Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Ku-ring-gai Council v Buyozo Pty Ltd [2021] NSWCA 177 Hearing dates: 26 July 2021 Date of orders: 13 August 2021 Decision date: 13 August 2021 Before: Basten and Payne JJA at [1]; Preston CJ of LEC at [17] Decision: (1) The appeal is upheld. (2) The orders of the Land and Environment Court made on 6 January 2021 are set aside. (3) In lieu thereof: (a) The appeal to the Land and Environment Court is dismissed. (b) Application number MOD007/19 to modify development consent DA0122/17 granted on 30 April 2018 is refused. (4) The respondent is to pay the appellant's costs of the appeal to this Court. Catchwords: ENVIRONMENT AND PLANNING – consent – application to modify consent – condition of consent requiring payment of monetary contribution – power to reduce contribution – no change to development – contribution paid in full – calculation of contribution – construction of "gross floor area"– loading areas excluded – only loading areas in approved plans excluded – no utility in modification Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW), ss 1.5, 4.1, 4.2, 4.3, 4.15, 4.16, 4.17, 4.55, 4.56, 4.59, 7.11, 7.13, 8.7 Environmental Planning and Assessment Regulation 2000 (NSW), cl 115 Interpretation Act 1987 (NSW), s 33 Ku-ring-gai Local Environmental Plan 2015 Land and Environment Court Act 1979 (NSW), ss 34, 57 Uniform Civil Procedure Rules 2005 (NSW), r 36.17 Cases Cited: 1643 Pittwater Road Pty Ltd v Pittwater Council [2004] NSWLEC 685 Agricultural Equity Investments Pty Ltd v Westlime Pty Ltd (No 3) [2015] NSWLEC 75 Ainsworth v Criminal Justice Commission (1992) 175 CLR 564; [1992] HCA 10 Baulkham Hills Shire Council v Wrights Road Pty Ltd (2007) 153 LGERA 219; [2007] NSWCA 152 Colins v South Australia (1999) 74 SASR 200; [1999] SASC 257 David Securities Pty Ltd v Commonwealth Bank of Australia (1992) 175 CLR 353; [1992] HCA 48 Frevcourt Pty Ltd v Wingecarribee Shire Council (2005) 139 LGERA 140; [2005] NSWCA 107 Gardner v Dairy Industry Authority (NSW) (1977) 52 ALJR 180 GPT Re Ltd v Belmorgan Property Development (2008) 72 NSWLR 647; [2008] NSWCA 256 Kendall Street Development Pty Ltd v Byron Shire Council (No 2) (2004) 138 LGERA 360; [2004] NSWLEC 530 King v Bathurst Regional Council (2006) 150 LGERA 362; [2006] NSWLEC 505 Maitland City Council v Anambah Homes Pty Ltd (2005) 64 NSWLR 695; [2005] NSWCA 455 Meriton Apartments Pty Ltd v City of Sydney Council (2011) 80 NSWLR 156; [2011] NSWCA 17 Minister Administering the Crown Lands Act v Bathurst Local Aboriginal Land Council (2009) 166 LGERA 379; [2009] NSWCA 138 Mirvac Projects Pty Ltd v Ku-ring-gai Council and Inglis (2007) 159 LGERA 151; [2007] NSWLEC 540 North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468; [1998] NSWSC 163 North Sydney Council v Moline [2008] NSWLEC 57 Peter Duffield & Associates v Canada Bay Council (2002) 124 LGERA 349; [2002] NSWLEC 168 Ryde Municipal Council v Royal Ryde Homes [1970] 1 NSWLR 277 Sydney Water Corporation v Caruso [2009] NSWCA 391 Thaina Town (On Goulburn) Pty Ltd v Sydney City Council (2007) 71 NSWLR 230; [2007] NSWCA 300 Willoughby City Council v Dasco Design and Construction Pty Ltd (2000) 111 LGERA 422; [2000] NSWLEC 275 Windy Dropdown Pty Ltd v Warringah Council (2000) 111 LGERA 299 Category: Principal judgment Parties: Ku-ring-gai Council (Appellant) Buyozo Pty Ltd (Respondent) Representation: Counsel: Mr S Free SC with Ms Z Heger (Appellant) Mr I Hemmings SC with Ms R McEwen (Respondent) Solicitors: Wilshire Webb Staunton Beattie Lawyers (Appellant) Reid & Vesely Solicitors (Respondent) File Number(s): 2021/28533 Decision under appeal Court or tribunal: Land and Environment Court Jurisdiction: Class 1 Citation: [2021] NSWLEC 2 Date of Decision: 06 January 2021 Before: Pepper J File Number(s): 2019/244851 [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] HEADNOTE [This headnote is not to be read as part of the judgment] Buyozo Pty Ltd (Buyozo) constructed and is using a building for storage premises and separate commercial premises in accordance with a development consent granted by the Land and Environment Court. Condition 30 of the development consent, imposed under s 7.11(1) of the Environmental Planning and Assessment Act 1979 (EPA Act), required the payment of a monetary contribution. Condition 30 was determined in accordance with the Ku-ring-gai Contributions Plan 2010 (Contributions Plan). The Contributions Plan provided an applicable rate for a building used for "business" per square metre of gross floor area. Buyozo paid the full amount of the contribution to the Ku-ring-gai Council (the Council). After Buyozo had completed construction of the building and commenced use of the building, Buyozo applied to the Council to modify the development consent by amending condition 30 to reduce the amount of contribution. Following a deemed refusal of its modification application, Buyozo appealed to the Land and Environment Court. The primary judge upheld the appeal and approved the modification of the development consent by amending condition 30 to substitute $674,151.05 as the amount of contribution payable for the amount of $987,242.37 stated in the original condition. The questions for the Court of Appeal included: (i) Whether the primary judge erred in concluding that there was power under s 4.55 of the EPA Act to modify condition 30, in circumstances where that condition required the payment of a contribution and that contribution had been paid by the time required under condition 30 such that the condition had been complied with and had no ongoing operation; (ii) Whether the primary judge misconstrued paragraph (h) of the definition of "gross floor area" in the Ku-ring-gai Local Environmental Plan 2015 or erred in deciding, on the facts as found, that the area comprising the corridors in the building was for the purposes of paragraph (h) an area of access to space used for the loading or unloading of goods; and (iii) Whether the primary judge erred in concluding that there was utility in modifying condition 30 on the three bases given in the judgment: first, that there was "public utility in correctly calculating the 'gross floor area' upon the proper construction of that term in the LEP"; secondly, that the modification of condition 30 would oblige the Council to "take the overpayment into account prior to the imposition of any condition in respect of any future development application"; and third, that "the overpayment may also give rise to an equitable claim, such as that of unjust enrichment, albeit in another suit in another court". The Court upheld the appeal and held: In relation to (i) Per Basten and Payne JJA: (1) The proposed modification had no environmental, or any other, effects. There was therefore no proposal to modify the development. The same building (which had already been completed) was to be used for the same purpose (which was its current use). Modification under s 4.56(1) is only available where some change is proposed with respect to the development for which consent was granted: at [10], [11]. Per Preston CJ of LEC: (2) There was no power to modify the development consent to amend condition 30 in circumstances where the contribution had already been paid. A condition of consent imposed either on the grant of development consent or the modification of the development consent has the essential characteristic of requiring the doing or refraining from doing something in the future. A condition of consent can never be imposed so as to require the doing of something retrospectively but rather only to do something prospectively: at [43]-[45]; and (3) A modification under s 4.56(1) of the EPA Act must effect some change to the development. Substituting a lesser amount for a greater amount of the monetary contribution could not effect any change to the development. In this circumstance, the preconditions to the exercise of the power in s 4.56(1) could have no application and s 4.56(1) was not an available source of power to modify the development consent: at [52], [64]. In relation to (ii) Per Preston CJ of LEC, Basten and Payne JJA agreeing: (4) The only areas within the building that could properly be characterised as being spaces used for the loading or unloading of goods within paragraph (h) of the definition of gross floor area are the areas that have been approved by the development consent for that activity. The inquiry demanded by paragraph (h) of the definition of gross floor area is to identify the area within the building as a whole used for the loading or unloading of goods for the purpose authorised by the development consent: at [84], [86], [89]. In relation to (iii) Per Preston CJ of LEC, Basten and Payne JJA agreeing: (5) There is no public utility in the modification of condition 30. Neither does condition 30 as originally granted reveal nor would condition 30 as modified reveal anything on its face about how the amount of contributions required to be paid by the condition had been calculated: [95]; (6) The payment involved the provision of a benefit as a condition of the grant of development consent within the terms of s 7.11(6)(a). Any subsequent modification of condition 30 cannot change this fact because first, the modification of a development consent only operates prospectively and secondly, the modification could not cause the payment of the monetary contribution that was required by the condition before it was modified to become a payment under the condition as modified: at [101], [102], [103]; (7) Both parties accepted that a restitutionary claim would not be available. Even if Buyozo had an arguable restitutionary claim, this possibility did not give utility to the proposed modification of condition 30: [105], [107]. Judgment 1. BASTEN and PAYNE JJA: The primary question raised on this appeal is whether there is power to modify a development consent to reduce the amount of a contribution paid, as a condition of the grant of consent, to the Council to cover the increased demand for public amenities and public services caused by the development. In particular, can such a condition be modified after the amount has been paid in full and after the development has been completed? 2. A second question was whether the developer was correct in its assertion that the contribution had been wrongly calculated, based on the gross floor area of the commercial premises used for storage of goods. 3. There was also a third question. Assuming that the Court had power to vary the condition, and that the error relied upon by the developer was established, was there utility in granting the modification? In circumstances where the developer accepted that it had no legal entitlement to recover any overpayment, the Council submitted that a modification would lack utility. 4. Following a deemed refusal of its modification application, the respondent, Buyozo Pty Ltd, brought an appeal in the class 1 jurisdiction of the Land and Environment Court. In a judgment delivered on 6 January 2021, Pepper J held that (i) there was power to modify the payment, (ii) the developer's calculation based on the gross floor area was correct, and (iii) granting the modification would have utility. [1] We agree with Preston CJ of LEC that the primary judge was in error in each respect. Power to modify a consent 1. Having read the transcript of the hearing before the primary judge, it is clear that inadequate consideration was given to the question of power. As a result, it was unfortunate, but unsurprising, that little attention was paid to the question in the judgment below. The totality of the reasoning in this respect was as follows: "[37] It was agreed that the Court had jurisdiction to vary a condition under s 7.11 of the EPAA even after though the contributions had been paid (Arncliffe Development Pty Ltd v Rockdale City Council [2003] NSWLEC 297; (2003) 129 LGERA 189 at [11]-[12]). [38] There is also no doubt that the Court has the power to modify condition 30 pursuant to s 4.55 of the EPAA. There is no relevant statutory limit on the exercise of that power other than the question of whether the development as modified will be 'substantially the same', which it was agreed is not an issue in this appeal." 1. The primary judge understood that the application was made under s 4.55 of the Environmental Planning and Assessment Act 1979 (NSW) ("the Planning Act"). Section 4.55 relevantly reads as follows: 4.55 Modification of consents—generally (cf previous s 96) (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. … (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. … (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. 1. The consent in the present case was in fact granted by the Court pursuant to an agreement reached between the parties under s 34(3) of the Land and Environment Court Act 1979 (NSW). In effect, the modification required a variation of that agreement and of the consequent court order. However, despite the terms of s 4.55(8), (permitting the court to modify a consent granted by it) the parties in this Court were agreed that the reference by the primary judge to s 4.55 was in error. That appears to have been because the application for a modification was originally made to the Council, although the effect of that is not clear. As little attention was paid to those matters, either in the Court below or in this Court, it is not necessary to consider whether the powers conferred under s 4.55 were available in such a case. As senior counsel for the developer relied upon s 4.56 in the course of submissions in the Land and Environment Court, [2] it is sufficient to focus on that provision, although the previous section forms part of the statutory context. Section 4.56 relevantly reads: "4.56 Modification by consent authorities of consents granted by the Court (cf previous s 96AA) (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 (b) it has notified the application in accordance with— (i) the regulations, if the regulations so require, and (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 (c) it has notified, or made reasonable attempts to notify, each person who made a submission in respect of the relevant development application of the proposed modification by sending written notice to the last address known to the consent authority of the objector or other person, 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. (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. (1B) (Repealed) (1C) 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. (2) After determining an application for modification of a consent under this section, the consent authority must send a notice of its determination to each person who made a submission in respect of the application for modification. … 1. It is possible that lack of attention was given to the scope of the power conferred by these sections because of an assumption that the verb "modify" permitted any kind of change to a document identified as a "development consent", and at any time. If so, that approach would have ignored fundamental principles of statutory interpretation, including reading the word in its context and adopting a construction that would promote the purpose or object underlying the provisions: Interpretation Act 1987 (NSW), s 33. The correct approach leads to a quite a different conclusion. 2. First, s 4.55(1) may be put to one side: it was not engaged in the present case and was not invoked by the respondent. It is a form of "slip rule" commonly available to correct minor errors in court judgments. [3] 3. Secondly, although both sections speak of modifying a development consent, the conditions for the exercise of the power demonstrate that it is "the development to which the consent as modified relates" which is modified: s 4.56(1). The development (as modified) must be "substantially the same development" as that for which consent was originally granted: s 4.56(1)(a). Under s 4.55(1A)(a), the proposed modification is to be "of minimal environmental impact". To similar effect, in determining an application for modification the consent authority "must" take into consideration the matters referred to in s 4.15(1) "as are of relevance to the development". Because the proposed modification had no environmental, or any other, effects, that exercise was otiose. In fact, there was no proposal to modify or change in any way the development to which consent had been granted. The same building (which had already been completed) was to be used for the same purpose (which was its current use). 4. To say that the development proposed to be modified will be not merely substantially the same as, but identical with, the existing development, so that none of the factors identified in s 4.15(1) is engaged and the modification should therefore be granted, is to miss the point. The question of statutory construction is not answered by having regard to the circumstances of the particular case. The point is rather that s 4.56(1), read as a whole, demonstrates that a modification is only available where some change is proposed with respect to the development for which consent was granted. None was proposed in the present case, so that the power to modify was not engaged. 5. This reasoning is supported by the absence from the sections conferring the power of any timeframe within which an application for modification can be made. That absence is telling: it implies that a consent can only be modified in respect of steps which have not been undertaken, or at least not completed. By way of contrast, where the validity of the consent is in question, a time limit is provided. Section 4.59 states: 4.59 Validity of development consents and complying development certificates (cf previous s 101) If public notice of the granting of a consent or a complying development certificate is given in accordance with the regulations by a consent authority or a certifier, the validity of the consent or certificate cannot be questioned in any legal proceedings except those commenced in the Court by any person at any time before the expiration of 3 months from the date on which public notice was so given. There was no challenge to the validity of the consent (or the condition) in the present case. 1. The temporal consideration is raised only as a matter of statutory construction. It is not necessary to determine when precisely the developer could no longer seek to modify the condition requiring a payment of the kind provided for by s 7.11 of the Planning Act. Indeed, the conclusion that the power in s 4.56 is not in any event engaged, renders that exercise inappropriate. Other matters 1. This reasoning is sufficient to dispose of the appeal: the decision below must be set aside on the basis that the Court lacked power to deal with the application otherwise than by dismissing it. The application was misconceived. Nevertheless, for the reasons given by Preston CJ of LEC, there was no error in the calculation of the monetary contribution. Curiously, evidence in the form of a video recording was tendered, apparently to indicate the way in which the premises were actually used by customers. How that evidence could have been relevant to the characterisation of the gross floor area, in accordance with the definition in the Ku-ring-gai Local Environmental Plan 2015, is obscure and may have led to error in the characterisation exercise. 2. We also agree with Preston CJ of LEC in relation to the third issue, namely the lack of utility of the relief sought. That reasoning can be deployed to support the conclusion that the Court had no power to grant the relief sought. 3. Accordingly, we agree that the appeal should be allowed with costs and the orders made by the primary judge set aside. The only available course open to the judge was to dismiss the application; that order should also be made. 4. PRESTON CJ OF LEC: The appeal concerns the availability and application of the power to modify development consents under the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) to amend a condition requiring the payment of a monetary contribution after the contribution has been paid. The application to modify a contributions condition 1. Buyozo Pty Ltd (Buyozo) has constructed and is using a building at 3-5 West Street and 28 Bridge Street, Pymble for storage premises and separate commercial premises in accordance with a development consent granted by the Land and Environment Court on 30 April 2018. Condition 30 of the development consent required the payment of a monetary contribution in the amount of $987,242.37. Condition 30 was imposed under s 7.11(1) of the EPA Act. 2. As required by s 7.13(1), the condition requiring the payment of the monetary contribution was of a kind allowed by, and was at the time of the grant of consent considered to be determined in accordance with, the Ku-ring-gai Contributions Plan 2010 (Contributions Plan). The Contributions Plan provided that the applicable rate for a building in the Pymble Town Centre and Pymble Business Park used for "business" was $92.74 per square metre of gross floor area. By the time of the grant of consent, that rate had risen by indexation to $113.84. There was a separate rate for a building used for retail. The amount of $987,242.37 was calculated by multiplying the indexed rates for business and retail by the gross floor area within the building used for business and retail respectively, less a credit for the existing business floor area. 3. Condition 30 required the contribution to be paid to Ku-ring-gai Council (the Council) prior to the issue of any construction certificate. Buyozo paid the full amount of the contribution to the Council by the required date, which was before the issue of a construction certificate for the carrying out of the development. That amount was paid into the Council's contributions account and has been mixed with all of the monies received by the Council in that account. Buyozo subsequently completed construction of the building and commenced use of the building for storage premises and commercial premises. 4. On 17 January 2019, Buyozo applied to the Council to modify the development consent by amending condition 30 to reduce the amount of contribution required by that condition. The application itself identified the source of power to modify the development consent as being s 4.55(1) of the EPA Act and described the modification as being to correct a "miscalculation of section 94 contributions". The Statement of Environmental Effects (SEE) that accompanied the modification application identified a different source of power to modify the development consent, being s 4.56 of the EPA Act. The SEE stated that the application had been made under s 4.56 as s 4.56(1) allowed the Council to modify the development consent granted by the Court. The SEE contended that the amount of the contribution should be reduced by $327,162.84 from the amount provided within condition 30 of $987,242.37. This reduction was based on a recalculation of the gross floor area of the building used for business. The definition of "gross floor area" in the Dictionary to Ku-ring-gai Local Environmental Plan 2015 (KLEP) excludes from the calculation of gross floor area, among other areas, "any space used for the loading or unloading of goods, including access to it" (paragraph (h) of the definition of gross floor area). 5. The SEE contended that the gross floor area used in the calculation of the amount of the contribution required by condition 30 "included the spaces used for the loading and unloading of goods (ie the aisles between the storage racks)". The "storage racks" referred to were the individual, self-storage units that customers can rent for the storage of their goods. The approved storage premises is in a six-storey building, with self-storage units on each level, two separated carparks on levels 1 and 2, the lower one accessed off West Street and the higher one accessed off Bridge Street, and two separately identified loading areas within parts of the carparks. Access between the carparking and loading areas on levels 1 and 2, and the self-storage units on levels 3 to 6, is provided by stairwells and lifts. 6. The carparking areas, loading areas within the carparks, stairwells and lifts had all been excluded from the calculation of the amount of the contribution payable under condition 30, under various exemptions in the definition of gross floor area. 7. The SEE's contention was that further areas should be excluded, being the aisles or corridors between the self-storage units, on the basis that these are spaces that are "used for the loading and unloading of goods" or provide access to such spaces. The SEE calculated that if these areas are excluded from the gross floor area, the gross floor area for business would be reduced from the 11,131sqm used for the calculation of the contribution in condition 30 to 8,248sqm, a reduction of 2,883sqm. Applying the business rate applicable at the time of the grant of consent of $113.48, this would reduce the amount of contributions payable by $327,162.84. The appeal to the Land and Environment Court 1. On 7 August 2019, Buyozo appealed to the Land and Environment Court, under s 8.9 of the EPA Act, against the Council's deemed refusal of Buyozo's modification application. Buyozo's appeal, which was in Class 1 of the Court's jurisdiction, was heard by Pepper J. 2. The primary judge upheld the appeal and approved the modification of the development consent by amending condition 30 to substitute $674,151.05 as the amount of contribution payable for the amount of $987,242.37 stated in the original condition: Buyozo Pty Limited v Ku-ring-gai Council [2021] NSWLEC 2. The appeal to this Court 1. The Council has appealed, under s 57 of the Land and Environment Court Act 1979 (NSW) (the Court Act), against the primary judge's decision and orders. The appeal is limited to questions of law. The Council raises six grounds of appeal, falling into three categories: 1. the primary judge erred in concluding that there was power under s 4.55 of the EPA Act to modify condition 30, in circumstances where that condition required the payment of a contribution and that contribution had been paid by the time required under condition 30 such that the condition had been complied with and had no ongoing operation (ground 1) (the modification power ground); 2. the primary judge misconstrued paragraph (h) of the definition of "gross floor area" in the KLEP or erred in deciding, on the facts as found, that the area comprising the corridors in the building was for the purposes of paragraph (h) an area of access to space used for the loading or unloading of goods (grounds 2 and 3) (the misconstruction of gross floor area grounds); and 3. the primary judge erred in concluding that there was utility in modifying condition 30 on the three bases given in [43] of the judgment (grounds 4, 5 and 6) (the utility in modification grounds). 1. I have determined that the Council should succeed on all three sets of grounds: the Council did not have power to modify condition 30 as sought by Buyozo; the primary judge misconstrued and misapplied the definition of gross floor area and erroneously excluded the corridors between the self-storage units from the gross floor area; and the primary judge erred in the reasons she gave for finding that there was utility in modifying condition 30 of the development consent. The appeal to this Court should therefore be upheld. As there was no power for the Court below to approve Buyozo's modification application, the only order open to the Court below would be to dismiss Buyozo's appeal. The Court should make this order. Buyozo should be ordered to pay the Council's costs of the appeal to this Court. The modification power ground 1. The Council's first ground is that the Court, exercising the function of the consent authority (which is the Council), did not have power to modify the development consent by amending condition 30, in circumstances where the contribution that was required to be paid, had been paid by the time the application to modify the development consent was lodged. 2. The Council noted that condition 30 was imposed under s 7.11(1) of the EPA Act, which empowers the consent authority to impose a condition "requiring…the payment of a monetary contribution". Condition 30 required the payment of a monetary contribution, in the amount specified, prior to the issue of the construction certificate. Once the contribution was paid in accordance with the condition by the required time, the condition had no further operation or effect. 3. The Council submitted that the power to modify a development consent, variously in s 4.55 or s 4.56 of the EPA Act, is only available in respect of a condition of development consent that has an ongoing operation or effect. The Council submitted that this becomes clear when regard is had to the preconditions to the exercise of the power. If the power to modify the development consent sought to be exercised in this case was under s 4.56(1), as the SEE asserted it was, the preconditions included that the development to which the consent as modified relates is substantially the same development for which the consent was originally granted and before that consent as originally granted was modified (s 4.56(1)(a)); the consent authority has notified the application as required (s 4.56(1)(b)); the consent authority has notified or made reasonable attempts to notify persons who made a submission in respect of the original development application, as required (s 4.56(1)(c)); and the consent authority has considered any submissions made concerning the proposed modification (s 4.56(1)(d)). 4. The Council submitted that these preconditions to the exercise of the power contemplated that both the condition to be modified has some operation or effect and the modification itself will have some operation or effect. Otherwise, there would be no point in the legislature imposing such preconditions to the exercise of the power. What s 4.56(1) does not contemplate is that all of these processes would be followed in respect of a condition that has already been complied with, such that the modification of the condition will not have any actual impact on what the applicant is required to do or not to do. 5. The Council submitted that the primary judge erred in finding otherwise. The primary judge's reliance on her earlier decision in Agricultural Equity Investments Pty Ltd v Westlime Pty Ltd (No 3) [2015] NSWLEC 75 (Westlime), that the concept of a development consent being "spent" is not known to law and is contrary to existing authority (at [40]), was misplaced. The Council submitted that it was not contending that the development consent itself was spent or that the development which the development consent authorised to be carried out had been carried out, so that there was no longer any development that the development consent could authorise to be carried out. That might have been the argument in Westlime, but it was not the argument the Council was putting. Instead, the Council contended that condition 30 could no longer require the payment of a contribution once the contribution had been paid in accordance with the condition. 6. Buyozo disputed the Council's submission that there was no power to modify condition 30 once it had been complied with. It gave five reasons, four of which are relevant. 7. First, there is nothing in the text of s 4.56 which distinguishes between a condition which has ongoing operation and one which does not. Secondly, the power to modify a development consent under s 4.56 (or s 4.55) should not be construed as being preconditioned on an inquiry as to whether a particular condition has ongoing operation or effect. Thirdly, the concept of a development consent being spent or exhausted is not a concept known to law and is contrary to existing authority, as the primary judge held. No relevant distinction is to be drawn between a consent and the conditions of the consent. The conditions of a consent do not have operation independently from the consent. Fourthly, a condition of consent may be modified even when the applicant is in breach of a condition: Windy Dropdown Pty Ltd v Warringah Council (2000) 111 LGERA 299 at 440-441. In such a case, the effect of the modification is to authorise what has already occurred, although the authorisation operates prospectively and not retrospectively. 8. I uphold the Council's argument that there was no power to modify the development consent to amend condition 30 in circumstances where the contribution required by condition 30 had already been paid. There are two reasons for the lack of power, one related to the power to modify a development consent generally and the other related to the particular power that the primary judge was exercising on the appeal. 9. Starting with the general, although the modification of a development consent is taken not to be the grant of a development consent (s 4.55(4) and s 4.56(1C) of the EPA Act), the modification of a development consent shares with the grant of a development consent the essential characteristic of only operating prospectively so as to authorise the doing of something in the future. A development consent authorises the carrying out of development. The concept of development has expanded since the enactment of the EPA Act but it has always involved, and still does involve, the doing of something in the future. The current definition of development in s 1.5(1) of the EPA Act includes the use of land, the subdivision of land, the erection of a building, the carrying out of a work and the demolition of a building or work. These are all acts to be done in the future. 10. Division 4.1 of Part 4 of the EPA Act regulates the carrying out of development, which an environmental planning instrument provides may be carried out without the need for development consent (s 4.1), may not be carried out except with development consent (s 4.2) or must not be carried out (s 4.3). The grant of a development consent under s 4.16(1)(a) authorises the carrying out of the development for which the consent was sought, or for that development except for some specified aspect or part of that development, or for a specified part or aspect of that development (s 4.16(4)). 11. This essential characteristic of the grant of development consent means that a development consent cannot be granted to authorise development that has already been carried out, such as the erection of a building that has already been erected, the carrying out of a work that has already been carried out or the demolition of a building or work that has already been demolished. A development consent can never retrospectively approve the carrying out of development, but can only prospectively approve the carrying out of development. In the examples given, this would mean that development consent could be given for the use in the future of an already erected building or already carried out works or the use of the land on which a building or work was demolished. 12. This essential characteristic of the grant of a development consent necessarily flows into the modification of a development consent. Whilst the modification of a development consent is not the grant of a development consent, upon modification, the development consent as modified becomes the development consent. This means that the modification of a development consent must result in the development consent operating as a development consent needs to operate and that is to authorise the carrying out of development in the future. For this reason, a development consent as modified can never retrospectively approve, but can only prospectively approve, the carrying out of development: Willoughby City Council v Dasco Design and Construction Pty Ltd (2000) 111 LGERA 422; [2000] NSWLEC 275 at [102]-[105]; Kendall Street Development Pty Ltd v Byron Shire Council (No 2) (2004) 138 LGERA 360; [2004] NSWLEC 530 at [25], [34]-[35]; Mirvac Projects Pty Ltd v Ku-ring-gai Council and Inglis (2007) 159 LGERA 151; [2007] NSWLEC 540 at [35]-[36]; North Sydney Council v Moline [2008] NSWLEC 57 at [68], [70]. 13. Consider the example of a building that has been erected not in accordance with the development consent that authorises the erection of the building. Just as another development consent could not be granted to authorise the erection of the already erected building, so too the existing development consent cannot be modified to authorise retrospectively the erection of the already erected building. However, another development consent could be granted or the existing development consent could be modified to authorise the use of the already erected building in the future. The grant of another development consent or the modification of the existing development consent would not cure the breach of s 4.2(1) of the EPA Act of carrying out the development of the erection of the building not in accordance with the development consent, but either approval would authorise the development of the use of that building in the future. 14. This essential characteristic of both development consents and development consents as modified also defines any condition of consent. Both a development consent and a modification of a development consent can be granted subject to conditions, the power to impose conditions on the grant of development consent is express (s 4.16(1) and s 4.17 of the EPA Act) while the power to impose conditions on the modification of a development consent is implied: North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468 at 475-476; [1998] NSWSC 163; 1643 Pittwater Road Pty Ltd v Pittwater Council [2004] NSWLEC 685 at [41]. 15. Regardless of the source of power to impose a condition, a condition of consent imposed either on the grant of development consent or the modification of the development consent has the same essential characteristic of requiring the doing or refraining from doing something in the future as the development consent itself. This is because a condition of development consent regulates in some way the carrying out of the development authorised by the development consent. This can be seen by having regard to the types of conditions that may be imposed, which are specified in s 4.17(1) of the EPA Act. Each type of condition regulates in some way the carrying out of the development the subject of the development consent. 16. One of the types of conditions is a condition authorised to be imposed under s 7.11 of the EPA Act: see s 4.17(1)(h). Section 7.11 authorises the imposition of a condition requiring the dedication of land free of cost or the payment of a monetary contribution or both, if the consent authority is satisfied that the development for which development consent is sought will or is likely to require the provision of or increase the demand for public amenities or services within the area (s 7.11(1)), or a condition requiring the payment of a monetary contribution towards recoupment of the cost of providing public amenities or public services within the area in preparation for or to facilitate the carrying out of development in the area and the development for which development consent is sought will, if carried out, benefit from the provision of those public amenities or public services (s 7.11(3)). In both instances, the condition requires the doing of something in the future, either the dedication of land or the payment of a monetary contribution, in the carrying out of the development for which development consent is granted. 17. This essential characteristic of a condition of development consent means that a condition of consent can never be imposed so as to require the doing of something retrospectively but rather only to do something prospectively. Thus a condition authorised to be imposed under s 7.11 can only require the dedication of land or the payment of a monetary contribution at some time in the future, not in the past. Equally, a condition of development consent can never be modified so as to require the doing of something retrospectively, but rather only to do something prospectively. Thus, a condition of consent imposed under s 7.11 can be modified if the condition as modified will require the dedication of land or the payment of a monetary contribution in the future, but not if the land or monetary contribution required by the original condition to be dedicated or paid has already been dedicated or paid, as the condition cannot be modified to operate retrospectively. 18. This then is the general constraint on the exercise of the power to modify the development consent in this case. Condition 30 of the development consent, which was imposed under s 7.11 of the EPA Act, required the payment of a monetary contribution in a specified amount by a specified time, being before the issue of a construction certificate. Buyozo complied with the condition, paying the full amount of the contribution required by the condition by the required time. No doubt Buyozo did this in order to obtain a construction certificate so as to be able to carry out the development the subject of the development consent. Once Buyozo paid the contribution in accordance with the condition, the condition had no further work to do – it no longer regulated the carrying out of the development. It thereupon became a condition that was not capable of being modified. 19. Accordingly, there was no power to modify the development consent by amending condition 30 to require the payment in the past of a lesser amount of monetary contributions than the amount of monetary contributions required to be paid by the original condition, which had already been paid. 20. Turning to the particular power sought to be exercised, there was doubt as to the source of power that was being sought to be exercised to modify the development consent. The application form itself ticked the box for s 4.55(1) and described the modification as being to correct the miscalculation of the s 94 contribution. The SEE that accompanied Buyozo's application to modify the development consent identified the power as being s 4.56(1) of the EPA Act. Section 4.56(1) empowers a consent authority, upon application being made to it, to modify a development consent granted by the Court. 21. The primary judge thought the modification application had been made under s 4.55 of the EPA Act (at [12]) and this informed her consideration of the power of the Court on appeal to modify the consent. The primary judge said "there is also no doubt that the Court has the power to modify condition 30 pursuant to s 4.55 of the EPA Act" (at [38]). The primary judge did not identify which of the three powers in s 4.55 she thought the Court would be exercising: the power to correct a minor error, misdescription or miscalculation in s 4.55(1), the power to modify a development consent where the proposed modification is of minimal environmental impact (s 4.55(1A)) or the power to modify the consent to effect other modifications (s 4.55(2)). This opacity is not removed by the primary judge's following statement that "there is no relevant statutory limit on the exercise of that power other than the question of whether the development as modified will be 'substantially the same', which it was agreed was not an issue in this appeal" (at [38]). 22. The reference to the development as modified being substantially the same is to the constraint on the exercise of the power to modify a development consent stated in s 4.55(1A)(b) and s 4.55(2)(a) that the consent authority must be "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 before that consent as originally granted was modified (if at all)." 23. The parties on appeal to this Court accepted that, in fact, the power the primary judge was being called upon by Buyozo's application to modify the development consent was the power under s 4.56(1), and not any of the three powers to modify development consent under s 4.55(1), (1A) or (2) and the primary judge made a mistake as to the source of power. The parties accepted, however, that this mistake as to the source of power itself did not work invalidity, because in relevant respects the power and the constraints on the exercise of the power in s 4.56(1) are similar to the power and the constraints on the exercise of the power in s 4.55(1A) or (2). 24. If the power sought to have been exercised was that under s 4.56(1), then it was not in fact available to modify the development consent by amending condition 30 to reduce the amount of monetary contribution specified in the condition. The first reason is the general proposition I have already advanced that a condition cannot be modified to require retrospectively the payment of a lesser amount of contributions than has already been paid. The second reason is a particular proposition relating to the need for a modification under s 4.56(1) of the EPA Act to effect some change to the development the subject of the development consent. 25. The power to modify a development consent has been described as both "beneficial and facultative" and constrained by the terms in which the statutory provisions confer the power. The power has been described as "beneficial and facultative" (Houlton v Woollahra Municipal Council (1997) 95 LGERA 201 at 203 and North Sydney Council v Michael Standley & Associates Pty Ltd at 475, 482) in that, on introduction in the EPA Act, it avoided the necessity for the obtaining of a further development consent to secure a modification of an existing development consent. The power to modify a development consent is supplemental to and does not abrogate "the right to seek to obtain successive development consents in respect of the same land": Progress & Securities Pty Ltd v North Sydney Municipal Council (1988) 66 LGRA 230 at 242. An applicant has the option of either applying to modify a development consent, provided the modification sought falls within the scope of the statutory provision allowing for such modification of a development consent, or applying for a further development consent: AQC Dartbrook Management Pty Ltd v Minister for Planning and Public Spaces [2021] NSWCA 112 at [231]. 26. The beneficial and facultative power to modify a development consent is, however, subject to constraints. The risk of abuse of power is circumscribed by the terms in which the statutory provisions confer the power. There are currently four powers to modify a development consent, three conferred by s 4.55(1), (1A) and (2) and one conferred by s 4.56(1). The terms in which the powers are conferred differ between the statutory provisions imposing different constraints on the exercise of the power conferred. These constraints "provide narrow gateways through which those who invoke the power must first proceed": North Sydney Council v Michael Standley & Associates Pty Ltd at 475. 27. The constraints on the exercise of the four powers vary between the powers and define the type of modification that can be effected by exercise of the powers. The constraints on three of the powers, s 4.55(1A), s 4.55(2) and s 4.56(1), indicate that the modification of the development consent sought needs to effect some change to the development the subject of the development consent, while the constraints on one of the powers, s 4.55(1), indicate to the contrary that no change to the development the subject of the development consent needs to be effected. 28. The most obvious indicator is that three of the powers are subject to the constraint that the repository of the power, the consent authority, is satisfied that the development to which the consent as modified relates is substantially the same as the development for which the consent was originally granted and before that consent as originally granted was modified (if at all) (in s 4.55(1A)(b), s 4.55(2)(a) and s 4.56(2)(a)), while one of them has no such constraint (s 4.55(1)). This is an indicator that the modification of the development consent that is able to be made by exercising the three powers under s 4.55(1A), s 4.55(2) and s 4.56(1) must change in some way the development the subject of the development consent, while the modification of the development consent that is able to be made exercising the power under s 4.55(1) need not change the development the subject of the development consent. 29. These same three powers are subject to other constraints that also indicate that modification of the development consent under these powers must change in some way the development the subject of the development consent. 30. Before the power in s 4.55(1A) can be exercised, the consent authority must be satisfied that the proposed modification is of minimal environmental impact (s 4.55(1A)(a)). Only the carrying out of a development can have an environmental impact. Neither the grant of a development consent subject to conditions nor the modification of a development consent in themselves can have any environmental impact; it is only the carrying out of the development authorised by the development consent or the development consent as modified that can have any environmental impact. The precondition that the consent authority is satisfied that a proposed modification is of minimal environmental impact necessitates a comparison of the environmental impact of the development for which the consent was originally granted with the environmental impact of the development to which the consent as modified relates, and then an evaluation of whether any change in environmental impact can be described as "minimal". That comparison and evaluation can only be undertaken if the modification sought does effect some change to the development the subject of the development consent. 31. Before the powers in s 4.55(1A), s 4.55(2) or s 4.56(1) can be exercised, the consent authority must publicly notify the proposed modification and consider any submissions made concerning the proposed modification (s 4.56(1A)(c) and (d), s 4.55(2)(c) and (d), and s 4.56(1)(b) and (d)). These requirements for enabling public participation indicate that a modification that can be made by the exercise of these powers need to effect some change to the development the subject of the development consent. The public are interested in changes to the development that might result from the modification of the development consent, not mere changes in the terms of the development consent that do not effect any change in the development. For this reason, the power in s 4.55(1), which is limited to correcting a minor error, misdescription or miscalculation in the development consent, is not subject to the constraints to which the other powers in s 4.55(1A), s 4.55(2) and s 4.56(1) are subject, including the requirements to publicly notify the proposed modification and to consider any submissions made concerning the proposed modification. 32. Similarly, the power in s 4.56(1) is subject to the constraint that the consent authority has notified, or made reasonable attempts to notify, each person who made a submission in respect of the relevant development application of the proposed modification (s 4.56(1)(c)). This requirement enabling public participation is another indicator that the modification that can be made in the exercise of this power needs to effect some change to the development the subject of the development consent. The persons who made a submission in respect of the original development application objected to the development that was proposed in that development application and the purpose of notifying these persons of the proposed modification is to provide them with the opportunity to make a submission regarding any change to the development that would result from the proposed modification. If the proposed modification would not change the development, there would be nothing upon which the persons could meaningfully make a submission. 33. This analysis based on the text of the statutory provisions conferring the powers to modify a development consent is supported by the information that cl 115(1) of the Environmental Planning and Assessment Regulation 2000 requires an application for modification of a development consent under s 4.55(1), (1A) or (2) or s 4.56(1) to contain. Clause 115(1) requires an application for modification of a development consent under one of the four powers to provide different information depending on the power that is sought to be exercised. For example, the application is required to contain: "(b) a description of the development to be carried out under the consent (as previously modified), … (e) a statement that indicates either— (i) that the modification is merely intended to correct a minor error, misdescription or miscalculation, or (ii) that the modification is intended to have some other effect, as specified in the statement, (f) a description of the expected impacts of the modification, (g) an undertaking to the effect that the development (as to be modified) will remain substantially the same as the development that was originally approved, … (i) a statement as to whether the application is being made to the Court (under section 4.55) or to the consent authority (under section 4.56)." 1. The application is thereby tailored to fit the power to modify the development consent that is sought to be exercised by providing the information necessary to satisfy the preconditions to the exercise of that power. 2. The upshot of this analysis is that the power in s 4.56(1), as with the powers in s 4.55(1A) and s 4.55(2), can only be exercised to modify a development consent if the modification will effect some change to the development the subject of the development consent. This need not be the only effect of the modification but it must be at least one of the results of the modification of the development consent. 3. Turning to the modification of the development consent sought by Buyozo, it was limited to substituting in condition 30 a lesser amount for a greater amount of the monetary contributions required to be paid by the condition. This modification could not effect any change to the development the subject of the development consent. In this circumstance, the preconditions to the exercise of the power in s 4.56(1) could have no application. If the development is not changed, no question can arise of whether the development as modified is substantially the same development as originally granted; there is no utility in publicly notifying the proposed modification and considering any public submissions on the proposed modification as there is no change to the development in respect of which the public could make submissions; and there is no utility in notifying persons who made submissions on the development the subject of the original development application to invite them to make submissions on the proposed modification, for the same reason. 4. As a consequence, the power in s 4.56(1) was not available to make the modification sought by Buyozo only to amend condition 30 so as to reduce the amount of contributions required to be paid by the condition as modified. 5. The above construction of s 4.55 and s 4.56 does not mean that an applicant has no remedy to amend or delete a condition of development consent imposed under s 7.11 of the EPA Act if such modification does not effect a change to the development the subject of the development consent. There are three remedies. 6. First, the applicant can apply under s 4.55(1) if the modification is only to correct a minor error, misdescription or miscalculation in the development consent. That power would not have been available in this case, as the modification sought by Buyozo did not answer the description of correcting a minor error, misdescription or miscalculation in the development consent granted by the Court. But in other cases, the power might be available. 7. Second, an applicant can appeal against the decision of a consent authority to grant development consent subject to a condition under s 7.11, with which it is dissatisfied, under s 8.7 of the EPA Act. The Court on appeal can ensure that any condition imposed under s 7.11 is of a kind allowed by, and is determined in accordance with, a relevant contributions plan (s 7.13(1)) or can disallow or amend the condition if it is unreasonable in the circumstances of that case (s 7.13(3)). Examples of such an appeal occurred in Rose Consulting Group v Baulkham Hills Shire Council (2003) 58 NSWLR 159; [2003] NSWCA 266 and Lake Macquarie City Council v Hammersmith Management Pty Ltd (2003) 132 LGERA 225; [2003] NSWCA 313. 8. Buyozo could have pursued this option. Buyozo had appealed to the Court against the refusal of its development application and could have contended that the Court should grant development consent subject to a condition under s 7.11 in the terms it later sought in its application to modify the development consent. Buyozo instead entered into an agreement with the Council under s 34 of the Court Act for the Court to grant development consent subject to conditions, including condition 30 in its original form. Buyozo thereby passed up the opportunity to have condition 30 imposed in the terms it later sought in its application to modify the development consent. 9. Third, an applicant can bring judicial review proceedings to declare the invalidity of the condition and its severance from the development consent if the condition is not authorised to be imposed under s 7.11. Examples of such judicial review proceedings are Maitland City Council v Anambah Homes Pty Ltd (2005) 64 NSWLR 695; [2005] NSWCA 455 and King v Bathurst Regional Council (2006) 150 LGERA 362; [2006] NSWLEC 505. 10. For this general reason and this particular reason, the primary judge erred in finding that the Court had power to modify condition 30 in the manner sought by Buyozo in its application to modify the development consents. I uphold ground 1. The misconstruction of gross floor area grounds 1. The second set of grounds of appeal concern the primary judge's misconstruction and misapplication of the definition of "gross floor area". The primary judge accepted Buyozo's argument that the aisles or corridors between each self-storage unit should be excluded from the calculation of gross floor area, as falling within paragraph (h) of the definition of gross floor area. The primary judge variously and inconsistently found that different areas in the building could be used as spaces for the loading and unloading of goods: 1. "The development has several carparks, each of which has a dedicated loading and unloading bay (that was excluded from the GFA and contributions calculation)" (at [17]); 2. "If, as may be accepted, the loading and unloading of goods occurs in the carpark" (at [32]); 3. "It is more than arguable, in my view, that the loading and unloading of goods is also likely to take place in the corridors outside the storage units depending on the size of the goods and the available space in the storage unit and would therefore be exempt from the GFA calculation on this basis alone" (at [32]); and 4. "Whether the goods are unloaded or loaded in the carpark or in the storage units themselves" (at [32]). 1. The primary judge then held that: 1. "The corridors are the areas that provide 'access' to the space used for that activity" (at [32]), being the activity of the loading and unloading of goods; and 2. "Whether the goods are unloaded or loaded in the carpark or in the storage units themselves, the corridors marked in green on the architectural plans provide access to both spaces at the premises where this activity occurs" (at [32] and see also [36]). 1. The Council submitted that the primary judge erred in both identifying the spaces used for loading or unloading of goods, and in characterising the corridors between the spaces as providing access to those spaces. Starting with the spaces, the Council submitted that the primary judge was in error in describing both the self-storage units and the corridors outside the self-storage units as spaces used for the loading or unloading of goods. The self-storage units are the very activity by which the building is put to the purpose of storage premises, which is the subject of the development consent. To exclude the self-storage units from the gross floor area is to exclude the approved use of the building. By the same logic, the corridors outside each self-storage unit cannot be a space used for the loading and unloading of goods, merely because the goods are placed on or picked up from the floor of the corridor before being stored in or removed from the self-storage unit. That activity too is part of how the building is put to the purpose of storage premises. 2. The Council observed that the primary judge's mischaracterisation of the self-storage units and corridors outside the self-storage units as spaces for the loading and unloading of goods flowed from the primary judge's erroneous approach to the characterisation of space that is required by the definition of gross floor area. The primary judge asked whether any given area in the building might, from time to time, be used for a particular activity, such as the loading or unloading of goods, irrespective of whether that activity was one of many activities carried out in that space or whether such activities gave the area its defining character. Taking the corridors for example, the mere fact that people might choose to unload their goods in the corridors before moving them into the self-storage units does not mean that the corridors, properly characterised and considering their function within the building as a whole, are to be characterised as spaces used for the loading or unloading of goods. 3. Accordingly, one of the two spaces to which the primary judge found the corridors provided access, being the storage units and the corridors outside the storage units, cannot be characterised as a space used for the loading or unloading of goods within paragraph (h) of the definition of gross floor area. 4. This leaves the other space to which the primary judge found the corridors provide access, namely the carparks. The Council submitted that the primary judge erred in finding that the corridors provide "access" to the carparks for the purposes of (h) of the definition of gross floor area. The Council noted that the word "access", as used in paragraph (h), refers to an area within the building that provides the access to the space used for the loading or unloading of goods. 5. Even assuming the carparks are spaces for the loading or unloading of goods, as the primary judge found, the corridors do not provide the access to the carparks on levels 1 and 2, only the driveways off West Street and Bridge Street provide that access. This emerges most clearly when one considers the corridors on levels 3 to 6 of the building. There is no carparking on those levels. Access between the carparks on levels 1 and 2 and the self-storage units on levels 3 to 6 requires use of the stairwells or lifts between the levels. The necessity to use such indirect means of travel strains the concept of access. Logically, if the corridors were to be considered access, so too must the stairs and the lifts be considered access. 6. The Council further observed that the logical extension of the primary judge's finding is that the corridors on each level, and the stairs and lifts connecting each level, which all allow access to the carparks on levels 1 and 2, would also be excluded from the gross floor area of the building under paragraph (g) of the definition of gross floor area, as "being access to that carparking". Yet, the primary judge did not so find, for the good reason, the Council submitted, that the corridors, stairs and lifts are not to be classified as "access" to the carparks for the purpose of paragraph (g). For the same reason, the corridors, stairs and lifts are not "access" to the carparks even if they were to be used for the loading or unloading of goods, so as to be characterised as being access to the space used for the loading or unloading of goods. 7. The Council submitted that the primary judge's misconstruction and misapplication of paragraph (h) of the definition of gross floor area was partly due to the primary judge's focus on the use of each self-storage unit, rather than the building as a whole for storage premises. The gross floor area to be calculated was the gross floor area of the building put to the business purpose of storage premises. The exclusions from the gross floor area used for storage premises in the definition are those ancillary areas that are also used for storage premises, such as carparking in paragraph (g) and a space used for loading or unloading of goods in paragraph (h). The relevant inquiry for the purposes of paragraphs (g) and (h) is to identify the areas that provide access to those spaces used for carparking or loading or unloading of goods for the purpose of storage premises. The inquiry is not to identify how customers might travel by the stairs, lifts or corridors between these spaces and any self-storage unit in the building. 8. Buyozo supported the primary judge's characterisation of the corridors as being "access" to the carparks, which are spaces, "used for the loading or unloading of goods" within paragraph (h) of the definition of gross floor area, for the reasons that the primary judge gave. Paragraph (h) simply calls for a process of characterising the space under consideration and whether it will be used for loading or unloading of goods or access to another space used for loading or unloading of goods. As a matter of fact, the corridors do provide access between the self-storage units and the carparks, and the primary judge was correct to so find. Furthermore, the corridors outside the self-storage units are themselves spaces where the loading or unloading of goods is likely to take place, and the primary judge was also correct to so find. 9. Buyozo submitted that the primary judge's analysis is supported by reading paragraph (h) in conjunction with the other paragraphs in the definition. Paragraph (f), for example, requires that, in order to fall within that exclusion, the other areas identified must be "used exclusively for mechanical services or ducting". In contrast, paragraphs (g) and (h) contain no such restriction. Hence, Buyozo argued, the areas used for carparking or loading or unloading of goods, or access to these areas, need not be used exclusively for these activities. 10. I uphold the Council's grounds that the primary judge misconstrued and misapplied the definition of gross floor area. Each of the exclusions from gross floor area, including paragraph (h), do call for characterisation of an area or space within the building to which development consent is granted, but the process of characterisation is not that which the primary judge undertook. It is not an inquiry of ascertaining wherever in the building someone might load or unload goods, or gain access to that space, but rather involves identification of the area within the building that has been approved by the grant of development consent to be used for the loading or unloading of goods, and to access that area. 11. In order to identify these areas, reference needs to be made to the development consent and the plans approved by the consent. In this case, the approved plans do expressly identify the spaces authorised to be used for loading or unloading of goods. On the Level 1 Plan, West Street Level, a space is designated as being for loading by the word "Loading" and the depiction of a truck within an area delineated on three sides by a dashed line, separating the loading area from the carparking area in which carparking spaces with parked cars are shown. Access to the designated loading area is shown to be by the driveway off West Street to the south, with an extension of the driveway to the north of the loading area being designated as a "turning space" to allow trucks to be able to reverse into the loading area. The South-East Elevation depicts and names the "Loading Bay" entrance from West Street. On the Level 2 Ground Floor Plan, Bridge Street, a space is designated as being for loading by the words "Existing Loading Dock Re-used" within an area delineated to the south by a dashed line along the edge of the designated carparking spaces with the cars shown, to the east by an internal wall separating the loading area from the storage premises, and to the north by the external wall of the building and stairwell. Access to the designated loading dock is shown to be by the driveway off Bridge Street to the west. The North-West Elevation to Bridge Street depicts, but does not name, the entrance to the loading dock off Bridge Street. 12. The spaces within the building designated as "Loading" (on Level 1) and "Existing Loading Dock Re-used" (on Level 2) are the only spaces authorised by the development consent to be used for the loading or unloading of goods within the building. If loading or unloading of goods were to be carried out in other areas within the building, including in the areas designated as carparking, the development would be carried out otherwise than in accordance with the development consent, in breach of s 4.2(1)(b) of the EPA Act. 13. The primary judge was therefore in error in characterising any area within the building other than the designated loading areas on levels 1 and 2 as being spaces used for the loading or unloading of goods, including the carparking areas outside of the designated loading areas, the self-storage units, and the corridors outside of the self-storage units. None of these areas are approved by the development consent to be used for the loading or unloading of goods. The only areas within the building that could properly be characterised as being spaces used for the loading or unloading of goods are the areas that have been approved by the development consent for that activity, which are the designated loading area on level 1 and the existing loading dock on level 2. 14. The primary judge's error in characterising the spaces within the building used for loading or unloading of goods vitiates her finding that the corridors provide access to the spaces. Separately, however, the primary judge's finding about access is also flawed. The inquiry demanded by paragraph (h) of the definition of gross floor area is to identify the access to the spaces used for loading or unloading of goods. Here, the spaces used for loading or unloading of goods are only the designated loading areas on levels 1 and 2. Those loading areas will be used by trucks and vehicles, as the depiction of the truck within the loading area on the Level 1 Plan shows. The access for trucks and vehicles to the designated loading areas is only by the driveways off West Street (for the loading area on Level 1) and Bridge Street (for the loading dock on Level 2). The vehicles or trucks cannot use the internal stairs, lifts or corridors within the buildings to access the designated loading areas. 15. It is irrelevant that once goods are unloaded from the truck or vehicle parked within the designated loading area, people may walk carrying their goods to a self-storage unit by the stairs, lifts or corridors, and vice versa. The stairs, lifts and corridors may provide access to and from the self-storage units, but do not relevantly provide access to the designated loading areas. 16. The primary judge's error in characterising the corridors as access to spaces used for loading or unloading of goods flowed not only from her error in characterising each self-storage unit and the corridors outside the self-storage unit as a space for loading or unloading of goods, but also from her error in focusing on the use of each self-storage unit as if it was a separate development rather than on the use of the building as a whole for the purposes of storage premises. The inquiry demanded by paragraph (h), as it is for paragraph (g), of the definition of gross floor area, is to identify the area within the building as a whole used for the loading or unloading of goods (paragraph (h)) or for carparking (paragraph (g)) for the purpose authorised by the development consent, here, storage premises. Once this is recognised, not only the areas authorised to be used for the loading or unloading of goods or for carparking, but also the areas that provide access to these authorised areas, can readily be identified. In this case, they are the areas I have described on levels 1 and 2. No area outside of these areas is authorised to be used for these activities and hence can be characterised as being an area falling within paragraph (h) as a space used for loading or unloading of goods or access to it, or paragraph (g) as carparking or access to that carparking. 17. For these reasons, the primary judge erred in finding that the corridors fell within the exception in paragraph (h) of the definition of gross floor area. This was the only basis for the primary judge modifying condition 30 so as to reduce the amount of monetary contributions required to be paid by that condition. The primary judge's errors are material and vitiate her decision. I uphold grounds 2 and 3. The utility of modification grounds 1. The third set of grounds of appeal concern the primary judge's refusal to exercise her discretion to decline to approve the modification of the development consent by reducing the amount of the monetary contributions payable under condition 30. The Council had argued that there was no utility in modifying the condition after it had already been complied with. The primary judge disagreed, giving three reasons why she thought the modification would have utility. The Council contended that the primary judge erred in all three reasons. 2. The first reason the primary judge gave was that "there is public utility in correctly calculating the 'gross floor area' upon the proper construction of that term in the LEP", as the primary judge considered that there is "undeniable utility in the modification of a condition of consent to properly reflect and give effect to the operation of the Contributions Plan" (at [43(a)]). 3. The Council submitted that this conclusion elides the merits of the application with the question of the utility of the modification. The merits turn on the question of whether the contributions had been calculated in accordance with the provisions of the Contributions Plan, which in turn depended on the floor area used for loading or unloading of goods and access to that area that should be excluded from the calculation of gross floor area. It was a separate question whether, in the exercise of the Court's discretion, condition 30 should be modified if it be found that the contributions had not been calculated in accordance with the provisions of the Contributions Plan. This separate question is not to be answered by simply pointing out that Buyozo had succeeded on the merits. Rather, this question required determining whether approving the modification would "produce no foreseeable consequence for the parties" (Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 582; [1992] HCA 10, citing Gardner v Dairy Industry Authority (NSW) (1977) 52 ALJR 180 at 188-189) or whether it is capable of giving the parties any "practical relief" (Collins v State of South Australia (1999) 74 SASR 200; [1999] SASC 257 at [49]). 4. Buyozo sought to uphold the primary judge's first reason by pointing out that development consents are public documents that run with the land. Buyozo invoked the statement in Ryde Municipal Council v Royal Ryde Homes [1970] 1 NSWLR 277 at 279 that "it must not be overlooked that a consent to the development of land under a prescribed planning scheme is not personal to the applicant but endures for the benefit of subsequent owners and occupiers, and in some respects a consent is equivalent to a document of title". Given this nature of a development consent, Buyozo submitted that there is public utility in ensuring that the conditions contained in a development consent accurately reflect the relevant environmental planning instrument and contributions plan pursuant to which the development consent was granted. 5. I find the primary judge erred as the Council has contended. The relevant utility that the primary judge needed to ascertain was that which would result from modifying the development consent to reduce the amount of monetary contributions required to be paid by condition 30 after the contributions had already been paid. There was no public utility in modifying the condition so that it was determined in accordance with gross floor area in KLEP or the Contributions Plan. The reason is that condition 30 of the development consent, even accepting that the consent is a public document, reveals nothing on its face about how the amount of contributions required to be paid by the condition had been calculated. Any person inspecting the development consent could not know from the terms of the development consent the gross floor area that had been used, including what areas had been excluded from the gross floor area of the building, to calculate the amount of contributions payable. The proposed modification of the development consent would not be any more revealing. The only modification proposed was to substitute a lesser amount for the greater amount of contributions required to be paid under the condition. The condition as modified would still not reveal how the substituted amount had been calculated, including how the gross floor area on which the revised calculation was based had been derived. The public utility in the modification of condition 30 is non-existent. I uphold ground 6. 6. The primary judge's second reason was that the modification of condition 30 to substitute a lesser amount for the greater amount of monetary contributions required to be paid by the condition, in circumstances where Buyozo had already paid the greater amount, would oblige the Council to "take the overpayment into account prior to the imposition of any condition in respect of any future development application (see s 7.11(1), (3) and (6) of the EPA Act)" (at [43(b)]). 7. Section 7.11(6), on which the primary judge relied, requires a consent authority, who is proposing to impose a condition made under s 7.11(1) or (3) in respect of development, to take into consideration any land, money or other material public benefit that the applicant has elsewhere dedicated or provided free of cost within the area (or any adjoining area) or previously paid to the consent authority, other than "a benefit provided by a condition of the grant of development consent under this Act" or a benefit excluded from consideration under s 7.4(6). The primary judge thought that the modification of condition 30 would have the legal effect that the payment by Buyozo of the greater amount required by condition 30 rather than the lesser amount required by the condition as modified, would mean that the payment of the difference between the greater and lesser amounts – the so called overpayment – would not be a benefit provided as a condition of the grant of development consent, as the condition had been modified to not require the payment of this difference. 8. The Council submitted that the fundamental error in the primary judge's reasoning is that the modification of a development consent only operates prospectively, not retrospectively: North Sydney Council v Moline at [68]-[70]. At the time Buyozo paid the greater amount required by the original condition 30, that payment was a benefit provided to the Council as a condition of the grant of development consent, within s 7.11(6)(a). The modification of condition 30 to substitute a lesser amount for the greater amount of monetary contributions required to be paid cannot change this fact. 9. The consequence is that the proposed modification of condition 30 could not cause the payment of the difference between the greater amount required by the original condition and the lesser amount required by the condition as modified to cease to be a benefit provided as a condition of the grant of development consent within the exception in s 7.11(6)(a). Thus, contrary to the primary judge's finding, the Council would not be required to take the "overpayment into account" prior to the imposition of any condition in respect of any future development application. 10. Buyozo sought to support the primary judge's reasoning by relying on the operation of s 4.56(1C), that, upon the modification of a development consent, "a reference in this or any other Act to a development consent includes a reference to a development consent as so modified". Buyozo submitted that this requires the reference to "development consent" in s 7.11(6)(a) to be read as the development consent as modified. In this way, the only benefit that would be excluded under s 7.11(6)(a) would be a benefit provided as a condition of the development consent as modified, which Buyozo submitted would be the payment of the lesser amount, and the payment of the difference between the greater and lesser amounts would not be a benefit provided as a condition of the development consent as modified. 11. I find the primary judge erred, as the Council has contended. As a matter of fact, Buyozo paid the greater amount required by condition 30 of the development consent as originally granted. At the time of payment, this involved the provision of a benefit as a condition of the grant of development consent within the terms of s 7.11(6)(a). Any subsequent modification of condition 30 cannot change this fact for two reasons. 12. First, the modification of a development consent only operates prospectively, not retrospectively. The proposed modification of condition 30 could only operate from the date of the modification, and could not be backdated. This means that s 7.56(1C) has no relevant operation with regard to s 7.11(6)(a). The relevant development consent to be considered for the purposes of s 7.11(6)(a) is the development consent in force at the time of the provision of the benefit and pursuant to which the benefit was provided as a condition of the development consent. Here, this was condition 30 of the development consent as originally granted. Any modification of the development consent only causes the development consent thereafter to be the development consent as modified. There would need to be the provision of a benefit after the modification of the condition of the development consent before the benefit could be said to be provided as a condition of the development consent as modified. 13. Secondly, condition 30, if modified as proposed, would not require the payment of a monetary contribution in the future, but rather would seek to change the amount of the monetary contribution that was required to have been paid in the past. But this could not cause the payment of the monetary contribution that was required by the condition before it was modified to become a payment under the condition as modified. 14. For these reasons, I uphold ground 4. 15. The third reason given by the primary judge was that "the overpayment may also give rise to an equitable claim, such as that of unjust enrichment, albeit in another suit in another court". The Council submitted that the primary judge was clearly in error in so finding. Buyozo had not put that argument in the Court below. It is not clear what restitutionary claim the primary judge had in mind. It could not be an action for money paid under a mistake of law. Such a claim only arises when the monies have been paid in the mistaken belief that the payer "was under a legal obligation to pay the moneys or that the payee was legally entitled to payment for the moneys": David Securities Pty Ltd v Commonwealth Bank of Australia (1992) 175 CLR 353 at 378; [1992] HCA 48. Here, there was no such mistake. Buyozo paid the contribution, and it voluntarily did so, in order to be able to carry out the development. The modification of condition 30 would not change this fact. 16. The Council submitted that if Buyozo wished to bring a restitutionary claim in another court, it would have to persuade that court that condition 30 was invalid when the payment was made. The modification of condition 30 would have no bearing on the issue of the validity of the condition. 17. Accordingly, even if Buyozo had an arguable restitutionary claim, this possibility did not give utility to the proposed modification of condition 30. 18. Buyozo did not support this third reason of the primary judge. Buyozo accepted that a restitutionary claim would not be available, for the reasons the Council had given in the particulars to paragraph 2 of its Amended Statement of Facts and Contentions. The Council had there stated that: "(b) The Applicant has no legal entitlement to recover the contributions paid pursuant to condition 30. (c) The payment of a contribution under s 7.11 of the EPA Act is a tax for the purposes of the Recovery of Imposts Act 1963 ("the Imposts Act"); (d) Pursuant to s 2(1)(b) of the Imposts Act, proceedings for the recovery of a tax must be commenced within 12 months of the date of payment. Any proceedings for the recovery of the contributions paid under condition 30 had to be commenced on or before 25 January 2020. (e) The Applicant has not commenced any such proceedings in a court of competent jurisdiction. (f) In this appeal, the Applicant has not, and could not, seek recovery of the contributions already paid." 1. These propositions were founded on this Court's decision in Baulkham Hills Shire Council v Wrights Road Pty Ltd (2007) 153 LGERA 219; [2007] NSWCA 152. 2. I find the primary judge did err in her third reason, for the reasons given by both the Council and Buyozo. In addition, I note that this Court held in Frevcourt Pty Ltd v Wingecarribee Shire Council (2005) 139 LGERA 140; [2005] NSWCA 107 at [103]-[106] that there is no power to refund contributions paid. Since that decision, the provisions of the EPA Act dealing with the payment of monetary contributions have been amended but in a way that reinforces the conclusion that there is no right to a refund of contributions paid under a condition of consent, see, for example, s 7.3(1) and (2) of the EPA Act. The Contributions Plan in this case also stated that "no refunds will be provided". 3. I uphold ground 5. Conclusion and orders 1. The Council has established each of its grounds of appeal. The primary judge's decision and orders should be set aside. The upholding of grounds 1-3 means that the Court below had no power to modify the development consent as sought in Buyozo's application to modify the development consent. The only orders available to the Court below in these circumstances would have been to dismiss the appeal and to refuse the application to modify the development consent. In these circumstances, this Court can make the orders that the Court below should have made, under s 57(2)(b) of the Court Act: see Thaina Town (On Goulburn) Pty Ltd v Sydney City Council (2007) 71 NSWLR 230; [2007] NSWCA 300 at [89], [103], [104], [108]-[110], [147], [151]; GPT Re Ltd v Belmorgan Property Development (2008) 72 NSWLR 647; [2008] NSWCA 256 at [98]-[101]; Minister Administering the Crown Lands Act v Bathurst Local Aboriginal Land Council (2009) 166 LGERA 379; [2009] NSWCA 138 at [195]; Sydney Water Corporation v Caruso [2009] NSWCA 391 at [7] and Meriton Apartments Pty Ltd v City of Sydney Council (2011) 80 NSWLR 156; [2011] NSWCA 17 at [64], [69], [70]. Buyozo should pay the Council's costs of the appeal to this Court. 2. I propose this Court should make the following orders: 1. The appeal is upheld. 2. The orders of the Land and Environment Court made on 6 January 2021 are set aside. 3. In lieu thereof: 1. The appeal to the Land and Environment Court is dismissed. 2. Application number MOD007/19 to modify development consent DA0122/17 granted on 30 April 2018 is refused. 1. The respondent is to pay the appellant's costs of the appeal to this Court. ********** Endnotes 1. Buyozo Pty Limited v Ku-ring-gai Council [2021] NSWLEC 2. 2. LEC tcpt, 14/12/20, p 12(50). 3. Compare, Uniform Civil Procedure Rules 2005 (NSW), r 36.17. Amendments 13 August 2021 - Coversheet - adding name of junior counsel for respondent 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: 13 August 2021