Land and Environment Court New South Wales Medium Neutral Citation: The Council of the City of Sydney v Emag Apartments Pty Limited [2023] NSWLEC 23 Hearing dates: 14 December 2022 Date of orders: 17 March 2023 Decision date: 17 March 2023 Jurisdiction: Class 1 Before: Duggan J Decision: See paragraphs 115 to 117 Catchwords: APPEAL – s 56A of Land and Environment Court Act 1979 (NSW) – cl 6.21 of the Sydney Local Environmental Plan – proper construction of design excellence clause – whether Commissioner failed to have regard to mandatory requirements – cl 55 of Environmental Planning and Assessment Regulation – whether error of law in granting consent to amended DA where DA not lawfully amended – lack of owner's consent at time unamended DA determined – whether Commissioner failed to give adequate reasons – appeal allowed and remitted to Commissioner – Respondent to pay costs Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW) Land and Environment Court Act 1979 (NSW) Environmental Planning and Assessment Amendment (Planning Portal) Regulation 2020 (NSW) Environmental Planning and Assessment Regulation 2000 (NSW) Environmental Planning and Assessment Regulation 2021 (NSW) Cases Cited: Al Maha Pty Ltd v Huajan Investments Pty Ltd (2018) 233 LGERA 170 Aloke Holdings Pty Ltd v Council of the City of Sydney [2019] NSWLEC 1177 Australian Consulting Architects Pty Ltd v Liverpool City Council (2017) 226 LGERA 406 Cavcorp Australia Pty Ltd v Hunters Hill Council [2021] NSWLEC 104 Design Power Associates Pty Ltd v Willoughby City Council (2005) 148 LGERA 233 DV016 v Minister for Immigration and Border Protection (2021) 95 ALJR 375 El Boustani v Minister administering the Environmental Planning and Assessment Act 1979 (2014) 199 LGERA 198 Georges River Council v S A F Group Pty Ltd [2021] NSWLEC 151 Gomon Pty Ltd v Council of the City of Sydney [2019] NSWLEC 116 Lateral Estate Pty Ltd v The Council of the City of Sydney [2017] NSWLEC 6 Owners Strata Plan 83556 (t/as Aspect Apartments) v Dehsabzi [2020] NSWLEC 175 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 Segal v Waverley Council (2005) 64 NSWLR 177 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 State Super SAS Trustee Corporation v Cornes [2013] NSWCA 257 Sutherland Shire Council v Bluewater District Services [1999] NSWCA 437 Tanious v Georges River Council [2016] NSWLEC 142 Toga Penrith Developments Pty Ltd v Penrith City Council [2022] NSWLEC 117 Uniting Church in Australia Property Trust (NSW) v Parramatta City Council [2018] NSWLEC 158 V'Landys v Land and Environment Court (NSW) (2012) 193 LGERA 47 Woollahra Municipal Council v SJD D82 Pty Ltd [2020] NSWLEC 115 Category: Principal judgment Parties: The Council of the City of Sydney (Appellant) Emag Apartments Pty Limited (Respondent) Representation: Counsel: J Lazarus SC (Appellant) A Pickles SC and M Staunton (Respondent) Solicitors: City of Sydney (Appellant) Mills Oakley (Respondent) File Number(s): 2022/207363 Publication restriction: No Decision under appeal Court or tribunal: Land and Environment Court Jurisdiction: Class 1 Citation: [2022] NSWLEC 1110; [2022] NSWLEC 1317 Date of Decision: 11 March 2022; 20 June 2022 Before: Dickson C File Number(s): 2021/190330 Judgment Nature of proceedings 1. In these proceedings, the Council of the City of Sydney (the Council) appeals against the whole of the decisions of a Commissioner of this Court comprising judgments delivered on 11 March 2022 in Emag Apartments Pty Ltd v The Council of the City of Sydney [2022] NSWLEC 1110 (First Judgment) and 20 June 2022 in Emag Apartments Pty Ltd v The Council of the City of Sydney (No 2) [2022] NSWLEC 1317 (Second Judgment), respectively. 2. In those judgments, the Commissioner approved a development application (DA) submitted by Emag Apartments Pty Ltd (the Respondent) for alterations and additions to an existing building, including demolition and construction of an 18-storey boarding house, ground floor retail, podium carparking, two levels of basement with pool, ancillary storage, plant and garbage rooms and bicycle parking spaces at 93-105 Quay Street, Haymarket (Subject Land). 3. At the hearing the Council sought leave to file a Further Amended Summons seeking to add an additional ground to its grounds of appeal which additional ground was styled "Ground 2A" and delete its previously pleaded Ground 5. Leave was granted to amend the Summons in the manner set out in the Further Amended Summons filed in Court on 14 December 2022. 4. On 19 December 2022, following the conclusion of the hearing, Senior Counsel for the Respondent advised of recent amendments to the Environmental Planning and Assessment Regulation 2021 (NSW) (EPA Regulation 2021). By consent, each party provided submissions addressing the impact of the new regulation on these proceedings. 5. The facts relating to the proceedings to which this appeal relates are set out in the First Judgment at [1]-[8] and are adopted without repetition in this decision. Grounds of appeal 1. By its Further Amended Summons commencing an appeal filed in Court on 14 December 2022, the Council contended that the Commissioner erred in law in the determination of the DA on the following separate grounds (excluding particulars): 1. The Commissioner erred on a question of law in finding at [56] of the First Judgment that the design excellence clause in cl 6.21C of the Sydney Local Environmental Plan 2012 (SLEP) (actually cl 6.21 as saved by the relevant transitional provision) is limited to the external urban design of the proposed development and its interaction with and contribution to the public domain, rather than the internal amenity of the building. [(Ground 1)] 1A. The Commissioner erred on a question of law in purporting to make findings at [56] of the First Judgment and at [2] of the Second Judgment that the proposed development exhibits design excellence in accordance with cl 6.21C (cl 6.21) of the SLEP, without complying with the mandatory requirement to have regard to each of the listed matters specified in cl 6.21(4). [(Ground 1A)] 2. The Commissioner erred on a question of law in granting consent to a development application in respect of which the consent of the owner of adjoining land located at 107 Quay Street had not been provided, in circumstances where there was no amendment to the development application pursuant to cl 55 of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation 2000) which would have had the effect of removing from the development application any development on 107 Quay Street. [(Ground 2)] 2A. The Commissioner erred on a question of law in purporting to grant consent to the DA "in its final form", in circumstances where there was no valid amendment made to the development application pursuant to cl 55 of the EPA Regulation 2000. [(Ground 2A)] 3. The Commissioner erred on a question of law in failing to be satisfied as to the requirements of cl 6.21 in relation to the DA "in its final form" because in her Second Judgment she simply "maintained" the findings in her First Judgment, without considering the specific issues associated with the Revision 12 plans the subject of the further expert comments provided by the Council's urban design expert and the matters raised in the Council's submissions dated 27 May 2022. [(Ground 3)] 4. Alternatively to Ground 3 above, the Commissioner erred on a question of law in failing to provide reasons, or alternatively adequate reasons, for the formation of the opinion under cl 6.21 of the SLEP that the proposed development "in its final form" exhibits design excellence. [(Ground 4)] 1. The grounds of appeal can be conveniently grouped into three separate topics: 1. Design excellence (Grounds 1 and 1A); 2. Owner's consent/amendment of DA (Grounds 2 and 2A); and 3. Second Judgment: failure to provide reasons and failure to consider evidence (Grounds 3 and 4). I will address the grounds of appeal in these convenient groupings. Principles applicable to determination of s 56A appeals 1. An appeal under s 56A of the Land and Environment Court Act 1979 (NSW) (LEC Act) against a decision made by a Commissioner is limited to an order or a decision of the Court on a question of law. The principles relevant to the determination of such appeals were conveniently summarised by Pepper J in Tanious v Georges River Council [2016] NSWLEC 142 at [10] (citations omitted): 10. …first, the appeal is only concerned with errors or questions of law and not questions of fact; second, an overly critical examination of the Commissioner's decision for relevant error should not be employed. The Commissioner's reasons for the decision must therefore be read as a whole and considered reasonably. A verbal slip or infelicity of expression does not necessarily warrant drawing and inference of an error of law. third, the Commissioner must give adequate reasons for her decision. This means that she must refer to evidence that is important or critical to the determination of the principal or central issues in the case. This does not mean, however, that every argument advanced by a party in support of these issues must be considered by the Commissioner or reasons given for accepting or rejecting it; fourth, and as corollary to the principle above, if the decision of the Commissioner reveals an error on a question of law, the decision is only vitiated if the error is material to the decision made; and fifth, an error will not be material to the decision if the matter complained of on appeal was a matter that was not the subject of submissions made to the Commissioner below in a way that called for a reasoned consideration of that matter. Relevant statutory provisions 1. The majority of the Council's grounds of appeal relate to the Commissioner's findings with respect to the design excellence provision in the Sydney Local Environmental Plan 2012 (SLEP). The Commissioner's decision recited the provisions of the SLEP as it appeared at the date of determination having been the subject of amendment on 26 November 2021 by dint of the Sydney Local Environmental Plan 2012 (Amendment No 65). That amendment included a savings provision that had the effect of "saving" undetermined development applications such as the present DA: cl 1.8A(5)(a). However, as the only substantive change effected by the amendment was to renumber former cl 6.21 to cll 6.21C-D and the text of the provision(s) remained unchanged the parties accepted that there was no material error in the Commissioner having purported to make findings regarding cl 6.21C and not cl 6.21. To that end I read the Commissioner's references as being those in the unamended cl 6.21. 2. The relevant parts of cl 6.21 of the SLEP were in the following terms: 6.21 Design excellence 1 The objective of this clause is to deliver the highest standard of architectural, urban and landscape design. 2 This clause applies to development involving the erection of a new building or external alterations to an existing building on land to which this Plan applies. 3 Development consent must not be granted to development to which this clause applies unless, in the opinion of the consent authority, the proposed development exhibits design excellence. 4 In considering whether development to which this clause applies exhibits design excellence, the consent authority must have regard to the following matters- a) whether a high standard of architectural design, materials and detailing appropriate to the building type and location will be achieved, b) whether the form and external appearance of the proposed development will improve the quality and amenity of the public domain, c) whether the proposed development detrimentally impacts on view corridors, d) how the proposed development addresses the following matters- i) the suitability of the land for development, ii) the existing and proposed uses and use mix, iii) any heritage issues and streetscape constraints, iv) the location of any tower proposed, having regard to the need to achieve an acceptable relationship with other towers (existing or proposed) on the same site or on neighbouring sites in terms of separation, setbacks, amenity and urban form, v) the bulk, massing and modulation of buildings, vi) street frontage heights, vii) environmental impacts, such as sustainable design, overshadowing and solar access, visual and acoustic privacy, noise, wind and reflectivity, viii) the achievement of the principles of ecologically sustainable development, ix) pedestrian, cycle, vehicular and service access and circulation requirements, including the permeability of any pedestrian network, x) the impact on, and any proposed improvements to, the public domain, xi) the impact on any special character area, xii) achieving appropriate interfaces at ground level between the building and the public domain, xiii) excellence and integration of landscape design. Ground 1 – proper construction of design excellence clause Ground 1A – failure to comply with clause 6.21(4) of the SLEP Council's submissions Ground 1 1. In the First Judgment at [55]-[57], the Commissioner made a finding that the proposed development (as it then was) exhibited design excellence, having regard to the factors specified in cl 6.21(4) of the SLEP. In the course of making that finding at [56], the Commissioner accepted the submission of Senior Counsel for the Respondent that: ...the intent of [cl 6.21(3) and (4)] of LEP 2012 is directed to external urban design of the proposed development, its interaction with and contribution to the public domain, rather than the internal amenity of the building which is addressed by other controls in both LEP 2012 and Sydney Development Control Plan (DCP 2012). In my view, so much is clear from the text of the provision. The Commissioner proceeded to make an alternative finding in the next sentence to the effect that "the entirety of the proposed development exhibits design excellence" in the event that her interpretation of the provision was incorrect. 1. It is unclear what the Commissioner meant when she indicated at [56] that "so much is clear from the text of the provision". No other reasoning was provided to support her conclusion on that topic. 2. The structure of the relevant parts of the design excellence provision in cl 6.21 is as follows: see Gomon Pty Ltd v Council of the City of Sydney [2019] NSWLEC 116 at [99], [101]-[105]: 1. Clause 6.21(1) specifies the objective of the clause, that is, to deliver the highest standard of architectural, urban and landscape design; 2. Clause 6.21(2) specifies the development to which the clause applies, that is, that involving the erection of a new building or external alterations to an existing building on land to which the SLEP applies; 3. Clause 6.21(3) imposes a jurisdictional requirement upon the consent authority not to grant consent to development to which the clause applies unless it forms the opinion that the proposed development exhibits design excellence; 4. Clause 6.21(4) specifies the mandatory relevant considerations in considering whether relevant development exhibits design excellence; and 5. Clause 6.21(5) imposes a jurisdictional requirement for the holding of a competitive design process in certain circumstances. 1. The deliberate structure of the cl 6.21(2) of the SLEP is the "gateway" provision which determines whether the clause applies at all to any proposed development. Once that provision is satisfied, it has no further work to do in the operation of the clause. Moreover, cl 6.21(2) does not limit itself to development that comprises the erection of a new building or external alterations to an existing building. Rather, the use of the word "involving" widens the class of development to which cl 6.21 applies: see Uniting Church in Australia Property Trust (NSW) v Parramatta City Council [2018] NSWLEC 158 at [50] per Preston CJ. That is, if part of (or the whole of) a proposed development involves the erection of a new building or external alterations to an existing building, the clause is triggered and it is the development as a whole that must exhibit design excellence, and not merely the part that triggered the application of the clause. 2. There is, therefore, no scope for any argument that merely because cl 6.21(2) of the SLEP refers expressly to "external alterations" that internal amenity issues are necessarily legally irrelevant to the issue of whether the proposed development exhibits design excellence. In any event, the Commissioner, implicitly at least, must have determined that cl 6.21(2) was triggered because she proceeded to make findings in accordance with the design excellence clause. There is no challenge to her conclusion that the design excellence provision applied to the DA. 3. The Commissioner erred in construing the clause as a whole as being confined to "external urban design of the proposed development, its interaction with and contribution to the public domain", and that, as a result, the internal amenity of the building was legally irrelevant to the assessment of design excellence. 4. In construing cl 6.21 of the SLEP, it is important to note that the list of matters specified in cl 6.21(4) of the SLEP, while mandatory, is not exhaustive: see Toga Penrith Developments Pty Ltd v Penrith City Council [2022] NSWLEC 117 (Toga Penrith Developments) at [95]-[97] per Preston CJ. The list of matters is to be considered as "cumulative matters which, when considered together, determine whether the proposed development, as a whole, exhibits design excellence": Aloke Holdings Pty Ltd v Council of the City of Sydney [2019] NSWLEC 1177 at [85]. As it is the development as a whole that must be considered, and in circumstances where the list of mandatory matters for consideration is not exhaustive, it is difficult to see how issues of internal amenity of the proposed building must, as a matter of construction of the clause, be legally irrelevant. 5. The Commissioner's construction is not supported by the language of the provision in any event. The fundamental jurisdictional provision, namely cl 6.21(3) of the SLEP, is not by its terms limited to the external features of the proposed development. Nor does the undefined phrase "design excellence" necessarily exclude issues relating to the internal design or amenity of a building. Nor do the objects the clause limit itself to matters of external design only. 6. Even taking into account the matters specified in cl 6.21(4) of the SLEP, it is clear that those matters may include issues of internal design as much as of external design. In particular, the references in cl 6.21(4)(d)(ii), (vii) and (viii) suggest that the assessment of whether a proposed development exhibits design excellence or not is not necessarily confined to a building's external appearance and design. 7. While in any particular case matters of external design might be more important, and may even be the predominant considerations, the determination made by the Commissioner did not relate to such merit assessment of the particular factual circumstances. Rather, the Commissioner found as a matter of construction that matters of internal amenity were legally irrelevant to the question of whether a proposed development exhibits design excellence for the purposes of cl 6.21 of the SLEP as such the construction would apply independent of particular factual circumstances. 8. In so construing the provisions of cl 6.21 of the SLEP the Commissioner erred in law. Ground 1A 1. The matters listed in cl 6.21(4) of the SLEP are mandatory relevant considerations to which the consent authority must "have regard". The obligation to "have regard" to a matter requires engaging in an active intellectual process: DV016 v Minister for Immigration and Border Protection (2021) 95 ALJR 375 at [12], [77]. 2. Moreover, as Preston CJ has recently clarified in Toga Penrith Development: 1. It is not sufficient for a Commissioner to form the opinion that the proposed development did or did not exhibit design excellence or to do so having regard to the evidence of the urban design experts: at [70]; 2. An opinion that the proposed development does or does not exhibit design excellence, which is formed without having regard to the matters prescribed in cl 6.21(4) will not be an opinion for the purposes of cl 6.21(3): at [72]; 3. The matters in cl 6.21(4) are framed in particular language, not as general topics but instead as outcomes or objectives to be achieved, and the statutory obligation to "have regard" to these matters requires having regard to the particular terms in which the matters are expressed and not just the general topics that are the subject of the matters: at [73]; 4. The particular terms in which the matters in cl 6.21(4) are expressed serve as focal points for, and fundamental elements in, the consent authority deciding whether or not the proposed development exhibits design excellence: at [73]; and 5. Consideration of each of the matters in (4)(a), (b), (c) and (d)(i)-(xiii) requires, in each case, answering the particular question posed: at [74]. 1. In making the findings at [56] and in particular the alternative findings the Commissioner has failed to take into account the mandatory relevant considerations as required by cl 6.21 of the SLEP in that: 1. She unlawfully limited her consideration to that construction referred to in Ground 1; 2. In her alternative finding the Commissioner: 1. To the extent it could be suggested that her words addressed cl 6.21(4)(a): 1. She limited her consideration to only the external features of the building; 2. Failed to undertake the necessary consideration as required by cl 6.21(4)(a) in that she did not consider nor address the questions posed therein; 1. Failed to consider the provisions of cl 6.21(4)(d) in the manner required by the clause at all. The references to the note "that consistent with my findings in the remainder of the judgment, I find that after considering the factors at subcl (d) of [6.21(4)], the entirety of the proposed development exhibits design excellence" is insufficient to cure the defect as: 1. The merit considerations relating to the internal design identified at [86] are unrelated to the determination required by cl 6.21; and 2. The findings, illustrated at [119], are related to the weighing of factors required under s 4.15 of the Environmental Planning and Assessment Act 1979 (NSW) (EP&A Act) and not the consideration required by cl 6.21 as identified in Toga Penrith Development. 1. The error as identified is not corrected in the Second Judgment. At [2] of the Second Judgment, the Commissioner stated that she maintained the findings made in the First Judgment, and that she maintained her findings of satisfaction that the proposed development exhibited design excellence, having regard to the matters listed at cl 6.21(4) of the SLEP. By this finding the deficient reasoning is "carried through" into the final determination. There is no engagement at all in the Second Judgment with the issues arising in relation to the DA "in its final form" that would permit a finding that the mandatory requirements of cl 6.21 had been considered. 2. In those circumstances, the Commissioner failed to comply with her obligation to have regard to each of the mandatory considerations in cl 6.21(4) of the SLEP, and her decision to grant consent is therefore infected by error of law. 3. In confining the meaning of the design excellence clause to exclude matters of internal amenity, the Commissioner has misconstrued the clause, and has therefore erred in law. Respondent's submissions Ground 1 1. Even if the error asserted was made by the Commissioner such error is not material to the Commissioner's decision and would therefore not vitiate the decision. As the Commissioner found at [56] of the First Judgment: …If this interpretation of the provision is incorrect, I note that consistent with my findings in the remainder of the judgment, I find that after considering the factors at subcl [(4)(d)] of cl [6.21], the entirety of the proposed development exhibits design excellence. The precondition is satisfied. 1. The reference in [56] of the First Judgment to the remainder of the judgment is a reference to all of the other findings in the judgment and includes the paragraphs at [86]-[126] of that judgment which unambiguously addressed the internal amenity and design, which was central to the Council's contentions in the proceedings. 2. For this reason, it is unnecessary to address the correctness or otherwise of the Commissioner's conclusion at [56] that cl 6.21 of the SLEP is directed to external urban design. The impugned finding simply cannot vitiate the decision given the alternative findings made. Ground 1A 1. Ground 1A discloses no error of law. 2. Contrary to the submissions of the Council, the Commissioner complied with the requirements of cl 6.21 of the SLEP. At [55] of the First Judgment the Commissioner set out cl 6.21. At [57] the Commissioner found: I have given consideration to the factors listed at [55] in forming my state of satisfaction that cl [6.21] of LEP 2012 is met. The proposed development in my opinion does exhibit design excellence. In that circumstance, the precondition in cl [6.21(4)] for development consent is achieved. 1. At [2] of the Second Judgment the Commissioner found, referring back to her earlier judgment: In that decision, I found that the preconditions to the grant of development consent in the applicable environmental planning instruments at met by the proposed development application. I maintain my findings [14]-[21], [31]- [35], [50]-[54] and [56]-[60] in Emag v City of Sydney in relation to the development application in its final form. In particular, following a review of the development application in its final form and consideration of the further submissions made by Ms Reid on behalf of the Respondent, I maintain my findings of satisfaction that the proposed development exhibits design excellence satisfying the precondition contained at cl [6.21(3) and (4)] of the Sydney Local Environmental Plan 2012 (LEP 2012). In reaching this state of satisfaction I have had regard to the matters listed at subcl [(4)] of cl [6.21] as they relate to the development application. I am satisfied that the preconditions to consider in the relevant environmental planning instruments are met by the development application. 1. That finding was entirely consistent with what the Council submitted that the Commissioner ought to do in the written submissions of Counsel for the Council in those proceedings as identified in the written submissions given to the Commissioner which stated: 10. To make a lawful decision, the Court would need to make a fresh assessment of design excellence and review or confirm the finding in [127] on the basis of the amended plans. This is precisely what the Commissioner did. 1. It is clear from [2] of the Second Judgment, that the Commissioner formed the opinion required by cl 6.21(3) of the SLEP and in doing so had regard to the matters in cl 6.21(4). Consistent with the submission of Counsel for the Council in that the Commissioner made a fresh assessment of design excellence and in doing so had regard to the submissions and the evidence of Ms Pressick, the Council's urban design expert and confirmed her findings on cl 6.21(3) and (4). 2. In this appeal the Council relied upon the decision in Toga Penrith Development. That decision is not relevant to the determination of this appeal as in this case the Commissioner did not form the requisite satisfaction only on the basis of the expert evidence, but rather formed the opinion based on the evidence and by express reference to the terms of cl 6.21 of the SLEP itself. 3. To the extent that the Council in this appeal contends that the Commissioner effectively was obliged to address every single element of cl 6.21 of the SLEP "chapter and verse" such a criticism is akin to an assertion of lack of reasons. The Commissioner's express finding at [57] of the First Judgment is enough when read in conjunction with the balance of the judgment on the principal contested issues. There was no obligation to individually address, in detail, every element of cl 6.21 when most of those factors were not contested by the Council below. A Commissioner's duty to give reasons "is confined to the essential ground or grounds upon which the decision rests": Segal v Waverley Council (2005) 64 NSWLR 177 (Segal v Waverley Council) at [93], citing Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247. 4. The fact that cl 6.21 of the SLEP is jurisdictional does not change the character of the requirement to give reasons. The Amended Statement of Facts and Contentions specifically raised design excellence as a contention. The particular ways in which it was contended that the building did not achieve design excellence was specified. By the conclusion of the hearing those ways were narrowed to be those matters identified at [86], in respect of which there was an overlap with the design excellence provisions. By reason of the overlap between design excellence and the broader merit contentions the reasons in relation to the merits also cannot be separated from the design excellence findings at [56] and [57]. Findings on Grounds 1 and 1A 1. The Commissioner's findings with respect to design excellence in the First Judgment should be read as a whole and in context. The relevant findings appear at [55]-[57] in the following terms: 55. Cl [6.21(3) and (4)] of LEP 2012: Design Excellence applies to the subject site. Pursuant to subcl [(3)], development consent must not be granted to development to which this clause applies unless, in the opinion of the consent authority, the proposed development exhibits design excellence. Following a consideration of the evidence and the submissions of the parties, I find that the development exhibits design excellence. In determining whether the development exhibits design excellence, as required by subcl [(3)], I have had regard to the following factors: [text of cl 6.21C(2)(a)-(d) of SLEP then reproduced]. 56. I am satisfied that the proposed development, when completed, will exhibit a high standard of design and materials appropriate to the proposed boarding house use. The selection of material and the detailing proposed is reflective of its location and enables the Site to be visually integrated within its urban precinct. Further, I am satisfied that the proposed design incorporates detailed use of modulation and articulation, and facilitates the successful renewal of the existing building. Finally, I accept the submission of Mr Pickles that the intent of cl [6.21(3) and (4)] of LEP 2012 is directed to external urban design of the proposed development, its interaction with and contribution to the public domain, rather than the internal amenity of the building which is addressed by other controls in both LEP 2012 and Sydney Development Control Plan (DCP 2012). In my view, so much is clear from the text of the provision. If this interpretation of the provision is incorrect, I note that consistent with my findings in the remainder of the judgment, I find that after considering the factors at subcl [(4)(d)] of cl [6.21], the entirety of the proposed development exhibits design excellence. The precondition is satisfied. 57. I have given consideration to the factors listed at [55] in forming my state of satisfaction that cl [6.21(3) and (4)] of LEP 2012 is met. The proposed development in my opinion does exhibit design excellence. In that circumstance, the precondition in cl [6.21(3)] for development consent is achieved. 1. Thereafter, the Commissioner considered what she described as the "merits of the proposed development" at [86]-[126] which included matters internal to the built form. 2. I accept the Council's submissions at [22]-[27] above. 3. For those reasons and the reasons that follow, I cannot accept the Respondent's submission that the Commissioner's "alternative" findings were sufficient to determine the relevant question of design excellence such that there is no need to consider whether the Commissioner's finding on the construction of cl 6.21 of the SLEP was in error. 4. At [56] the Commissioner addresses matters relating to: 1. A high standard of design and materials appropriate to the proposed boarding house use; 2. The selection of material and the detailing proposed is reflective of its location and enables the Subject Land to be visually integrated within its urban precinct; and 3. The proposed design incorporates detailed use of modulation and articulation and facilitates the successful renewal of the existing building. 1. Each of these factors relate to the external appearance of the proposed building. These factors, to the extent that they are identified in the text of cl 6.21(4) of the SLEP could possibly be considered as addressing in a broad context those required by subcll (a) and (d)(v). From the terms of [56] and in light of what is stated at [55] it appears that the Commissioner considered that those nominated factors were those that permitted her to be satisfied that the proposal exhibited design excellence. 2. The Commissioner's second statement relates to the acceptance of the submission as to the limitation of the provisions of cl 6.21 of the SLEP to the external features of the building. To that extent such a "finding" can only be taken to have been consistently applied. That is, in the consideration of the earlier recited features relating to design excellence the Commissioner restricted the consideration to the external features of the proposed building. 3. The Commissioner's third statement is to suggest that if she be wrong and the internal features are required to be considered by operation of cl 6.21 of the SLEP she does so in the balance of her First Judgment. However, the Commissioner in clear terms constrains her alternative assessment to the factors referred to in cl 6.21(4)(d) of the SLEP only. If the Commissioner was truly carrying out an alternative assessment of the requirements of cl 6.21 the consideration required an assessment of the whole of the provisions of cl 6.21(4) and not just subcl (4)(d). I therefore find that the Commissioner, in her alternative finding, has failed to carry out the mandatory consideration of the design excellence provisions as required by cl 6.21. 4. In light of my finding that the Commissioner's "alternative" finding was not a proper determination as required by cl 6.21 it is necessary to consider whether the Commissioner's construction of cl 6.21 was in error. 5. The proper construction of a provision of a legal instrument involves questions of law, an error in the construction will therefore be an error of law and a matter to which an appeal under s 56A lies. By erroneously construing the provisions of an instrument and then applying that construction in the determination of the DA the Commissioner does not take into account the mandatory relevant consideration but misdirects the exercise of the discretion to determine the DA. 6. In this case, I am satisfied that the Commissioner erred in her construction of the terms of cl 6.21 of the SLEP and, thereafter, misdirected herself as to the assessment she was required to make for the reasons submitted by the Council at [13]-[21] above. As to the proper construction of the clause there is no warrant in the text of the provision to limit the consideration required to the: external urban design of the proposed development, its interaction with and contribution to the public domain, rather than the internal amenity of the building. Whilst some of the provisions are so directed there are equally textual indicators that incorporate a consideration of internal features such as those provided for in subcll (4)(a) and (4)(d)(i), (iii), (vii) and (viii). Whilst the extent to which such considerations will arise as important or weighty will vary depending upon the particular development under consideration, that is insufficient to warrant a wholesale limitation to external considerations on the basis of a construction of the text of the clause. 7. To the extent that the Commissioner also references other provisions of the SLEP and its supporting DCP as dealing with matters internal to the proposed development such considerations do not inform a restriction on the construction of cl 6.21 of the SLEP. The particular focus of the design excellence clause is nominated in its objective at cl 6.21(1) to deliver the highest standard of architectural, urban and landscape design, such an analysis, with that focus, may differ from the required consideration identified in a more specific operative provision: see Toga Penrith Development. 8. To the extent that the Commissioner stated at [55] and [57] that she was satisfied, having regard to all of the operative provisions of cl 6.21 of the SLEP, such a statement must be read in conjunction with her specific limitation on the matters she had regard to in connection with the internal assessment, namely on those provisions that were contained in 6.21(4)(d). Applying such a limitation to the consideration is not what was required by the clause, the whole of the provisions of cl 6.21(4) were to be taken into account. Therefore, the Commissioner has failed to take into account a mandatory requirement to have regard to all of the matters as required by cl 6.21(4) (both internal and external) in determining whether the development exhibits design excellence. 9. I find that Grounds 1 and 1A have been established and that the error in each ground would be sufficient to vitiate the decision of the Commissioner. Ground 2 – owner's consent Ground 2A – no valid amendment pursuant to cl 55 of the Regulations Council's submissions Ground 2 1. The Commissioner made a finding, not challenged in this appeal, that the consent of the owner of the adjoining building at 107 Quay Street was required to be provided pursuant to cl 49(1) of the Environmental Planning and Assessment Regulation 2000 (NSW) (EPA Regulation 2000), and that the consent of that owner had not in fact been obtained. 2. The Commissioner made directions at [129] of her First Judgment requiring the Respondent to amend its architectural drawings to exclude any development proposed to occur on 107 Quay Street but reserving (under direction (3)) the question of whether the Council agreed under cl 1218(1) [cl 55 sic.] of the EPA Regulation 2000 to the Respondent amending its development application. If the Council consented to the amendment, the amended application was to be uploaded to the NSW Planning Portal. 3. However, at no stage did either the Council or the Court exercise the power of the consent authority to agree to the amended development application for the purposes of cl 55 of the EPA Regulation 2000. Clause 55 required the "agreement" of the consent authority to the amendment. The words in parenthesis in cl 55(1) of the Regulation "(but only with the agreement of the consent authority)" have been held to "demand an identifiable confirmation by the consent authority that this agreement has actually been given" and that the agreement should be communicated "in a clear, identifiable manner": Australian Consulting Architects Pty Ltd v Liverpool City Council (2017) 226 LGERA 406 (Australian Consulting Architects) at [136]. "Mere silence or inaction" does not constitute "agreement" for the purposes of cl 55 because logic demands that the "agreement" be "demonstrative and unambiguous (and, therefore, should be in writing) so that there is a referable document confirming that agreement has been given": Australian Consulting Architects at [137]. 4. There was nothing within the Council's submission (and/or attached expert comments) or otherwise that could be construed as amounting to a formal "agreement" to the proposed amendments to the DA. In fact, one of the options advanced by the Council in its submissions was for the Court to direct the Respondent to revise the plans to make further amendments in order to produce a more cohesive design. 5. Contrary to the Commissioner's understanding recorded at [5] of the Second Judgment, the amended application was in fact not lodged on the NSW Planning Portal prior to the Second Judgment upholding the appeal and granting consent to the (purportedly) amended DA. In fact, the uploading of the amended plans only occurred on 25 July 2022, being a date after the Second Judgment. 6. The lodgement of amended plans on the NSW Planning Portal is a jurisdictional precondition to a valid amendment: Cavcorp Australia Pty Ltd v Hunters Hill Council [2021] NSWLEC 104 (Cavcorp) at [28] per Preston CJ. Pursuant to cl 55(1) of the EPA Regulation 2000, the lodging of the amendment on the NSW Planning Portal must take place "at any time before the application is determined". As the uploading of the relevant plans occurred some weeks after the determination of the DA, it followed that there was no valid amendment to the DA which would have had the effect of removing from the DA any development on 107 Quay Street. 7. Accordingly, pursuant to cl 49(1) of the EPA Regulation 2000, at the time the DA was determined the land to which the DA related still included 107 Quay Street. Consequently, based on the earlier findings made in the First Judgment (which are not the subject of challenge in this appeal), owner's consent to the proposed development had not been provided at the time the consent was purported to have been granted on 20 June 2022. The consent is therefore invalid: see Al Maha Pty Ltd v Huajan Investments Pty Ltd (2018) 233 LGERA 170 (Al Maha). 8. Insofar as the issue of the failure to upload the amended application to the NSW Planning Portal is concerned: 1. The finding at [5] of the Second Judgment that the amended application had been lodged on the NSW Planning Portal may have been a finding of fact, but it was a finding of fact made without "a skerrick of evidence" to support it, and is therefore liable to be set aside: see Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane (2021) 395 ALR 403 at [17] per result of the failure to satisfy cl 55 of the EPA Regulation 2000; and 2. It has been held that lodgement of amended plans on the NSW Planning Portal is a jurisdictional precondition to a valid amendment: Cavcorp at [28]. As a matter of construction, cl 55(1) can only be satisfied by the lodging of the amendment on the NSW Planning Portal, which must occur prior to the determination of the DA. As that did not happen in this case, there was no valid amendment. The express insertion of the words "by lodging the amendment or variation on the NSW planning portal" in cl 55(1) as a result of the Environmental Planning and Assessment Amendment (Planning Portal) Regulation 2020 (NSW) clearly had the purpose of introducing an additional substantive precondition to the exercise of the power of amendment under cl 55, which was no mere "administrative requirement". A Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 (Project Blue Sky) analysis does not yield any different result. Amendment to regulation 1. It is common ground that the amendment to the transitional provisions in s 3 of Part 1 of Sch 6 to the EPA Regulation 2021 does not have retrospective effect. 2. It follows that if that is the only ground upheld by the Court, then the amendment to the transitional provision in relation to cl 55 of the EPA Regulation 2000 makes no substantive difference to the appeal. As the amendment does not have retrospective effect, the consent granted by the Commissioner will be and will remain invalid unless the Court makes an order under s 56A(2)(b) of the LEC Act. 3. If, however, other (non-Portal) grounds are upheld by the Court, then there should be a remitter to the Commissioner in any event. 4. Otherwise, the Respondent's submission regarding Project Blue Sky should not be accepted. There is no basis in principle or authority for interpreting cl 55 of the EPA Regulation 2000 by reference to transitional provisions in successor legislation. The Council notes that in any event the requirement to lodge the amendment on the NSW Planning Portal has been maintained in the EPA Regulation 2021, which supports its construction of cl 55. Ground 2A 1. The consequence of the absence of a valid amendment to the DA is that the Commissioner has purported to grant consent to a development application in a form which was not that which was before the Court for determination. Unless the amendment power in cl 55 of the EPA Regulation 2000 was appropriately engaged, the Court has no jurisdiction to determine the DA "in its final form". Its jurisdiction is limited to determining the application before it: Owners Strata Plan 83556 (t/as Aspect Apartments) v Dehsabzi [2020] NSWLEC 175 at [95] per Preston CJ. 2. Lest it be suggested that the Court had the power to grant consent to part only of the proposed development (s 4.16(4)(c) of the EP&A Act ), it is important to recognise that there are three quite different statutory paths by which the development the subject of a development application may be changed before or at the time of the grant of consent (V'Landys v Land and Environment Court (NSW) (2012) 193 LGERA 47 at [87] per Biscoe J), and that the Respondent (and the Court) proceeded by the amendment route, rather than the partial consent route (or the conditions route). Having opted for one pathway, it cannot now change the means by which it seeks approval for its development: see Lateral Estate Pty Ltd v The Council of the City of Sydney [2017] NSWLEC 6 at [85]. 3. Accordingly, the Commissioner had no power to grant consent to the DA "in its final form" in circumstances where that was not the application that was formally before the Court at the time of the determination of the DA on 20 June 2022. Respondent's submissions Ground 2 1. Ground 2 is a technical argument which arises from the Council's failure to comply with a direction of the Court. 2. In the First Judgment the Commissioner made a direction, amongst others that: (3) The Respondent, Council of the City of Sydney, as the relevant consent authority, is to advise the Court whether it agrees, under cl 121B(1) of the Environmental Planning and Assessment Regulation 2000, to the Applicant amending their development application as detailed in (1). If it consents to the amendment, the amended application is to upload the amended development application (sic.) to the NSW Planning Portal. 1. The effect of the above direction was to require the Council to advise whether it consented to the amendment of the DA. That order was specifically raised by Counsel for the Council in the First Judgment when she appeared before the Commissioner on 11 April 2022. Counsel raised that the Commissioner referred to the wrong section of the Environmental Planning and Assessment Act 1979 (NSW) EPA Act (s 121E sic.) but did not respond to the Court's direction. 2. The Council filed further written submissions on 27 May 2022 and again failed to respond to the Commissioner's order made on 11 March 2022 as to whether it agreed to the amendment of the DA. 3. At [5] of the Second Judgment the Commissioner made a finding that the amended DA had been lodged on the NSW Planning Portal. This is a finding of fact and is not an error of law. 4. Further, the error of fact is not actually an error of the Commissioner at all. Plainly the Commissioner did not intend to, and did not, in fact, grant consent to the unamended DA. Accordingly, the consent of the adjoining owner was not required for the DA in the form in which the Commissioner did approve it. 5. In the alternative, the Council ought to be estopped from relying on its own breach of a direction to assert an error on the part of the Commissioner below: see Design Power Associates Pty Ltd v Willoughby City Council (2005) 148 LGERA 233 at [41]-[49]. Similar to that decision, the Council had an opportunity, if it objected (or did not consent) to the amendment to indicate its objection to the Commissioner. Having failed to do so it is an abuse of process to now rely on that failure as a basis to assert an error by the Commissioner. Alternatively, the Council's silence and absence of objection could reasonably have been taken by the Commissioner to be consent. 6. To the extent to which it is asserted by the Council that there was no jurisdiction to approve the amended DA because it was not lodged on the NSW Planning Portal until after the decision in the Second Judgment, in breach of cl 55(1) of the EPA Regulation 2000, whether an act done in contravention of a statutory requirement is rendered invalid turns upon a determination of whether such a result was the consequence intended by the statutory provisions. The approach to this task has been formulated in the much-cited decision of Project Blue Sky at 388-389: An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition. 1. The purpose of lodging the amended DA on the NSW Planning Portal appears to be of an administrative nature to ensure that there is a record of any amended application on the NSW Planning Portal. Clause 55 of the EPA Regulation 2000, in the form in which it was at the relevant time was as follows: (1) A development application may be amended or varied by the applicant (but only with the agreement of the consent authority) at any time before the application is determined, by lodging the amendment or variation on the NSW planning portal. 1. The provision has two parts. The first part is the enabling part that enables an application to be amended. The second part has an administrative character that identifies the means by which an application is to be amended. The purpose of the provision, along with the provisions of the EPA Act that establish the NSW Planning Portal, is to provide a central source for online exhibition of development applications and keeping a record of consents. The lodgement of the amended plans on the NSW Planning Portal is, as much as anything, to maintain the records and to ensure transparency. Absent a requirement to renotify the amendment of the application, in this case, a delay in the lodgement of the amendment to the NSW Planning Portal had no substantive consequence. This administrative character would be inconsistent with an intention that non-compliance should lead to invalidity. 2. In any event the Respondent has confirmed that the amended DA has since been lodged on the NSW Planning Portal so that the administrative requirement is now complete. 3. In the circumstances, Ground 2 should be dismissed. In the alternative, the Court has wide powers under s 56A of the LEC Act, so it could simply make an order setting aside Orders 1 and 3 made by the Commissioner on 20 June 2022 and then remake those orders on the appeal with an order that the Council pay the Respondent's costs of the appeal. These alternative orders would be an appropriate response given that any error of the Commissioner was the result of the Council's failure to comply with the direction of the Court. Amendment to regulation 1. The consequence of this amendment is that even if the Court were to find that the Commissioner erred by finding in the Second Judgment that "(t)he Respondent has confirmed the upload of the amended development application to the NSW Planning Portal, consistent with the requirements of cl 55 of the Environmental Planning and Assessment Regulation 2000 (which continues to apply, notwithstanding its repeal by the Environmental Planning and Assessment Regulation 2021)", there would be no utility in making any order. 2. While at the time of the decision, cl 55 of the EPA Regulation 2000 continued to apply, and to that extent the Commissioner was correct, albeit wrong as a matter of fact, legally that is no longer the case. There would be no utility in remitting the matter to the Commissioner to make any different order or for the Court to make any different order under s 56A(2)(b) of the LEC Act because as at the date of the Court's decision in this appeal, it is no longer a requirement that an amendment be uploaded to the NSW Planning Portal for a matter before the Court. 3. It is acknowledged that s 3(2) of the EPA Regulation 2021 does not itself have retrospective effect, but this is reflective of the fact that it was intended to reverse the effect of the previous savings provision so that cl 55 of the EPA Regulation 2000 would not be saved even in respect of current applications before the Court. It would be highly unusual to endeavour to save the effect of a regulation which, presumably for policy reasons, has been considered unnecessary or undesirable to maintain even in respect of current applications. 4. The regulation further supports the Project Blue Sky approach to the former cl 55 contended by the Respondent. That is, it could hardly be intended that a breach of cl 55 would invalidate consents granted by the Court on the basis of a failure to upload plans to the NSW Planning Portal. The cl 55 requirement to lodge an amendment on the portal had only an administrative purpose in relation to exercise of the function by Councils, but not a substantive purpose where the power to amend is exercised in proceedings before the Court. Ground 2A 1. This ground in substance amounts to no more than a reformulation of the same alleged error as in Ground 2. The Respondent repeats its submissions in response to Ground 2 and should be dismissed for the same reasons as Ground 2. Findings on Grounds 2 and 2A 1. Whilst the Commissioner's finding that the amendment had been effected by the uploading of the amended DA to the NSW Planning Portal was an error of fact that is not the real issue to which this ground of appeal relates. It was not the mere fact that the amendment had not been uploaded, but rather that the DA, by not having been effectively amended, continued to relate to the adjoining land and there had been no owner's consent given by the owner of the adjoining land. 2. Absent owner's consent the Court had no power to grant the development consent: see Al Maha. The Commissioner stated at [5] of the Second Judgment that: "The Respondent has confirmed the upload of the amended development application to the NSW Planning Portal, consistent with the requirements of cl 55 of the Environmental Planning and Assessment Regulation 2000 (which continues to apply, notwithstanding its repeal by the Environmental Planning and Assessment Regulation 2021)". Such confirmation in fact had not been given and as at the date of the Second Judgment the amended DA had not in fact been so uploaded. 3. I accept the Council's submissions at [55]-[59] above that the consent must be given in some positive way. The Council's inaction or silence is insufficient to constitute the necessary consent. Therefore, it is not the lack of uploading that comprises the defect, as until consent for the amendment had been obtained the amendment could not be uploaded. For the same reason I reject the Respondent's submission that the Council is somehow estopped from raising this issue in this appeal. 4. As a consequence, the Commissioner still had before her the DA, unamended, which application required the consent of the adjoining owner, which consent had not been obtained. 5. By operation of cl 49(1) of the EPA Regulation 2000 until that consent had been obtained the Court had no power to approve the DA before it. The Court, upon the amendment of the DA, would have had power to approve as it was intended that the aspect of the proposed development that related to the adjoining land was to be deleted. Unfortunately, the Commissioner's decision was made before the jurisdictional barrier had been removed and, accordingly, she had no power to grant the development consent at that time. 6. Whilst I find that this ground has been made out, in light of my findings relating to Grounds 1 and 1A the matter will be remitted to the Commissioner. The parties have confirmed that the amendment has now been effected and the Commissioner will have power, should she determine it appropriate in the exercise of her discretion to grant development consent. Ground 3 – failure to satisfy clause 6.21 in relation to the DA "in its final form" Ground 4 – absence of reasons Council's submissions Ground 3 1. As noted above, in the First Judgment, the Commissioner made directions at [129] including for the amendment of the Respondent's architectural drawings to exclude any development proposed to occur on 107 Quay Street, and for the Council to advise whether it agreed to the Respondent amending its development application. Further directions were made on 11 April 2022 requiring the Respondent to file further plans by 29 April 2022, and for the Council to provide its "comments" by 27 May 2022. 2. The Council provided submissions on 27 May 2022, annexing expert comments by Ms Pressick, the Council's urban design expert. In that document, Ms Pressick identified the proposed changes the subject of the Revision 12 Plans, expressed a view concerning the issues that arose as a result of the latest form of amendments and opined that the changes resulted in a scheme that did not exhibit design excellence. A particular issued raised by Ms Pressick related to the Level 17 garden in the south-west corner. Whereas previously the garden was open to the sky and open on its southern side with two large trees depicted on the plans, under the Revision 12 Plans, the garden was to be entirely covered by the retained roof, it was to have a retained glazed wall and columns along its southern edge, and the two large trees would not be viable due to the wall and roof. Ms Pressick also raised issues regarding the retention of the glazed facade on the southern elevation of Levels 16 and 17, and the retention of part of the balcony and all of the balustrade on the southern boundary on Levels 5-15. She made the point that the impacts on the design of the building and landscaping due to the retention of these elements had not been assessed by the Council and its experts, and that these impacts were not considered in evidence before the Court. She concluded that the changes resulted in a scheme that did not exhibit design excellence, and that the Respondent should have the opportunity to redesign the building to better accommodate the changes arising from the retention of works over the boundary. 3. In the Second Judgment, relevantly for present purposes the Commissioner did no more than maintain her findings in her First Judgment in relation to the DA "in its final form": at [2]. She then proceeded to make the following statement in the same paragraph: In particular, following a review of the development application in its final form and consideration of the further submissions made by Ms Reid on behalf of the Respondent, I maintain my findings of satisfaction that the proposed development exhibits design excellence ... 1. That statement is insufficient to discharge the Commissioner's obligation to give proper consideration to the submission and expert comments provided by the Council on 27 May 2022. Whether expressed as a constructive failure to exercise jurisdiction or a failure to accord natural justice, there will be jurisdictional error where the Commissioner in substance fails to address clearly material arguments or questions raised for her consideration: Georges River Council v S A F Group Pty Ltd [2021] NSWLEC 151 (S A F Group) at [46]-[49], citing El Boustani v Minister administering the Environmental Planning and Assessment Act 1979 (2014) 199 LGERA 198 (El Boustani) at [156]-[157]. Ground 4 1. Further or alternatively to Ground 3, the Commissioner failed to provide any reasons at all in support of her conclusion that the proposed development "in its final form" exhibits design excellence in accordance with cl 6.21 of the SLEP. 2. The requirements of the obligation to give reasons are not in any doubt and were discussed at length in S A F Group at [71]-[73] and Woollahra Municipal Council v SJD D82 Pty Ltd [2020] NSWLEC 115 at [92]-[100]. Ultimately, the reasons of a Commissioner must be sufficient to enable an appellate tribunal to gain a proper understanding of the basis of the decision. 3. In this case, however, there was an abject failure to meet that standard. The amendments made the subject of the Revision 12 Plans were not insignificant, had different impacts to those the subject of the earlier plans and, based on Ms Pressick's comments, were not without controversy. No reasons were provided for the conclusion that the development "in its final form" exhibited design excellence in accordance with cl 6.21 of the SLEP. That was a critical jurisdictional matter in respect of which the Commissioner was obliged to expose her reasoning process. Respondent's submissions Ground 3 1. In essence, Ground 3 asserts that the Commissioner failed to consider the evidence of Ms Pressick. This ground should be rejected. 2. At [2] of the Second Judgment the Commissioner specifically stated that she had considered the further submissions made by Ms Reid on behalf of the Respondent. Those submissions expressly incorporate the expert opinion of Ms Pressick. Paragraph 9 of those submissions states: Attached to these submissions are expert comments by Ms Pressick, urban designer for the Council in relation to the revision 12 plans which identify the concerns that arise from the retention of the encroaching structures, consistent with her evidence in the proceedings. 1. Contrary to the authorities, the Council is seeking to take a fine-tooth comb approach to the judgment of the Commissioner. Counsel for the Council in her written submissions at paragraph 10, made submissions as to how the Court should proceed. The Court followed that submission to the letter. In doing so, it had regard to the submissions of Ms Reid which incorporated the comments of Ms Pressick. The Commissioner in terms stated at [2]: …following a review of the development application in its final form and consideration of the further submissions made by Ms Reid on behalf of the Respondent, I maintain my findings of satisfaction that the proposed development exhibits design excellence satisfying the precondition contained at cl 6.21C of the Sydney Local Environmental Plan 2012 (LEP 2012). 1. No application was made by the Council to reopen and adduce further evidence, however, it is apparent that the Commissioner gave consideration to the submission of the Council, which included the comments of Ms Pressick. It cannot be said that Ms Pressick's material was overlooked because it was material attached to the submissions, which were expressly referred to. Moreover, the additional comments could not be said, objectively, to be of such materiality as to reflect a basic misunderstanding of the Council's case that it could be said to amount to a constructive failure to exercise jurisdiction: State Super SAS Trustee Corporation v Cornes [2013] NSWCA 257, cited with approval in El Boustani at [157]. 2. Quite apart from the fact that there was no application by the Council to reopen its case and tender Ms Pressick's material as evidence, there was no requirement for the Commissioner to address Ms Pressick's comments in detail: Segal v Waverley Council at [93]. The import of the further submissions should not be overstated. It is of note that Ms Reid also submitted below that it was open to the Court to approve the application in its unamended form subject to a condition that there be no works over the boundary. The Court of Appeal did the same thing in Sutherland Shire Council v Bluewater District Services [1999] NSWCA 437. That being so, it could hardly be said that the additional comments by Ms Pressick were of such moment that they were central to the decision and needed to be dealt with by the Commissioner in detail. 3. For the above reasons, Ground 3 should be dismissed. Ground 4 1. Contrary to Ground 4, the Commissioner did give reasons in relation to the opinion she had to form under cl 6.21 of the SLEP. Those reasons are set out in [14]-[21], [31]-[35], [50]-[54] and [56]-[60] of the First Judgment and are confirmed in [2] of the Second Judgment. They are further supported by the reasons for upholding the appeal on the merits at [86]-[125], which included matters relating to design excellence as the Commissioner made clear at [56]. 2. It is plain from the findings at [2] of the Second Judgment that the Commissioner considered the submissions of Ms Reid which included the evidence of Ms Pressick and she found that neither changed her previous opinion that the development exhibited design excellence. 3. Ground 4 should be dismissed. Findings on Grounds 3 and 4 1. At [2] of the Second Judgment the Commissioner held: …I maintain my findings of satisfaction that the proposed development exhibits design excellence satisfying the precondition contained at cl [6.21(3) and (4)] of the Sydney Local Environmental Plan 2012 (LEP 2012). In reaching this state of satisfaction I have had regard to the matters listed at subcl [(4)] of cl [6.21] as they relate to the development application. I am satisfied that the preconditions to consider in the relevant environmental planning instruments are met by the development application. 1. For the reasons outlined above in connection with Grounds 1 and 1A the maintenance of the Commissioner of her earlier satisfaction can only be read in the same context and subject to the same limitations she imposed upon the consideration of the matters as required by cl 6.21 of the SLEP. The Second Judgment carries the same deficiency identified with respect to the First Judgment. 2. Notwithstanding, I do not accept the Council's submission that the Commissioner did not have regard to the additional comments of Ms Pressick. The Commissioner expressly referred to a consideration of the Council's written submissions which document contained those comments. To read the Commissioner's words as somehow suggesting that she read only part of the submission and not the whole is to impermissibly read the Commissioner's reasons with an eye to error. 3. I dismiss Ground 3. 4. However, accepting, as I must, that the Commissioner did consider the commentary of Ms Pressick she was obliged to give reasons as to why, notwithstanding that commentary, she reached the conclusion that she did. It was apparent from the commentary of the Council that the amendments made to the application made changes to the substance of the built form including the roof terrace. Those changes were not, and logically could not, have formed part of the Commissioner's reasoning in the First Judgment. By merely restating her satisfaction in the First Judgment the Commissioner has not exposed at all how the findings in the First Judgment could be maintained in light of the changes that occurred in the amendment. 5. Accordingly, I find that the Commissioner has erred in that she failed to give adequate reasons relating to the satisfaction on merit of the amendments insofar as such satisfaction resulted in a maintenance of her earlier findings. I uphold Ground 4. Costs 1. The usual order in proceedings of this type is that costs follow the event. Having found in the Council's favour on all grounds except Ground 3 I consider that the Council has been relevantly successful. The failure on Ground 3 is not significant in the exercise of my discretion as its substance was pleaded in the alternative form in Ground 4 which I upheld. 2. For those reasons, I will make the usual order and require the Respondent to pay the Council's costs of the appeal. Conclusions and orders 1. For the reasons outlined above I find that each of Grounds 1, 1A, 2, 2A and 4 have been made out and that the appeal should be upheld. 2. In light of the nature of the errors disclosed, it is appropriate that the matter be remitted to the Commissioner for further determination in accordance with these reasons. 3. The Court orders: 1. The appeal is allowed on Grounds 1, 1A, 2, 2A and 4 of the Further Amended Summons Commencing an Appeal filed in Court on 14 December 2022; 2. Orders 1 and 3 made by Dickson C on 20 June 2022 are set aside; 3. The matter is remitted to Dickson C for determination in accordance with this decision; 4. The Respondent is to pay the Council's costs of the appeal; 5. List the matter before the Registrar on 24 March 2023 for directions in connection with the remitter; and 6. The exhibits are returned. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 17 March 2023