of what the essential characteristics of the original development were, a matter clearly relevant to the Commissioner's deliberations in relation to s 4.55(2)(a). 3. The Council submitted in this appeal that the Commissioner posed to herself the overarching consideration correctly, as she did, and in answering that considered matters that were not irrelevant. I agree. The Commissioner's judgment at [72]-[75], [77]-[79], and [80]-[81] considers the Council's reasons for entering into the s 34 agreement as identified at [75]. Reading the reasons fairly, this was done to gain an understanding of what the essential aspects of the original consent were, as identified at [81], a permissible inquiry given the issue before the Commissioner. It follows that I accept the Council's submission that such considerations were not mandatory and were not irrelevant to the issue before the Commissioner. 4. There is no demonstrated error at [84]-[86] of the Commissioner's judgment considering Moto including in the reference to the circumstances in which the approval was granted, as this assisted in this case in identifying the important and essential elements of the development which informs the assessment required in s 4.56(1)(a) / 4.55(2)(a). 5. The Appellant's submission that taking into account the so-called subjective views of a council officer is an error of law because it substitutes for the Court making an objective decision is misconceived. An elected local council, a statutorily constituted entity under the Local Government Act 1993 (NSW), must of necessity act through appropriately authorised personnel, including town planning staff. Local councils have various planning functions under the EPA Act. A local council is a consent authority under s 4.5(d) for the purpose of determining development applications for development within its local government area. A local council can make environmental planning instruments for its local government area (LEPs) under s 3.31. The views of local council planning staff on the planning issues in an appeal may well be highly relevant to consider, and are unlikely to be irrelevant, with the weight to be attributed to those views a matter for a commissioner: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40 at 41. I reject the Appellant's submission that reliance was impermissibly placed on so called subjective evidence in referring to the Council's town planner's report. There is nothing impermissibly subjective about the Council's town planner's opinion in this context as it assists in determining what the Council considers material aspects of a development. Such opinion usefully informed the Commissioner's deliberations identifying the essential elements of the approved development necessary for determining whether the modification is substantially the same. The Appellant's complaint about whether the report was public is irrelevant. The report was provided in the course of the Class 1 merit appeal proceedings in any event. 6. It is necessary to read the findings of the Commissioner fairly and in their entirety. The Council's submissions that the Commissioner relied on objectively identifiable facts concerning the views of the Council's staff to the approved original development and took into account a number of relevant considerations concerning material elements in reaching her conclusions in relation to s 4.56(1)(a) / 4.55(2)(a) is correct. Considering Grounds 1 and 2, firstly, there was no error of law in the Commissioner informing herself by reference to the circumstances in which the original consent was granted by the Court following a successful s 34 agreement, meaning the merit reasons for the Council's view. There is no apparent substantive difference between Grounds 1 and 2. It must follow that secondly, there was no error of law in the Commissioner considering the circumstances of the Council's decision to enter into the s 34 agreement as set out in the second appeal ground, that being essentially the same subject matter. 7. Turning to Ground 3, for reasons I have given above at [43] the Commissioner did misconstrue s 4.56(1A) / s 4.55(3) in the sense that it should not have been referred to as a mandatory matter or in the terms incorrectly identified to her by the Council. For completeness, I do not accept all the Appellant's submissions on this ground. The Commissioner was not required to construe a development consent as part of her reasoning. The principles in House of Peace and Szabo which are directed to the construction of development consents have no application by analogy, contrary to what the Appellant submitted, to determining whether a modification application is acceptable as required by s 4.55(2). A modification application could conceivably take many forms and can be assessed in several ways: for example Arrage at [28]. It is not clear how rules of construction of development consents designed to achieve certainty in that regard can apply to a merits assessment of an application for modification of a development consent. 8. The Appellant has established one relevant error by the Commissioner in relation to Ground 3. The issue that then arises is whether that is material and vitiates the finding of the Commissioner in relation to s 4.56(1)(a) / s 4.55(2)(a). The Appellant referred in reply to ABT v Bond and House, to the effect that an error of law is "material" if it might or may have made a difference. In ABT v Bond Mason CJ at 353 stated that "a decision does not involve an error of law unless the error is material to the decision in the sense that it contributes to it so that, but for the error, the decision would have been, or might have been, different". In House, Greenwood J in the majority held at [31] that in determining that an error was not material the court must be satisfied that the error of law did not deny the aggrieved applicant of the possibility of a successful outcome or, put another way, the error of law could make no difference to the result already reached. 9. The error in Ground 3 is not material and does not vitiate the Commissioner's overall findings for three reasons. Firstly, I have found that Grounds 1 and 2 are not established by the Appellant and these are closely related to Ground 3. Secondly, as a consequence of my finding on Grounds 1 and 2 the error of law in Ground 3 is one largely of form, not substance. Applying ABT v Bond and House, when the Commissioner's reasons are read fairly and as a whole, the error in Ground 3 does not vitiate her overall reasoning so that no different result might have been reached. The error made no difference to the result reached. 10. Thirdly, unchallenged alternative bases for the Commissioner's decision separate to any consideration of the Council's attitude leading up to the s 34 process exist, as the Council submitted, which I will now identify. Other reasons given by the Commissioner for her overall finding in relation to s 4.56(1)(a) / 4.55(2)(a) include the issue of height compliance which is considered discretely at [76]. Reference is made to Innerwest 888 Pty Ltd v Canterbury Bankstown Council [2017] NSWLEC 1241 at [83] and Moto at [84]. There is no error in referring to these judgments and in identifying that height and, to a lesser degree, density are critical at [86]. The reasoning referring to, at [88]-[91], quantitative matters, at [93] RMS' concerns about additional traffic on Canterbury Road and, at [94]-[95] greater overshadowing of properties to the south which are particularly susceptible to this due to their location in relation to the proposed development, is entirely orthodox planning consideration of the matters raised before the Commissioner. The parts of the Commissioner's reasoning identified in this paragraph provide separate bases for the Commissioner's conclusions such that even if there was error in the context of s 4.56(1A) / s 4.55(3), that error would not vitiate the Commissioner's conclusion: Tuite at [39]. The Commissioner is not required to make a statement that independently of the circumstances of the original consent the Commissioner formed the view s 4.56(1)(a) / 4.55(2)(a) was satisfied, contrary to the Appellant's submission in [17] above. 11. No basis for relief is established by the Appellant in relation to Ground 3. Ground 4 1. In Ground 4 the Appellant submitted before the Commissioner that non-compliance with the building height development standard related only to the lift run which occupied one per cent of the building. The Appellant alleges that the language used by the Commissioner at [87] of her judgment to describe that submission as "legally flawed" and "cannot be relied upon" demonstrates the erroneous finding in law that she was unable to take this matter into consideration. Appellant's submissions 1. The Commissioner relied on Moto in which Bignold J described an argument as legally flawed which placed "undue reliance" on a modification representing only a fraction of the overall development "without attempting any qualitative assessment": Moto at [51]. The submission at issue in the present case responded to a contention that the height limit was exceeded by over 34 per cent. The Appellant was entitled to respond to that contention as the extent of that particular non-compliance was limited to a small area occupied by the lift overrun and to have its submission taken into account. Council's submissions 1. A proper reading of the Commissioner's judgment at [87] does not disclose that she was unable to take the Appellant's submission on height exceedance into consideration. Rather, the Commissioner was rejecting the submission concerning the circumstances relied on to support a finding that the development was substantially the same. The Commissioner took the minor increase submission into account but did not accept that this could support the finding that the modification would be substantially the same development as originally approved. The Appellant takes an impermissible fine-tooth comb approach to the Commissioner's decision. Ground 4 should be rejected. Ground 4 consideration 1. Ground 4 focusses on two words in a paragraph in the Commissioner's conclusions at [87]. Applying a fine-tooth comb to reasons is impermissible, as identified in most s 56A appeals, including Hoy at [11] and Arrage at [63]. The Commissioner's judgment must be read fairly in context: Hoy at [11]. I agree with the Council's submissions set out at [62] above as these correctly reflect the necessary reading of the Commissioner's reasons as a whole. 2. Further, any error of law must be vitiating to be relevant on appeal. Reading the consideration of the Commissioner as a whole does not suggest that any error in the application of Moto would be vitiating. I consider this ground is really an attempt to review the merit assessment the Commissioner was undertaking, an impermissible matter in a s 56A appeal. 3. This ground of appeal fails. 4. The Appellant is unsuccessful in this appeal and it will be dismissed. The usual approach in a Class 1 merits appeal is that each party pays their own costs in the absence of disentitling conduct, given the provisions of r 3.7(2) of the Land and Environment Court Rules 2007 whereby no costs orders are made unless fair and reasonable to do so. While Class 1 proceedings, this s 56A appeal concerns errors of law. Costs generally follow the event given r 3.7(3)(a)(i) and (ii) so that in the absence of disentitling conduct of the Council (the Court is not aware of any) it should obtain the benefit of a costs order in its favour. I will so order. Order 1. The Court orders: 1. The appeal pursuant to s 56A of the Land and Environment Court Act 1979 dated 4 July 2019 is dismissed. 2. The Appellant is to pay the Council's costs of this appeal. 3. The exhibits are returned. 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: 26 May 2020