Land and Environment Court New South Wales Medium Neutral Citation: Willoughby City Council v Blanc Black Projects Pty Limited [2023] NSWLEC 54 Hearing dates: 30 November 2022 Date of orders: 24 May 2023 Decision date: 24 May 2023 Jurisdiction: Class 1 Before: Robson J Decision: See orders at [155] Catchwords: APPEAL — Section 56A of the Land and Environment Court Act 1979 (NSW) — Appeal against a Commissioner's decision to refuse the imposition of an affordable housing condition when determining a development application in a Class 1 appeal — Whether the Commissioner misconstrued the applicable legislative scheme — Application of s 7.32 of the Environmental Planning and Assessment Act 1979 (NSW) — Application of cl 6.8 of the Willoughby Local Environmental Plan 2012 and cl 10 of the State Environmental Planning Policy No 70—Affordable Housing (Revised Scheme) — Consideration of the Newbury tests in the context of the statutory provision — Errors of law found — Appeal upheld — Remitter order made Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW), ss 4.17, 7.32, 7.33 Environmental Planning and Assessment Amendment (Affordable Housing) Act 2000 (NSW) Environmental Planning and Assessment Amendment (Affordable Housing) Bill 2000 (NSW) Interpretation Act 1987 (NSW), ss 3, 5, 32, 33 Land and Environment Court Act 1979 (NSW), s 56A State Environmental Planning Policy No 70—Affordable Housing (Revised Schemes), cl 10, Sch 2 Willoughby Local Environmental Plan 2012, cll 1.2, 6.8 Cases Cited: 4nature Incorporated v Centennial Springvale Pty Ltd (2017) 95 NSWLR 361; [2017] NSWCA 191 Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 Blanc Black Projects Pty Limited v Willoughby City Council [2022] NSWLEC 1135 Brayson Motors Pty Ltd (in liq) v Federal Commissioner of Taxation (1985) 156 CLR 651; [1985] HCA 20 Brimbella Pty Ltd v Mosman Municipal Council (1985) 79 LGERA 367 Cavasinni Constructions Pty Ltd v Fairfield City Council [2010] NSWLEC 65; (2010) 173 LGERA 456 Community Association DP 270253 v Woollahra Municipal Council [2013] NSWLEC 184; (2013) 211 LGERA 412 Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135; [2000] HCA 5 Council of the City of Sydney v Vision Land Glebe Pty Ltd [2019] NSWLEC 60; (2019) 243 LGERA 25 Dogild Pty Ltd v Warringah Council [2008] NSWLEC 53; (2008) 158 LGERA 429 El Khouri v Gemaveld Pty Ltd [2023] NSWCA 78 Gedeon v Commissioner of the New South Wales Crime Commission; Dowe v Commissioner of the New South Wales Crime Commission (2008) 236 CLR 120; [2008] HCA 43 Gray v Sutherland Shire Council [2016] NSWLEC 64 Guideline Drafting & Design v Marrickville Municipal Council (1988) 64 LGRA 275 Hope v Bathurst City Council (1980) 144 CLR 1; [1980] HCA 16 Kostas v HIA Insurance Services Pty Ltd (t/as Home Owners Warranty) (2010) 241 CLR 390; [2010] HCA 32 Liverpool City Council v Moorebank Recyclers Pty Ltd; Benedict Industries Pty Ltd v Minister for Planning (No 2) [2017] NSWLEC 53 Mahony v Industrial Registrar of New South Wales (1986) 8 NSWLR 1 McPhee v S Bennett Ltd (1934) 52 WN (NSW) 8 Meriton Apartments Pty Ltd v Minister for Urban Affairs and Planning [2000] NSWLEC 20; (2000) 107 LGERA 363 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 Minister for Immigration and Citizenship v SZJGV; Minister for Immigration and Citizenship v SZJXO [2009] HCA 40; (2009) 238 CLR 642 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 Minister for Immigration, Citizenship and Multicultural Affairs v RGKY [2022] FCAFC 177 Newbury District Council v Secretary of State for the Environment [1981] AC 578 Northcott v The Owners – Strata Plan No 31143 [2020] NSWLEC 62 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 Sydney Seaplanes Pty Ltd v Page (2021) 106 NSWLR 1; [2021] NSWCA 204 SZTAL v Minister for Immigration and Border Protection; SZTGM v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34 Thaina Town (On Goulburn) Pty Ltd v City of Sydney Council (2007) 71 NSWLR 230; [2007] NSWCA 300 Tovir Investments Pty Ltd v Waverley Council [2014] NSWCA 379 Western Australian Planning Commission v Temwood Holdings Pty Ltd (2004) 221 CLR 30; [2004] HCA 63 Texts Cited: Macquarie Dictionary, 6th ed (2013) Category: Principal judgment Parties: Willoughby City Council (Appellant) Blanc Black Projects Pty Limited (Respondent) Representation: Counsel: M Wright SC with D W Robertson (Appellant) P Tomasetti SC (Respondent) Solicitors: Maddocks Lawyers (Appellant) BCP Lawyers & Consultants (Respondent) File Number(s): 2022/00106466 Publication restriction: Nil Decision under appeal Court or tribunal: Land and Environment Court of New South Wales Jurisdiction: Class 1 Citation: [2022] NSWLEC 1135 Date of Decision: 17 March 2022 Before: Bradbury AC File Number(s): 2021/00169065 Judgment Nature of appeal and outcome 1. In these Class 1 proceedings brought pursuant to s 56A of the Land and Environment Court Act 1979 (NSW) ('Court Act'), Willoughby City Council ('Council') appeals on questions of law against part of a decision of an Acting Commissioner ('Commissioner') which upheld an appeal brought by Blanc Black Projects Pty Limited ('Blanc Black') against Council's deemed refusal of a development application but declined to impose a condition requiring a monetary contribution for the provision of affordable housing in the Willoughby local government area. 2. Council contends that the Commissioner erred in law by misconstruing and misapplying the statutory provisions governing the imposition of an affordable housing condition and, correspondingly, by finding that a like condition was not authorised in the present case. Blanc Black denies the errors of law pleaded by Council and contends that the appeal should be dismissed with costs. 3. For the reasons that follow, I find that the part of the Commissioner's judgment concerned with the imposition of an affordable housing condition was affected by errors on questions of law, and consequently that the matter, as far as the imposition of a proposed affordable housing condition is concerned, should be remitted to the Commissioner for determination in accordance with this judgment. Background 1. Although the appeal concerns only one aspect of the Commissioner's decision, given the manner in which Council has presented the appeal, raising six separate and somewhat overlapping, grounds of appeal, an understanding of the background facts and the statutory context in which the decision of the Commissioner was made is appropriate. 2. Blanc Black lodged a development application with Council on 9 April 2021 seeking development consent to demolish two existing dwelling houses and erect a four-storey residential flat building comprising 12 apartments at 58-60 Eastern Valley Way, Northbridge ('site'). Although at the time of the application and the decision under appeal the site was zoned "R3 Medium Density Residential" under the Willoughby Local Environmental Plan 2012 ('WLEP'), prior to the making of the WLEP on 31 January 2013, the site was zoned "2(a)—Residential "A"" under the Willoughby Local Environmental Plan 1995 pursuant to which residential flat buildings were not permitted. At the time of the application, the site was also within "Area 3" of the Special Provisions Area Map in the WLEP which (per cl 6.8(2) of the WLEP) directs the consent authority to take certain matters in relation to the provision of affordable housing into consideration in granting development consent. 3. On 11 June 2021, Blanc Black commenced a Class 1 appeal against Council's deemed refusal of the development application, and the appeal was heard by the Commissioner on 1 and 2 December 2021 and 22 February 2022. 4. On the first day of the hearing before the Commissioner, Council filed its without prejudice draft conditions of consent which included a proposed condition formulated as follows: "27 Affordable Housing Monetary Contribution The applicant shall make a monetary contribution for the purpose of providing Affordable Housing that is calculated at 4% of the accountable total floor area of the development to Council. In calculating the monetary contribution reference is to be made to the market value of dwellings of a similar size and taken from the most recent median sales price of such dwellings for the Willoughby local government area as documented in the Rent and Sales Report NSW published by Housing NSW or, if another document has been approved for that purpose by the Director-General, that document. Prior to payment of the contribution evidence shall be submitted to Council's Director of Planning & Infrastructure demonstrating how the contribution has been calculated in accordance with the above requirement. The contribution is to be paid prior to release of the construction certificate." ('Condition 27') 1. As Blanc Black opposed the imposition of Condition 27, the Commissioner allowed the parties to marshal evidence in respect of the proposed condition. Council's evidence supporting the imposition of Condition 27 was given by its town planner, Mark Bolduan, and Blanc Black's evidence was given by its town planner, Stephen Gouge. Mr Bolduan and Mr Gouge each prepared an expert report and gave oral evidence. 2. On 17 March 2022, the Commissioner handed down judgment upholding the appeal and granting consent for the demolition of existing buildings and the construction of a new residential flat building comprising 11 apartments over basement carparking at the site, subject to conditions which did not include Condition 27: Blanc Black Projects Pty Limited v Willoughby City Council [2022] NSWLEC 1135. 3. Blanc Black commenced these proceedings pursuant to s 56A of the Court Act on 13 April 2022. Legislative provisions 1. As Council's six grounds of appeal primarily concern the interpretation and application of legislative provisions concerning the imposition of affordable housing conditions, it is appropriate to record the relevant provisions which have been the focus of the Commissioner's decision and the detailed submissions made by the parties, being ss 4.17 and 7.32 (formerly s 94F) of the Environmental Planning and Assessment Act 1979 (NSW) ('EP&A Act'); cl 10 and Sch 2 of State Environmental Planning Policy No 70—Affordable Housing (Revised Schemes) ('SEPP 70'); and, cl 6.8 of the Willoughby Local Environmental Plan 1995 ('WLEP'). 2. Sections 4.17 and 7.32 of the EP&A Act relevantly provided: 4.17 Imposition of conditions (1) Conditions—generally A condition of development consent may be imposed if— … (h) it is authorised to be imposed under section 4.16(3) or (5), subsections (5)–(9) of this section or section 7.11, 7.12, 7.24 or 7.32. … 7.32 Conditions requiring land or contributions for affordable housing (1) This section applies with respect to a development application for consent to carry out development within an area if a State environmental planning policy identifies that there is a need for affordable housing within the area and: (a) the consent authority is satisfied that the proposed development will or is likely to reduce the availability of affordable housing within the area, or (b) the consent authority is satisfied that the proposed development will create a need for affordable housing within the area, or (c) the proposed development is allowed only because of the initial zoning of a site, or the rezoning of a site, or (d) the regulations provide for this section to apply to the application. (2) Subject to subsection (3), the consent authority may grant consent to a development application to which this section applies subject to a condition requiring: (a) the dedication of part of the land, or other land of the applicant, free of cost to be used for the purpose of providing affordable housing, or (b) the payment of a monetary contribution to be used for the purpose of providing affordable housing, or both. (3) A condition may be imposed under this section only if: (a) the condition complies with all relevant requirements made by a State environmental planning policy with respect to the imposition of conditions under this section, and (b) the condition is authorised to be imposed by a local environmental plan, and is in accordance with a scheme for dedications or contributions set out in or adopted by such a plan, and (c) the condition requires a reasonable dedication or contribution, having regard to the following: (i) the extent of the need in the area for affordable housing, (ii) the scale of the proposed development, (iii) any other dedication or contribution required to be made by the applicant under this section or section 7.11. … 1. SEPP 70 (as at 28 February 2019 to 25 November 2021) relevantly provided: … 3 Aims of Policy (1) (Repealed) (2) This Policy: (a) identifies that there is a need for affordable housing across the whole of the State, and … (c) makes a requirement with respect to the imposition of conditions relating to the provision of affordable housing. … 6 Land to which Policy applies This Policy applies to the whole of the State. 7 Relationship to other environmental planning instruments (1) If any other environmental planning instrument, whether made before or after this Policy, contains provisions that are inconsistent with this Policy, this Policy prevails to the extent of the inconsistency, subject to section 3.28(4) of the Act. (2) (Repealed) 8 Definition of "affordable housing" For the purposes of the definition of affordable housing in section 1.4(1) of the Act, very low income households, low income households and moderate income households are those whose gross incomes fall within the following ranges of percentages of the median household income for the time being for the Greater Sydney (Greater Capital City Statistical Area) or the Rest of NSW (Greater Capital City Statistical Area) according to the Australian Bureau of Statistics: Very low income household less than 50% Low income household 50 or more but less than 80% Moderate income household 80–120% 9 Identification of need for affordable housing For the purposes of section 7.32(1) of the Act, this Policy identifies that there is a need for affordable housing within each area of the State. 10 Requirement for imposition of section 7.32 conditions Pursuant to section 7.32(3)(a) of the Act, the following requirement is prescribed with respect to the imposition of conditions under section 7.32 of the Act on development consents: A consent authority is to have regard to the affordable housing principles set out in Schedule 2 before imposing such a condition. Schedule 1 (Repealed) Schedule 2 Affordable housing principles (Clause 10) 1 Where any of the circumstances described in section 7.32(1)(a), (b), (c) or (d) of the Act occur, and a State environmental planning policy or local environmental plan authorises an affordable housing condition to be imposed, such a condition should be imposed so that mixed and balanced communities are created. … 1. Clause 6.8 of the WLEP provided: 6.8 Affordable housing (1) For the purposes of this clause, the Willoughby Affordable Housing Principles are as follows— (a) affordable housing must be provided and managed in Willoughby so that accommodation for a diverse residential population representative of all income groups is available in Willoughby, and (b) affordable housing must be rented to tenants whose gross household incomes fall within the following ranges of percentages of the median household income for the time being for the Greater Sydney (Greater Capital City Statistical Area) according to the Australian Bureau of Statistics— Very low income household less than 50% Low income household 50% or more, but less than 80% Moderate income household 80–120% and at rents that do not exceed a benchmark of 30% of their actual household income, and (c) dwellings provided for affordable housing must be managed so as to maintain their continued use for affordable housing, and (d) rental from affordable housing received by or on behalf of the Council, after deduction of normal landlord's expenses (including management and maintenance costs and all rates and taxes payable in connection with the dwellings), and money from the disposal of affordable housing received by or on behalf of the Council must be used for the purpose of improving or replacing affordable housing or for providing additional affordable housing in Willoughby, and (e) affordable housing must consist of dwellings constructed to a standard that, in the opinion of the consent authority, is consistent with the same type of dwellings within the development to which the development application relates, especially in terms of internal fittings and finishes, solar access and privacy. (2) Development consent must not be granted to the erection of residential accommodation on land identified as "Area 3" or "Area 9" on the Special Provisions Area Map unless the consent authority has taken the following into consideration— (a) the Willoughby Affordable Housing Principles, (b) the impact the development would have on the existing mix and likely future mix of residential housing stock in Willoughby, (c) whether one of the affordable housing conditions should be imposed on the consent for the purpose of providing affordable housing in accordance with the Willoughby Affordable Housing Principles. … (3) The following are the affordable housing conditions— … (b) a condition requiring the payment of a monetary contribution to the consent authority by the applicant that is the value, calculated in accordance with subclause (4), of 4% of the accountable total floor space, … (4) The amount of the contribution to be paid under a condition imposed under subclause (2)(c) is the value of the gross floor area concerned calculated by reference to the market value of dwellings of a similar size to those proposed by the development application. … (7) In this clause— accountable total floor space means the following— (a) for development on land identified as "Area 3" on the Special Provisions Area Map—the gross floor area of the residential component of the development, excluding the residential floor space of the development that is used for affordable housing … Decision under review 1. An understanding of the Commissioner's reasoning in relation to his refusal to impose Condition 27 provides context to my consideration of the grounds of appeal. 2. At [56]-[120], the Commissioner dealt carefully with each of the "merit issues in dispute" raised in Council's statement of facts and contentions in relation to the proposed development, including, building height; overdevelopment; urban design; flooding; and planning precedent, in a manner that does not require consideration. The Commissioner then dealt with what he aptly described as the "major dispute" between the parties, being, the inclusion of Condition 27 at [122]-[171]. 3. At [128]-[138], the Commissioner recorded the legislative provisions relevant to the imposition of a condition relating to affordable housing, being, s 7.32 of the EP&A Act; cl 10 and Sch 2 SEPP 70; and cl 6.8 of the WLEP and, at [139]-[148], summarised the expert evidence of Mr Bolduan and Mr Gouge in relation to Condition 27. 4. Relevantly, the Commissioner noted Mr Bolduan's evidence that, although the proposed development would have no impact on the existing mix of housing stock, it would have an impact on the future mix of housing stock because, without a monetary contribution, the funds otherwise available to Council to provide affordable housing would be reduced. The Commissioner then noted Mr Gouge's evidence that while there is an identified need for affordable housing in the Willoughby local government area, that need already exists and does not relate to, and has no apparent nexus with, the proposed development in circumstances where the proposed development will replace two existing dwelling houses with 11 new apartments which will only result in a negligible change in the existing mix of residential housing in the Willoughby local government area. 5. The Commissioner then considered the application of the relevant provisions and rejected Council's submission that the inclusion of a condition requiring Blanc Black to pay a monetary contribution for the provision of affordable housing was lawful and reasonable in the circumstances of the case. 6. The Commissioner found, first, that s 7.32 of the EP&A Act (hereinafter, 's 7.32') applied to Blanc Black's proposal by reason of the proposed development only being allowed because of the rezoning of the site under the WLEP (in satisfaction of s 7.32(1)(c)). The Commissioner then considered the prerequisites for the imposition of an affordable housing condition contained in s 7.32(3). 7. In reference to s 7.32(3)(a), the Commissioner considered cl 10 of SEPP 70 which mandates attention being given to the "Affordable housing principles" listed in Sch 2 of SEPP 70 before imposing an affordable housing condition. In particular, the Commissioner noted 'Principle 1' of Sch 2 of SEPP 70 which provided that where any of the circumstances described in s 7.32(1)(a), (b), (c) or (d) occurred, and a condition is otherwise authorised under a state environmental planning policy or a local environmental plan, it should be imposed. 8. As such, and insofar as s 7.32(3)(b) requires that a proposed condition be "authorised" (to be imposed) by the applicable local environmental plan, the Commissioner then considered the preconditions contained in cl 6.8 of the WLEP (hereinafter, 'cl 6.8'). 9. In relation to the "Willoughby Affordable Housing Principles", defined in cl 6.8(1), and relevant to the imposition of Condition 27 by virtue of cl 6.8(2)(c), the Commissioner did not read 'Principle (a)' as "providing any more than high level general support for the provision of affordable housing when appropriate", and found, at [158], that the remaining principles "are not directly relevant to the issue of whether a condition should be imposed requiring the provision of affordable housing." 10. In relation to cl 6.8(2)(b), which required consideration of the potential impact of the development on the existing mix and likely future mix of residential housing stock in the Willoughby local government area, the Commissioner considered the expert evidence led by the parties and found, at [161], that the replacement of two existing dwellings with 11 apartments in circumstances where the total number of dwellings in Council's area was around 30,000, with 22 units being provided as affordable housing in 2020, and a planned increase to 50 by 2023, and 70 by 2026, would not have any "material impact on the mix of affordable and other housing in the Council's area." On this basis, the Commissioner concluded, at [170]-[171], that inclusion of Condition 27 was not "authorised by the LEP." 11. By reference to s 7.32(3)(c) of the EP&A Act, the Commissioner also considered whether Condition 27 required a reasonable contribution, having regard to "the extent of the need in the area for affordable housing" (s 7.32(3)(c)(i)), and the "scale of the proposed development" (s 7.32(3)(c)(ii)). Having previously found that the proposed development had no impact on the existing or future mix of affordable and other housing, the Commissioner concluded at [166] that the proposed condition "could not, in [his] view, be said to require a reasonable dedication or contribution." He stated that this conclusion was reinforced in circumstances where "the amount of the contribution payable is fixed at 4% of the accountable total floor space of the development, regardless of the impact of the development on the existing, or future mix of residential housing stock in Willoughby." 12. In addition, at [162]-[169], the Commissioner considered that a proposed condition under s 7.32 was required to meet the second limb of the "Newbury test" (in obvious reference to Newbury District Council v Secretary of State for the Environment [1981] AC 578). He noted that s 7.12 of the EP&A Act (which deals with fixed development consent levies) addresses the second limb of the Newbury test in s 7.12(4). Despite the lack of explicit reference to that effect in s 7.32, the Commissioner noted that s 4.17(1)(h) of the EP&A Act, which deals with the imposition of conditions in development consents, groups the conditions that can be imposed under ss 7.11 (which deals with fixed development consent levies) and s 7.32, and that, relevantly, the conditions imposed under s 7.11 have been held to be subject to the Newbury tests for validity. On this basis, the Commissioner construed s 7.32 as requiring consideration of "whether the condition fairly and reasonably relates to the development the subject of the development application", by reference to the second limb of the Newbury test. 13. In light of his earlier finding that the proposed development would have "no material impact on the mix of affordable and other housing in the Council's area", the Commissioner concluded at [170], that Condition 27 did not "fairly and reasonably relate to the [p]roposed [d]evelopment". 14. The Commissioner concluded at [171] that Condition 27 could not lawfully be imposed in circumstances where it was not "authorised" by the WLEP and s 7.32(3) provides that a condition can only be imposed if "authorised" by a local environmental plan. Grounds of appeal 1. In its summons, Blanc Black pleads that the Commissioner "erred in law" on the following six grounds: "1 The Commissioner erred in finding (at Judgement [171]) that proposed condition 27 was not authorised by clause 6.8 of the Willoughby Local Environmental Plan 2012 (WLEP) and could not be lawfully imposed. 2 The Commissioner erred in finding (at Judgment [170], and see also Judgment [160]-[161]) that for proposed condition 27 to be lawfully imposed, it was necessary for the Proposed Development to have a "material" or "discernible" impact on the existing mix and/or likely future mix of residential housing stock in the Willoughby local government area. 3 The Commissioner erred in finding (at Judgment [170]) that for proposed condition 27 to fairly and reasonably relate to the Proposed Development (in accordance with the second Newbury test), it was necessary for the Proposed Development to have a "material" or "discernible" impact on the existing mix and/or likely future mix of residential housing stock in the Willoughby local government area. 4 The Commissioner erred in finding (at Judgment [170], and see also Judgment [161]) that the Council failed to adduce evidence which: a. described (or "clearly" described) the existing mix or likely future mix of residential housing stock in the Willoughby local government area; and b. demonstrated the impact which the Proposed Development would have on the existing mix or likely future mix of residential housing stock in the Willoughby local government area. 5 In finding that proposed condition 27 could not or should not be imposed because the Proposed Development would not have any "material impact" on the existing mix or likely future mix of affordable and other housing in the Willoughby local government area (at Judgment [170]-[171] and see also [162]-[169]), the Commissioner misconstrued and/or misapplied each of: a. Section 7.32(3) of the Environmental Planning and Assessment Act 1979; b. Clause 6.8(2) and (3) of the WLEP; and c. Clause 10 of State Environment Planning Policy No 70 – Affordable Housing (Revised Schemes) (SEPP 70) and Schedule 1, Principle 1 of SEPP 70. 6 The Commissioner's decision not to impose proposed condition 27 was legally unreasonable in circumstances where: a. there was an identified need for affordable housing in Willoughby by operation of clause 9 of SEPP 70 and clause 6.8(1) of the WLEP; b. the Applicant had failed to amend its development application to exclude the offer to pay an affordable housing contribution set out at pages 21 and 22 of its Statement of Environmental Effects calculated as 4% of the gross floor area of the Proposed Development; c. the Commissioner proceeded on the erroneous basis that there was an evidentiary burden on the Council to "clearly describe" the current or future mix of affordable housing in Willoughby (at Judgment [161]); and d. there was evidence before the Commissioner, which he was not entitled to ignore, to enable the Commissioner to consider the impact the Proposed Development would have on the existing mix and likely future mix of residential housing stock in Willoughby for the purposes of clause 6.8(2)(b) of the WLEP." Relevant principles in s 56A appeals 1. The Court's jurisdiction in an appeal under s 56A of the Court Act is confined to addressing challenges to a commissioner's decision on questions of law. Although elusive, the distinction between what constitutes a question of fact and a question of law is aided by well-established principles (see eg, Hope v Bathurst City Council (1980) 144 CLR 1; [1980] HCA 16) to which I will refer as relevant later in this judgment. 2. However, it is not sufficient to merely establish that the decision under appeal discloses an error of law; rather, an error will only vitiate a decision if it materially affects the decision, in the sense of being a factor upon which the decision depends: Guideline Drafting & Design v Marrickville Municipal Council (1988) 64 LGRA 275 at 280. 3. Despite the above, I remain conscious that it is undesirable in an appeal confined to a question of law to subject a commissioner's decision to a "fine-tooth comb" analysis in search for errors of law that will justify an appeal: Brimbella Pty Ltd v Mosman Municipal Council (1985) 79 LGERA 367 at 368; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 291; [1996] HCA 6. Consideration Introduction 1. Grounds 1, 2, 3 and 5 raise a number of interrelated issues. The primary issue relates to the precise relationship between s 7.32 and cl 6.8, and in particular, whether cll 6.8(2) and 6.8(3) impose jurisdictional preconditions (by virtue of s 7.32(3)(b)) such that an affordable housing condition has to be "authorised" by the WLEP in order to be lawfully imposed under s 7.32; and whether cl 6.8(2) imposes any requirements in relation to the inclusion of conditions when that provision is stated to be concerned with the granting of development consents. 2. The second issue relates to whether cl 6.8(2)(b) requires, as a form of jurisdictional precondition to the imposition of an affordable housing condition, satisfaction that the proposed development will have a "discernible" or "material" impact on the existing mix and likely future mix of residential housing stock in the Willoughby local government area; or whether the existence of any "discernible" or "material" impact is a relevant consideration. 3. An incidental issue arises as to whether cl 6.8(2) ends the inquiry as to the appropriateness of imposing an affordable housing condition, or whether s 7.32(3) imposes additional matters to be considered before imposing a condition. If the latter proposition prevails, it is necessary to further consider whether the Commissioner failed to consider the matters set out in s 7.32(3) by merely focusing on whether the proposed development would have a "material effect" on the existing mix or likely future mix of affordable and other housing in the Willoughby local government area. 4. The third issue relates to whether the Newbury test governs the imposition of an affordable housing condition in s 7.32 and if so, whether it was applied correctly by the Commissioner. 5. In addition to the interrelated issues raised in Grounds 1, 2, 3 and 5 and described above, Ground 4 addresses whether cl 6.8(2)(b) required, as a precondition to imposing Condition 27, the provision of evidence (as to impact), and whether the Commissioner found that there was "no evidence" or was merely unconvinced by the evidence before him. 6. Finally, Ground 6 raises whether the Commissioner's decision not to impose Condition 27 was legally unreasonable. Findings on the construction of s 7.32 of the EP&A Act and cl 6.8 of the WLEP 1. As a resolution of the matters raised in Grounds 1, 2, 3 and 5 turns on the construction to be given to each of s 7.32, cl 6.8 (and cl 10 (and Sch 2) of SEPP 70), it is appropriate to briefly record the principles applicable to statutory construction, and thereafter, to avoid adding unduly to these reasons, to make some observations and findings on the construction of each of these provisions which will be relied upon in my later consideration of the discrete grounds. 2. The starting point for the ascertainment of the meaning of a statutory provision is the text itself, although at the same time, regard may be had to the context in which it appears (understood in the widest sense) and the objectives it was designed to promote: SZTAL v Minister for Immigration and Border Protection; SZTGM v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34 at [14]; 4nature Incorporated v Centennial Springvale Pty Ltd (2017) 95 NSWLR 361; [2017] NSWCA 191 ('4nature') at [51]. The prevailing approach to interpretation emphasises that the purpose underpinning an instrument, guides the preferred meaning to be given to the words being construed: Sydney Seaplanes Pty Ltd v Page (2021) 106 NSWLR 1; [2021] NSWCA 204 at [31]. That purpose is to be inferred from the statutory text and its structure. 3. Nevertheless, the natural and ordinary meaning of the words employed in a statute is also to be considered and given effect: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 ('Project Blue Sky') at [78]. 4. The WLEP and SEPP 70 are environmental planning instruments and are therefore to be construed in accordance with the general principles of statutory interpretation. As such, the relevant provisions in the WLEP and SEPP 70 must be considered in the context of those instruments and a construction which promotes their respective purpose is to be preferred: s 33 of the Interpretation Act 1987 (NSW) ('Interpretation Act') (which applies to environmental planning instruments by operation of s 5(6) of that Act). 5. Allowance must be given to the fact that environmental planning instruments are generally drafted to achieve practical concerns such that infelicitous phrasing may be more readily excused and may justify giving "rather less weight to precise textual considerations": Tovir Investments Pty Ltd v Waverley Council [2014] NSWCA 379 at [54]-[55]. Be that as it may, I remain conscious that there is no specific principle requiring "laxity or flexibility" in construing such instruments generally, and that practical considerations do not permit rewriting to meet what the Court may think is a practical outcome: 4nature at [45], [106]-[107]. 6. As for the interaction between an environmental planning instrument (here, the WLEP), and the statute under which it is made (here, the EP&A Act), s 32 of the Interpretation Act clarifies that an instrument is to be construed in a way which promotes consistency with its empowering Act. Conversely, it is generally impermissible to refer to delegated legislation for the purpose of interpreting the Act under which that subordinate instrument is made. However, this course of action may be appropriate in some circumstances in order to ascertain the nature of the legislative scheme being promoted: Brayson Motors Pty Ltd (in liq) v Federal Commissioner of Taxation (1985) 156 CLR 651; [1985] HCA 20 at 652. 7. In considering the operation of s 7.32, it is first appropriate to have regard to the source of the power conferred by that provision. The overarching power to impose a condition of development consent is conferred by s 4.17 of the EP&A Act (at [12] above), which circumscribes the species of conditions that can be imposed under the EP&A Act by requiring compliance with one or more of the matters listed in 4.17(1). Relevantly, s 4.17(1)(h) provides that a condition may be imposed if "it is authorised to be imposed under … section 7.32" (emphasis added). While not defined under the EP&A Act, the term "authorised", as a matter of ordinary English, refers to the state of being "legally or duly sanctioned": Macquarie Dictionary, 6th ed (2013). It is, therefore, plain that a condition of development consent may be imposed under s 4.17 if it meets the statutory test under s 7.32. 8. Section 7.32 deals with the imposition in development consents of conditions "requiring land or contributions for affordable housing". Subsection (1) sets out the circumstances in which the imposition of an affordable housing condition may be considered in relation to a development application. Subsection (2) defines the types of conditions that may be imposed under this provision, being either a condition requiring the "dedication" of land "free of cost", or the "payment of a monetary contribution" to be used for the purpose of providing affordable housing. Subsection (3) specifies the requirements that must be met before a condition can be imposed under this provision. Noting that a criterion the satisfaction of which enlivens the power of a decision-maker to exercise a discretion is generally characterised as "jurisdictional fact" (Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135; [2000] HCA 5 at [28]; Gedeon v Commissioner of the New South Wales Crime Commission; Dowe v Commissioner of the New South Wales Crime Commission (2008) 236 CLR 120; [2008] HCA 43 at [43]-[44]; El Khouri v Gemaveld Pty Ltd [2023] NSWCA 78 at [33]), I find that both ss 7.32(1) and 7.32(3) constituted like preconditions to which the Commissioner had to turn his mind in order to enliven his discretion to deal with Condition 27. Failure to do so would result in his decision in relation to Condition 27 having been reached without the necessary statutory authority. Whether he did so, in turn, depends on the construction to be given to each of the conjunctive constraints imposed under s 7.32(3) and, because s 7.32(3)(a) is agreed to have been satisfied, specifically those imposed by ss 7.32(3)(b) and 7.32(3)(c). 9. In relation to s 7.32(3)(b), which requires that "the condition [be] authorised to be imposed by a local environmental plan, and [be] in accordance with a scheme for dedications or contributions set out in or adopted by such a plan" (emphasis added), I adopt the same understanding of the term "authorised" as above. As such, by operation of this provision, a decision-maker was bound to satisfy the requirements incidentally imposed by the local environmental plan applicable to the development application concerned (here, the WLEP). 10. Consideration must therefore be given to the construction of cl 6.8, which is binding upon a decision-maker considering the imposition of an affordable housing condition by operation of s 7.32(3)(b). I note, first, that cl 1.2(2)(f) of the WLEP provides that, in relation to housing, the aims of the plan are: … (i) to provide opportunities for a range of housing choice in Willoughby to cater for changing population needs in accessible locations, and (ii) to facilitate the provision of adaptable and affordable housing, (emphasis added) 1. Clause 6.8, which is titled "Affordable housing", operates in this context and addresses the aim stated in cl 1.2(2)(f) broadly, including by enunciating in subcl (1) the "Willoughby Affordable Housing Principles" which are to be considered in determining a development application (cl 6.8(2)(a)), and in imposing affordable housing conditions (cl 6.8(2)(c)). The provision is therefore not to be construed restrictively as being directed only to the manner according to which affordable housing conditions may be imposed. 2. In relation to the relevance of the "Willoughby Affordable Housing Principles" in cl 6.8(1) (at [14] above), for present purposes, I find that, save for providing support for the imposition of affordable housing conditions where appropriate, these principles merely relate to the provision and management of affordable housing, and cannot be viewed as imposing any requirements upon a decision-makers' exercise of its power to impose such conditions. 3. Similarly, I do not find that cl 6.8(2) imposes any jurisdictional constraints upon the power to impose affordable housing conditions in circumstances where that provision is expressly directed to the consideration of affordable housing concerns in the process of determining development applications. While this involves, per cl 6.8(2)(c), considering whether an affordable housing condition should be imposed, cl 6.8(2) does not in and of itself impose any precondition in relation to the imposition of such conditions. So much is reflected in the balance of cl 6.8, with subcll (3), (4) and (6) being dedicated to regulating the types of affordable housing conditions that may be imposed under the WLEP. 4. I further consider that insofar as the WLEP (and specifically cl 6.8) operates in support of the EP&A Act (being the Act under which it was promulgated), it must be read by reference to the language of the provisions in that legislation: s 32 of the Interpretation Act. Therefore, where s 7.32(3) specifies the circumstances under which an affordable housing condition may be imposed, any reliance on cl 6.8 (which does not, on my reading, impose any relevant additional preconditions) is to be limited to the form of conditions that can be imposed. As will be seen later, I therefore accept Council's submission that cl 6.8(2) imposes a precondition to the exercise of the power to grant development consent, but not to the exercise of the power to impose affordable housing conditions. 5. In relation to the proper construction of s 7.32(3)(c), I note that the provision requires a decision-maker to be satisfied that a proposed condition constitutes a "reasonable dedication or contribution" having regard to the extent of the need in the area for affordable housing (s 7.32(3)(c)(i)); the scale of the proposed development (s 7.32(3)(c)(ii)); and any other dedication or contribution required to be made by an applicant in relation to affordable housing or towards the provision or improvement of amenities or services (s 7.32(3)(c)(iii), noting that the parties agree that this consideration does not arise on the facts). Aside from these mandatory considerations, I note in passing, that the expression "having regard to" is permissive and leaves it open for a decision-maker to take into account other relevant circumstances. 6. One difficulty that arises in relation to the operation of s 7.32(3)(c) relates to the meaning to be given to the words "reasonable dedication or contribution". Relying on the common law maxim that general words are to be given their primary and natural significance, I consider that reasonableness is to be determined as a question of fact by the decision-maker on the balance of the evidence adduced by the parties in relation to matters going to the mandatory considerations set out in subs (i) to (iii). 7. In the light of the Commissioner's reasoning at [162]-[169], it is further necessary to consider whether s 7.32(3)(c) impliedly imports consideration of the tests for validity espoused by the House of Lords in Newbury, or whether the provision is at least amenable to their application. 8. For clarity, references in the Commissioner's decision to the Newbury test relate to the three broad requirements for the validity of a consent condition originally established by Lord Fraser in Newbury (at 607-608), and subsequently endorsed in Australia under various formulations, including by the High Court in Western Australian Planning Commission v Temwood Holdings Pty Ltd (2004) 221 CLR 30; [2004] HCA 63 ('Temwood') where McHugh J formulated it at [57] as follows: "… A condition attached to a grant of planning permission will not be valid therefore unless: 1. The condition is for a planning purpose and not for any ulterior purpose. A planning purpose is one that implements a planning policy whose scope is ascertained by reference to the legislation that confers planning functions on the authority, not by reference to some preconceived general notion of what constitutes planning. 2. The condition reasonably and fairly relates to the development permitted. 3. The condition is not so unreasonable that no reasonable planning authority could have imposed it." 1. These principles have been adopted and applied by this Court on many occasions: Dogild Pty Ltd v Warringah Council [2008] NSWLEC 53; (2008) 158 LGERA 429; Gray v Sutherland Shire Council [2016] NSWLEC 64; Liverpool City Council v Moorebank Recyclers Pty Ltd; Benedict Industries Pty Ltd v Minister for Planning (No 2) [2017] NSWLEC 53; Northcott v The Owners – Strata Plan No 31143 [2020] NSWLEC 62. 2. Despite this, the validity of a condition of consent is primarily governed by the statutory scheme comprised by the EP&A Act and any applicable local environment plan and state environmental planning policy. In this regard, I note that in Cavasinni Constructions Pty Ltd v Fairfield City Council [2010] NSWLEC 65; (2010) 173 LGERA 456 ('Cavasinni'), Craig J held at [22] that the Newbury tests were additional to the requirements under the applicable statute, and accordingly assessed the validity of the proposed condition, first, by reference to the relevant statutory requirements; and second, so far as was necessary to address the language of the provision, by considering whether the Newbury tests were satisfied. This approach was endorsed by Pain J at [82] in Community Association DP 270253 v Woollahra Municipal Council [2013] NSWLEC 184; (2013) 211 LGERA 412. 3. Applying the findings in Cavasinni, and accepting that attention must be paid to the specific statutory and factual context in which common law principles are to be applied, I therefore consider that it was first and foremost necessary for the Commissioner to assess whether Condition 27 satisfied s 7.32(3)(c), before considering separately the tests elicited in Newbury. 4. Section 7.32(3)(c) requires a decision-maker to form an opinion as to the reasonableness of the quantum of contribution contemplated by a proposed condition, and therefore to assess whether the condition would impose an unreasonable burden upon the applicant to a development proposal. To that extent, I consider that s 7.32(3)(c) picks up the second and third Newbury tests (that a condition must reasonably relate to the development and must not be unreasonable) which could therefore permissibly inform the Commissioner's consideration of the provision. 5. Be that as it may, the language "having regard to the following" is permissive and leaves it open for a consent authority to consider additional matters that may assist the purpose of forming an opinion as to the reasonableness of a proposed condition, including, but not limited to, those stated in Newbury. Ground 1: Did the Commissioner err in finding that Condition 27 was not authorised by cl 6.8 of the WLEP and could therefore not be imposed under s 7.32(2)? Council's submissions 1. Council submits that the Commissioner misconstrued and misapplied both s 7.32 and cl 6.8 and the relationship between those provisions, in particular, by wrongly treating cl 6.8 as the source of his power to impose an affordable condition when this power was in fact conferred by s 7.32. 2. Council accepts that the Commissioner correctly found that there was a "need" for affordable housing in the area within which the proposed development is located and that the proposed development was allowed on the site (only) because of its rezoning under the WLEP (satisfying s 7.32(1)(c)), such that the power to consider the imposition of an affordable housing condition under s 7.32 was enlivened. 3. However, noting the Commissioner's reliance on cl 6.8(2) not being satisfied in his finding that Condition 27 could not be imposed, Council submits that the jurisdictional preconditions to the power to impose affordable housing conditions are set out in s 7.32 and that the Commissioner erred in law when he construed cl 6.8(2) as imposing additional preconditions to the power to impose an affordable housing contribution. 4. In this regard, Council emphasises that cl 6.8(2) is expressly directed to apply to the determination of development consent applications. As such, properly understood, cl 6.8(2) operates as a jurisdictional constraint on the power to grant development consent by requiring consideration of matters related to affordable housing, but it does not regulate the process by which affordable housing conditions are to be considered or imposed. While s 7.32(3)(b) requires that a proposed condition be authorised by the applicable local environmental plan, Council submits that cl 6.8(2) was not relevant to that consideration as it did not impose any requirements in relation to the actual imposition of affordable housing conditions. On this basis, and in circumstances where subcll 6.8(1), (3) and (4) were satisfied, Council submits that, contrary to the Commissioner's finding, the jurisdictional precondition contained in s 7.32(3)(b) was satisfied. 5. Council further submits that the Commissioner's incorrect focus on cl 6.8(2) resulted in an oversight of s 7.32(3)(c) which imposed additional jurisdictional preconditions to the imposition of an affordable housing condition and ought to have been expressly considered, and that the Commissioner's failure to do so constituted a further legal error in the Commissioner's decision. In this regard, Council emphasises in its submissions in reply that ample evidence was provided to allow the Commissioner to consider each of these matters. 6. Therefore, the Commissioner's conclusion was based upon a misconstruction and/or misapplication of cl 6.8 which constitutes an error of law and caused him to conclude erroneously that the proposed condition could not be lawfully imposed. Blanc Black's submissions 1. Blanc Black submits that the Commissioner understood that his power to impose an affordable housing condition arose from s 7.32 and rejects Council's contentions that he erred in his construction and application of the provisions relating to the imposition of affordable housing conditions. 2. In relation to the Commissioner's material reliance on the absence of evidence regarding the matters in cl 6.8(2)(b) in rejecting the imposition of Condition 27, Blanc Black submits that the power to impose an affordable housing condition is conferred by both s 7.32 and cl 6.8. While accepting that s 4.17(1)(h) of the EP&A Act provides that a condition may be imposed upon a development consent if authorised by s 7.32, Blanc Black emphasises that s 7.32(3)(b) in turn provides that, to be imposed, a condition must be further "authorised" to be imposed by a local environmental plan (and in accordance with a scheme adopted by such a plan). As such, Blanc Black submits that cl 6.8(2) operates as a jurisdictional constraint and the Commissioner was correct to conclude that, unless he had evidence to address cll 6.8(2)(b) and 6.8(2)(c), he could not impose the condition. 3. In relation to the Commissioner's application of cl 6.8(2), Blanc Black records the Commissioner's finding that for a proposed condition to be imposed, it must fairly and reasonably relate to the proposed development, which would in turn require a finding that the development will have a material impact on the existing mix and likely future mix of residential housing stock in the Willoughby local government area. Blanc Black further notes the Commissioner's finding that the fact that a development proposal is permitted by the making of the WLEP is not in and of itself sufficient evidence that it will result in a material impact of the kind required to justify the imposition of a condition. 4. In support of the Commissioner's conclusions in relation to cl 6.8(2), Blanc Black submits that in circumstances where there was no evidence that could support a conclusion that Condition 27 constituted a "reasonable contribution", the power to impose the proposed condition was not enlivened because s 7.32(3) could not be "addressed". Although s 7.32(3)(a) was satisfied (as the Commissioner found at [155]), ss 7.32(3)(b) and 7.32(3)(c) were not satisfied on the evidence provided. 5. In relation to s 7.32(3)(c), Blanc black notes that evidence that the proposed development involved the demolition of two existing dwelling houses and replacement with 11 apartments was not sufficient to prove that the proposed development would result in any material impact upon the existing mix and likely future mix of residential housing stock or in any identified loss of affordable housing. Rather, Blanc Black submits that the only "loss" pleaded was a "missed opportunity [to] have the developer pay Council." 6. In light of the requirement to assess whether a proposed condition constitutes a "reasonable dedication or contribution", having regard to matters listed under s 7.32(3)(c), Blanc Black further submits that it was open to the Commissioner to conclude that it would not be appropriate to merely impose a fixed contribution amounting to 4% of the accountable total floor space of the proposed development despite not having any evidence that the development would have an impact on the existing mix or likely future mix of affordable and other housing stock in the Willoughby local government area. 7. It was therefore open to the Commissioner to conclude that Condition 27 was not a reasonable contribution and could not be imposed, and no error of law has been shown. Finding on Ground 1 1. For the reasons that follow, in my view, the Commissioner erred in finding that for the imposition of Condition 27 to be "authorised" pursuant to s 7.32(3)(b), it was necessary for Council to prove, and for the Commissioner to be satisfied, that the proposed development "will have a material impact on the existing and likely future mix of residential housing stock in the Willoughby local government area". Consequently, I find that the Commissioner's reasoning to that effect and resulting conclusion at [171] that Condition 27 was not authorised by the WLEP constituted an error of law. As will be seen, my findings above in relation to the construction of, and interaction between, s 7.32 and cl 6.8 affect my consideration of this ground and a number of the other grounds of appeal. 2. At the outset, and by reference to my construction of the statutory scheme relating to the imposition of affordable housing conditions at [39]-[54], I find that the Commissioner's power was constrained by both s 7.32 and cl 6.8 (by operation of s 7.32(3)(b)) to the extent that either of these provisions set out preconditions to the imposition of affordable housing conditions. However, I do not consider cl 6.8(2) to fall within this category of jurisdictional preconditions in circumstances where the provision is expressly directed to the task of determining development applications. Indeed, cl 6.8(2) states that "[d]evelopment consent must not be granted …" by contrast with, for example, the words in s 7.32(3) that "[a] condition may be imposed under this section only if …". The Commissioner's reliance on cl 6.8(2) was therefore misplaced and, to the extent that it grounded his findings that Condition 27 could not be imposed, it constituted an error of law that was material to his decision not to impose Condition 27. 3. In addition, I consider Condition 27 to be authorised by cl 6.8 in circumstances where it fell within the range of affordable housing conditions that could be imposed: cll 6.8(3) and 6.8(4). On this basis, I accept Council's submission that s 7.32(3)(b) was in fact satisfied, and I find that the Commissioner's conclusion to the contrary at [171] constituted an error of law which resulted from his misconstruction of cl 6.8. 4. I also accept Council's submission that the Commissioner failed to consider the matters set out in s 7.32(3)(c), and that this constituted an additional error of law. As noted above, I consider that s 7.32(3)(c) imposes mandatory matters for consideration by a consent authority when imposing an affordable housing condition. Failure to comply with this mandate therefore results in a want of power to impose (or refuse to impose) a condition. 5. While Blanc Black points to the Commissioner's conclusion at [161] that there was insufficient evidence before him to determine "what if anything was a reasonable contribution" (by reference to the language of s 7.32(3)(c)), I note that the comment relied upon by Blanc Black actually addressed Council's evidence in relation to "the material impact on the mix of affordable housing" (in obvious reference to the wording of cl 6.8(2)(b)). 6. Where a decision-maker is bound to have regard to a particular matter, genuine consideration and intellectual engagement with the given matter is called for: Minister for Immigration, Citizenship and Multicultural Affairs v RGKY [2022] FCAFC 177. Therefore, while it may be that the same evidence (or lack thereof) was relevant to both provisions (albeit differentially), I consider that the Commissioner ought to have expressly and discretely considered the matters listed in s 7.32(3)(c). In the absence of any explicit reasons recording satisfaction of s 7.32(3)(c) (or failure to do so) based on findings on both subs (i) and (ii), I consider that the Commissioner failed to consider the provision to the requisite standard. 7. For these reasons, I find that legal error has been shown and that it has affected the decision made. In these circumstances, Ground 1 of Council's summons should be upheld and the matter in relation to the imposition of Condition 27 should be remitted to the Commissioner for reconsideration. Ground 2: Was it necessary for the proposed development to have a "material" or "discernible" impact on the existing mix or likely future mix of residential housing stock in the Willoughby local government area? Council's submissions 1. While effectively repackaging its earlier submissions in relation to Ground 1, Council submits that the Commissioner's reasoning wrongly treats cl 6.8(2) as requiring satisfaction by a consent authority that a proposed development will have a "material" or "discernible" impact on the existing mix or likely future mix of residential housing stock in the Willoughby local government area before imposing a condition under s 7.32. This construction constitutes an error of law in circumstances where cl 6.8(2) only concerned matters to consider in determining a development application; and where the statutory language of the clause did not include the terms "material" or "discernible" and was clear and unambiguous on its face. 2. In relation to the Commissioner's alleged misconstruction of s 7.32(3)(c), Council submits that the provision simply requires the consent authority to consider whether the proposed condition "requires a reasonable dedication or contribution" having regard to the extent of the need, the scale of the proposed development, and any other dedication or contribution required to be made. These are mandatory matters for consideration which the Commissioner failed to take into account when he focused on assessing whether the proposed development would have a "material" or "discernible" impact. 3. As for cl 6.8(2), Council submits that, although requiring, when determining a development application for residential accommodation on land in "Area 3", consideration of "the impact of the development…", the provision does not require an opinion as to whether such impact would be "material" or "discernible". Further, the clause does not require the consent authority to be positively satisfied (by evidence) that the proposed development will have such an impact in order to have jurisdiction to impose a condition, but merely requires the matter to be taken into consideration. 4. Council further submits that it is, in any event, not clear what is meant by "material" or "discernible" and that these terms are inherently unclear, vague and imprecise. 5. Council then notes that the Commissioner based his finding about the proposed development's lack of material or discernible impact on a conclusion that it "will not remove any existing affordable housing and only add an additional nine 'other' units". In this regard, Council submits that the reasoning upon which this conclusion relies should be rejected as it would result in a consent authority being unable to "lawfully" impose an affordable housing condition without proving, for example, that a proposed development involved the removal of existing affordable housing, which would undermine the very purpose of affordable housing schemes (being to increase the stock of affordable housing). Blanc Black's submissions 1. Blanc Black submits that cl 6.8(2) in fact imposes a jurisdictional precondition requiring a consent authority to take into consideration whether a proposed development will have an "impact" on the existing mix and likely future mix of residential housing stock in the Willoughby local government area when granting development consent. Blanc Black does not address Council's submission that the operation of the provision is limited to the determination of development applications. 2. In relation to Council's submission that the terms "material" or "discernible" were inappropriately read into the statutory language of cl 6.8(2), Blanc Black submits that the Commissioner properly considered "impact" to mean "more than no impact" and that this was accurately and appropriately captured by his use of the terms "material" and "discernible". Further, insofar as "material" or "discernible" merely qualify the quality of being "measurable", it could not be said that these words were inherently unclear or that the Commissioner erred in his formulation of the test under cl 6.8(2). 3. While not directly relevant to the second ground of appeal, Blanc Black rejects Council's submission that the Commissioner failed to consider s 7.32(3)(c) and submits that, with s 7.32 requiring a condition to be "reasonable", the Commissioner had to find a reasonable nexus between the condition and the proposed development. In this regard, Blanc Black points to the Commissioner's conclusions at [166] that the evidence left him unable to conclude that a contribution would be reasonable in the circumstances of the proposed development. Finding on Ground 2 1. Insofar as the parties raised again in their submissions on Ground 2 the issue of whether cl 6.8(2) constituted a jurisdictional precondition to the imposition of affordable housing conditions under s 7.32, and conscious that this appeal rests upon overlapping grounds, I repeat my findings at [76] and reject the proposition that the Commissioner was bound to be satisfied, in accordance with cl 6.8(2), that the development would have any impact upon the present or future mix of housing in Willoughby before a condition could be imposed. 2. While consideration of the Commissioner's construction of cl 6.8(2)(b) (by reading into the provision the words "material" and "discernible" as qualifying "impact") raised in Ground 2, is rendered somewhat futile by my findings on Ground 1 (dismissing consideration of cl 6.8(2) as informing the inquiry of whether or not to impose an affordable housing condition), I nevertheless make the following comments for the sake of completeness. 3. It is well established that words should not be read into an instrument in the absence of a clear necessity to do so: Project Blue Sky. Departure from the literal interpretation of a provision may however be permissible if necessary to give effect to the evident purpose of an instrument. Any such departure therefore requires satisfaction that the provision fails to give effect to the purpose of the statute (properly understood, in light of the instrument read as a whole) and certainty as to the substance of the provision, Parliament would have had the draftsman's attention drawn to the alleged omission: Minister for Immigration and Citizenship v SZJGV; Minister for Immigration and Citizenship v SZJXO (2009) 238 CLR 642; [2009] HCA 40 at [9]. 4. Clause 6.8(2)(b) relevantly provides: (2) Development consent must not be granted to the erection of residential accommodation on land identified as "Area 3" or "Area 9" on the Special Provisions Area Map unless the consent authority has taken the following into consideration— … (b) impact the development would have on the existing mix and likely future mix of residential housing stock in Willoughby, … 1. I consider the express words used in that provision to be clear and appropriate to give effect to the aim of the WLEP, being to facilitate the provision of adaptable and affordable housing, insofar as it ensures that the imposition of an affordable housing condition will be considered by a consent authority in granting consent to a development proposal. Thus, this is not a case where there was an omission in the language of the instrument that needed to be remedied by the addition of extraneous terms. 2. While I accept Blanc Black's commonsensical submission that "impact" in this context means "more than no impact", I do not find that the adjectives "material" or "discernible" were neither necessary nor accurate qualifiers that could permissibly be read into the provision. 3. Although the imposition of words would prima facie lead to a misapplication of the provision, in circumstances where I found that the Commissioner was not required to apply cl 6.8(2) in his consideration of Condition 27, nothing turns on this finding. Ground 3: Did the Commissioner err in assessing Condition 27 by reference to the second Newbury test and finding that, for Condition 27 to fairly and reasonably relate to the proposed development, it must have a "material" or "discernible" impact on the existing mix or likely future mix of residential housing stock in the Willoughby local government area? Council's submissions 1. Council submits that the Newbury tests do not apply to the imposition of affordable housing conditions under s 7.32. As much is revealed from Parliament's insertion of ss 94F and 94G (now ss 7.32 and 7.33) into the EP&A Act to overturn any judicial application of the Newbury test to assess the validity of a condition of consent requiring land or contributions for affordable housing following the decision in Meriton Apartments Pty Ltd v Minister for Urban Affairs and Planning [2000] NSWLEC 20; (2000) 107 LGERA 363 ('Meriton'). 2. Council further submits that s 7.32(3)(c) expressly sets out the matters to which a consent authority must have regard to in deciding whether to impose an affordable housing condition and relevantly does not include a requirement that a condition "fairly and reasonably relate to" a proposed development. It was therefore not appropriate for the Commissioner to apply the Newbury tests despite the express language of s 7.32(3)(c). 3. In the alternative, Council contends that the Commissioner's misconstruction of s 7.32 and cl 6.8 led him to make erroneous findings upon which he subsequently grounded his analysis of the Newbury tests. This resulted in a misapplication of the Newbury tests and in the Commissioner making a legal error by concluding that Condition 27 contravened the second limb of that test. 4. In relation to the second limb of Newbury and the Commissioner's finding that Condition 27 did not "reasonably and fairly relate" to the proposed development, Council notes, first, that an affordable housing condition can take the form of either a dedication of part of the development's gross floor area for the purpose of affordable housing, or an equivalent monetary contribution. Council then submits that a condition requiring dedication of land the subject of a development application prima facie "fairly and reasonably" relates to that development, and therefore that the statutory alternative to that type of condition must likewise be taken to "fairly and reasonably relate" to a development application. 5. Further addressing the second limb of Newbury, Council contends that in circumstances where Blanc Black benefitted from a rezoning of the site which permitted the construction of the proposed 11-apartment development, a dedication of part of the development free of costs would have been "fairly and reasonably" related to the development. On this basis and bearing in mind that such dedication is but an alternative to a monetary contribution, Council submits that the monetary contribution contemplated by Condition 27 must also be taken to satisfy the second limb of Newbury. Blanc Black's submissions 1. Blanc Black submits that the decision of the High Court in Temwood at [57] supports the Commissioner's finding that a condition of planning consent must meet both the statutory test and the three-fold test in Newbury and that, in any event, s 7.32 expressly enacts the requirement of reasonableness (as does the second and third tests in Newbury). 2. As such, Blanc Black submits that the Commissioner did not fall into appealable error in applying the Newbury tests in circumstances where he described the evidence adduced as "unfortunate" (at [161]) and noted that Condition 27 appeared to contravene the second limb of Newbury as the proposed development was not shown to have a "material impact on the mix of affordable and other housing in the Council's area" (at [161]) such that a condition could therefore not reasonably be required (at [166]). 3. Blanc Black further contends that the Commissioner did not fall into error by failing to consider the imposition of a condition requiring a monetary contribution as an alternative to one requiring dedication. In the circumstances, Blanc Black submits that the Commissioner was simply unable to support a condition requiring Blanc Black to dedicate part of the gross floor area for affordable housing any more than it was empowered to impose a condition requiring a monetary contribution. Finding on Ground 3 1. Relying on my construction of s 7.32(3)(c) at [53]-[54] and [60]-[61] of this judgment, I do not find that the Commissioner's consideration of the Newbury test of validity (and in particular, the second limb) is redolent of legal error. While I accept that the express requirements of a statute must prevail over common law principles, and to that extent that a consent authority is to consider first and foremost the matters set out in s 7.32(3)(c), I consider the language of that provision to be permissive and to allow for consideration of additional matters which a consent authority may find relevant. As such, I find that the Commissioner had the discretion to consider whether the proposed condition complied with the Newbury tests as a matter incidental to his consideration of s 7.32(3)(c). 2. In making this finding, I have considered Council's submissions that consideration of the Newbury tests impermissibly reintroduces the reasoning adopted by this Court in Meriton and allegedly overturned by the enactment of ss 94F and 94G (now ss 7.32 and 7.33). 3. For context, Meriton concerned a challenge to the validity of provisions in a local environmental plan and a related development control plan which implemented an 'affordable housing' scheme. The scheme was held to be invalid on the bases, inter alia, that the provisions challenged sought to confer a power to impose conditions of consent to address affordable housing needs which circumvented the existing sources of power in the EP&A Act; and that the provisions empowered a consent authority to require a contribution to be applied to affordable housing the need for which did not necessarily arise from the consequences of a particular development to which the conditions would apply. 4. In what can be characterised as a legislative response to Cowdroy J's comment in Meriton that "new legislation will be required if it is sought to maintain a scheme for affordable housing", the Parliament passed the Environmental Planning and Assessment Amendment (Affordable Housing) Act 2000 (NSW) ('Amendment Act') enacting ss 94F and 94G which retrospectively validated the existing affordable housing schemes established by local councils in their local environmental plans prior to the amendment. The "Explanatory note" for the Environmental Planning and Assessment Amendment (Affordable Housing) Bill 2000 (NSW), relevantly clarified the purpose and context of the enactment of ss 94F and 94G as follows: The principal object of this Bill is to amend the Environmental Planning and Assessment Act 1979 so as to authorise expressly: (a) the granting of development consents under that Act that require, in certain circumstances, the dedication of land and the making of monetary contributions to be used for the purpose of providing affordable housing, and (b) the making of environmental planning instruments with respect to the retention of affordable housing. … South Sydney Local Environmental Plan 1998 (Amendment No 2)—Green Square was declared to be wholly invalid by the Land and Environment Court on 18 February 2000. That local environmental plan contained (among other amendments to the 1998 plan) amendments establishing a scheme for the imposition of conditions on certain development consents to require the dedication of land or the making of monetary contributions to be used for the purpose of providing affordable housing in the Green Square locality (the Green Square scheme). The decision in the case concerned (Meriton Apartments Pty Ltd v Minister for Urban Affairs and Planning & Or [2000] NSWLEC 20) is the subject of an appeal to the New South Wales Court of Appeal. The Bill proposes to remake and validate the local environmental plan described above, with minor amendments, as South Sydney Local Environmental Plan 1998 (Amendment No 6)—Green Square and to validate a development control plan approved for, and any consents already granted under, the Green Square scheme. … 1. It is therefore apparent that ss 94F and 94G sought to address the absence in the EP&A Act of a source of power enabling a consent authority to impose affordable housing conditions when determining development applications. Indeed in circumstances where Meriton held that the EP&A Act did not authorise the inclusion of provisions requiring dedication of land or a monetary contribution for affordable housing as conditions of consent in a local environmental plan, the retrospective validation of existing affordable housing schemes established prior to the commencement of the Amendment Act reveals that the mischief these provisions were enacted to address related to a want of power to impose affordable housing conditions. 2. However, and contrary to Council's submissions, nothing in the express words of the provision or in the "Explanatory note" suggests that the amendments sought to prevent future reliance on a requirement that a condition "fairly and reasonably relate to" a proposed development in accordance with the Newbury tests. This conclusion is supported by the fact that s 7.32(3)(c) is reflective of the requirement of reasonableness provided by the second and third Newbury tests, and by the permissive language of this provision which leaves a decision-maker with discretion to consider other matters that may be relevant. 3. To that extent, it is appropriate to address Council's further submission that the Commissioner, in any event, erred in his application of the second Newbury test when he concluded that Condition 27 did not "fairly and reasonably relate to the proposed development" and thereby contravened the second limb. In reaching this conclusion, the Commissioner placed particular reliance on the disputed fact that the proposed development would have "no material impact on the mix of affordable and other housing in the Council's area": at [161]. Council submits that, since the Commissioner erred in making this finding (because Council maintained that there would be no contribution to support its adopted affordable housing policy), reliance upon it in turn resulted in a misapplication of the second Newbury test. 4. In this regard, I note, first, that satisfaction of the requirements contained in the Newbury tests depends upon the circumstances of each particular case. As such, and in circumstances where Condition 27 addresses affordable housing needs, I consider that the nature of the impact of the proposed development on the mix of affordable and other housing stock in the Willoughby local government area was a relevant consideration to an assessment of whether Condition 27 fairly and reasonably related to the development. With respect to the Commissioner's alleged failure to consider the fact that the imposition of a monetary contribution constituted a statutory alternative to a condition requiring land dedication, I note that his task consisted of assessing the condition proposed by Council rather than its alternative. I also reject Council's submission that a condition requiring land dedication is necessarily "fairly and reasonably related" to a proposed development such that a condition requiring an equivalent monetary contribution must also be seen to satisfy this test for it may well be that one type is more appropriate than the other in the particular circumstances of a case. 5. Further, and as will be seen later in my consideration of Ground 4, I do not consider the Commissioner's conclusion in relation to the absence of "material impact" to be an appealable error of law (and I do not purport to slide into impermissible merits review by reconsidering such findings). 6. Be that as it may, I consider that an exclusive reliance on the Newbury tests could not ground consideration of the discrete matters set out in s 7.32(3)(c) and to the extent that the Commissioner failed to consider these matters, he made an error of law. Further, I find that the Commissioner's conclusions in relation to the Newbury tests were material to his decision to reject Condition 27. I therefore uphold Ground 3 insofar as it captures the Commissioner's reliance on the Newbury tests to the detriment of his consideration of s 7.32(3)(c). Ground 4: Did the Commissioner err in finding that Council failed to adduce relevant evidence? Council's submissions 1. Council submits that the Commissioner erred in finding at [160]-[161] and [170] that Council had not adduced any evidence that described the impact of Blanc Black's development proposal on the existing mix or likely future mix of affordable and other housing stock in the Willoughby local government area. Council submits that this "no evidence" finding was critical to the Commissioner's conclusion in relation to Condition 27, and therefore gives rise to a question of law. The Commissioner's legal error in this regard is twofold: first, he incorrectly assumed that cl 6.8 imposed a positive obligation on Council, as a jurisdictional precondition to the lawful imposition of an affordable housing condition, to adduce such evidence; and second, he made a "no evidence" finding in circumstances where evidence had in fact been adduced to address the matters in cl 6.8 (and s 7.32(3)). 2. Relying on its submission that cl 6.8 does not operate as a jurisdictional constraint on the power to impose an affordable housing condition, Council contends that cl 6.8 could not be read as imposing a positive obligation on Council to adduce evidence in the absence of which an affordable housing condition could not be considered. 3. As for the Commissioner's "no evidence" finding, Council submits that it had in fact adduced evidence in relation to the current supply and demand for affordable housing and Council's affordable rental housing targets. In light of this evidence, Council submits that the Commissioner was able to make findings in relation to the identified existing and future need for affordable housing in Willoughby, Council's commitment to increase the stock of affordable housing by the addition of approximatively 10 affordable housing units per year, and Blanc Black's failure to dedicate floor space for the provision of affordable housing notwithstanding the site's location in an area expressly designated by Council to contribute to affordable housing needs. On this basis, the Commissioner's finding that more evidence was required to find that Condition 27 represented a "reasonable contribution" and could be imposed, was not open and constituted legal error. Blanc Black's submissions 1. Despite its submission that Council "failed to adduce any evidence" on matters required to be considered by the Commissioner under s 7.32(3)(c) and cl 6.8(2)(b), Blanc Black clarified in oral submissions that evidence in relation to the current demand for affordable housing in the Willoughby local government area, and Council's targets in that regard, had been provided. 2. Blanc Black also clarified its position that the Commissioner's decision did not give rise to a "no evidence" point. Rather, it is apparent on plain reading of the Commissioner's decision that he considered the evidence provided as insufficient to allow a "proper, genuine and realistic consideration [of] cl 6.8(2)(b) and therefore (c)" or "to make any conclusions in s 7.32(3)(b) of the Act" (that the condition was authorised to be imposed by a local environmental plan). As such, Blanc Black submits that the situation is better described as one where "there is evidence but it doesn't persuade the decision maker of something": Tcpt, 30 November 2022, p 27(3)-(5). Finding on Ground 4 1. For the reasons that follow, I do not consider that Ground 4 of Council's summons raises any error on a question of law as is necessary to sustain any appeal under s 56A(1) of the Court Act. 2. First, I do not accept Council's submission that the Commissioner misconstrued cl 6.8 as imposing a positive obligation on Council to adduce evidence describing "the impact the development would have on the existing mix and likely future mix of residential housing stock in Willoughby" as a jurisdictional precondition to the imposition of a condition under s 7.32. While the Commissioner correctly identified cl 6.8 as a jurisdictional precondition to the exercise of his power to impose affordable housing conditions by virtue of s 7.32(3)(b), I do not consider that he treated s 6.8(2)(b) (or s 7.32(3)(c)) as imposing a positive obligation to adduce evidence in relation to the matters prescribed for consideration under those provisions. Rather, insofar as both provisions concern the particular circumstances of a given development proposal and the affordable housing context in which it would take place, his consideration of these matters was necessarily predicated upon, and limited to, the evidence put forward by the parties. 3. Secondly, I do not consider that the Commissioner's findings at [160] that "there is no evidence before the Court that the Proposed Development will have any discernible impact on the mix of affordable and other housing …" (and related finding phrased in similar wording at [170]) constituted an error of law. I do not accept that the Commissioner proceeded on the basis that Council had failed to adduce relevant evidence. Rather, it is clear, on a contextual reading of the Commissioner's findings at [160] and [170] that the evidence before him did not satisfy him that the circumstances in cl 6.8(2)(b) and s 7.32(3)(c) were met. I consider a conclusion, such as the Commissioner's, that evidence adduced is unconvincing to stand in sharp contrast with a finding of no evidence. 4. I further note that underpinning Council's submissions in reply in relation to Ground 4 is an incidental concern that, in making his alleged finding of "no evidence", the Commissioner made a further error of law by failing to consider whether Condition 27 provided for a reasonable contribution having regard to the extent of the need for affordable housing in the Willoughby local government area. To the extent that this submission raises an alleged failure to consider the mandatory matters set out in s 7.32(3)(c), I rely on my findings at [80] and do not address it further in my consideration of Ground 4. 5. To the extent that Council disagrees with the Commissioner's conclusions on the lack of relevant impact and the sparseness of the evidence adduced, I consider that if there is evidence of a fact, the question of whether that evidence ought to be accepted as sufficient to establish the fact is itself a question of fact and not a question of law: McPhee v S Bennett Ltd (1934) 52 WN (NSW) 8 at 9; Council of the City of Sydney v Vision Land Glebe Pty Ltd [2019] NSWLEC 60; (2019) 243 LGERA 25 at [84]. It is also well established that a wrong finding of fact is not an error of law (Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 155; Mahony v Industrial Registrar of New South Wales (1986) 8 NSWLR 1 at 2), noting that an error of law would only arise if there was no evidence to support a finding of fact: Kostas v HIA Insurance Services Pty Ltd (t/as Home Owners Warranty) (2010) 241 CLR 390; [2010] HCA 32 at [91]. 6. In light of the Commissioner's consideration of the evidence of Mr Gouge and Mr Bolduan, and his explicit finding that the circumstances evidenced did not warrant the inclusion of Condition 27, I am satisfied that there was some evidence supporting the Commissioner's factual finding, and I do not consider that this is a case where a finding of fact was made on no evidence. While it may be that the Commissioner stated that evidence adduced by Council was sparse, it is nevertheless clear from his wording at [160]-[161] that he was able to make some findings based on it. 7. Rather, the Commissioner's findings at [161] and [170] constitute findings of fact which I am not to disturb. 8. For these reasons, it has not been established that the Commissioner erred on a question of law in the manner raised in Ground 4. Ground 5: Did the Commissioner err in finding that the proposed development would have no material impact on the existing mix or likely future mix of affordable and other housing in the Willoughby local government area? Council's submissions 1. Council repeats its earlier submissions that the Commissioner misconstrued and misapplied s 7.32(3) by considering the question of "material impact" (on the existing mix or likely future mix of affordable and other housing) instead of having regard to the matters in s 7.32(3), and in particular, the matters in s 7.32(3)(c) which he was bound to consider. 2. Council again submits that the Commissioner also misconstrued cll 6.8(2) and 6.8(3) as imposing jurisdictional preconditions on a consent authority's power to impose an affordable housing condition; and, further, that the Commissioner's reasoning misconstrued and misapplied SEPP 70 as a result of his erroneous construction of cl 6.8 (by finding that cl 6.8 did not "authorise" the imposition of an affordable housing condition because the development would not have a "material impact") thereby failing to comply with the command in cl 10 (and Sch 2, Principle 1) of SEPP 70 that, where there were any circumstances "described" in s 7.32(1)(a) to (d), an affordable housing condition "should be imposed". As this was a mandatory matter, the Commissioner's failure to address it constituted an error of law. Blanc Black's submissions 1. On the basis of this ground effectively replicating Council's earlier submissions, Blanc Black correspondingly repeats its earlier responses and submits that the Commissioner's reasoning that the proposed development would not have a "material impact" (or more than "no impact") on the existing mix or likely future mix of affordable and other housing in the Willoughby local government area was logical and does not constitute an error on a question of law. Finding on Ground 5 1. In circumstances where Council reiterated its contention raised in Grounds 1 and 2 that the Commissioner misconstrued both s 7.32(3) and cl 6.8(2) in finding that Condition 27 could not be imposed in the absence of a "material impact" on the existing mix or likely future mix of affordable housing, I rely on my findings at [75] and [96]. 2. Council's further and novel contention in Ground 5, as I understand it, in essence raises non-compliance with the mandate contained in cl 10 (and Sch 2 of SEPP 70) as an issue following from the Commissioner's misconstruction of cl 6.8 and s 7.32. 3. For clarity, I note that cl 10 of SEPP 70 is relevant insofar as s 7.32(3)(a) requires, as a precondition to the exercise of the power to impose a condition, that the proposed condition complies with the requirements made by an applicable state environmental planning policy with respect to the imposition of an affordable housing condition. I accept Council's submission that, by operation of s 7.32(3)(a), the Commissioner was required to turn his mind to SEPP 70. 4. Clause 10 of SEPP 70 states that a consent authority is to have regard to the affordable housing principles set out in Sch 2 to the instrument before imposing a condition under (now) s 7.32 of the EP&A Act. Relevantly, as noted above, Principle 1 of Sch 2 provides: Where any of the circumstances described in section s 7.32(1) (a), (b), (c) or (d) of the Act occur, and a state environmental planning policy or local environmental plan authorises an affordable housing condition to be imposed, such a condition should be imposed so that mixed and balanced communities are created. (Emphasis added.) 1. The other principles listed in Sch 2 of SEPP 70 relate to the management of affordable housing, and thereby inform the content of a proposed condition, rather than the circumstances which must be satisfied before it can be imposed. To that extent, I do not consider these principles further. 2. While not merely permissive, Principle 1 of Sch 2 in essence reiterates the requirement to consider the matters listed in s 7.32(1) and find that at least one of the circumstances occurs. 3. In addition, I note that while supporting the imposition of a condition where any of the circumstances in s 7.32(1) is satisfied, the term "should" connotates advisability, rather than obligation. This is especially so in the present circumstances where cl 10 of SEPP 70 operates in conjunction with s 7.32 which imposes additional mandatory requirements which must be satisfied before a condition can be imposed. I therefore consider that Principle 1 of Sch 2 is to be read as leaving the decision-maker with discretion to consider other statutorily mandated matters, rather than as constituting an automatic trigger for the imposition of a condition if s 7.32(1) is satisfied. 4. In circumstances where both parties accept that s 7.32(1)(c) was satisfied, I accept that cl 10 of SEPP 70 suggested that a condition "should be imposed". However, and contrary to Council's submission, I find that the Commissioner has both demonstrated an understanding of the operation of this provision, and in fact considered the imposition of a condition as a result of s 7.32(1)(c) being met. This is made clear from the Commissioner's statement at [155] that: "… Clause 10 of SEPP 70 requires me to have regard to the affordable housing principles set out in Sch 2 of SEPP 70 before an affordable housing condition is imposed and housing [P]rinciple 1 provides that, where any of the circumstances described in s 7.32(1)(a), (b), (c) or (d) of the EPA Act occurs and a State environmental planning policy or local environmental plan authorises an affordable housing condition to be imposed, such a condition "should be imposed" so that mixed and balanced communities are created." 1. While Principle 1 of Sch 2 of SEPP 70 is not expressly dealt with further, I find that the Commissioner had in substance done so when he found that s 7.32(1)(c) applied and when he considered later in his decision whether a condition should be imposed. 2. As such, I do not consider that the Commissioner erred in the way alleged by Council in Ground 5 of its summons, at least in relation to his application of cl 10 of SEPP 70. To the extent that I may be wrong, I do not consider in any event, the Commissioner's failure to expressly indicate that he had considered Principle 1 of Sch 2 to be material insofar as that provision substantially replicates the requirement in s 7.32(1), which had been considered and applied by the Commissioner. As such, although I have found (in relation to Ground 1) that the Commissioner erred in his application of s 7.32 and cl 6.8(2), and do not repeat these findings, I do not find that an error has been established in relation to his application of cl 10 of SEPP 70 and therefore, I do not uphold Ground 5 in this respect. Ground 6: Whether the Commissioner's decision to not impose Condition 27 was legally unreasonable? Council's submissions 1. Council submits that the Commissioner's decision not to impose Condition 27 was legally unreasonable considering the following four circumstances: first, where the parties accepted that there was an identified need for affordable housing in the Willoughby local government area by operation of cl 9 of SEPP 70 and cl 6.8(1) (noting that the parties' expert town planners had qualified the need as "significant"); second, where Blanc Black had originally proposed, as part of its development application, the payment of a monetary contribution for the provision of affordable housing in accordance with cl 6.8(3)(b), and had not at any time sought to amend its application or withdraw its proposal to pay the contribution; third, where, as a result of his misconstruction of the applicable provisions, the Commissioner proceeded upon the erroneous basis that Council was obliged to adduce evidence "clearly describ[ing]" the mix of affordable and other housing; and fourth, where there was, in any event, evidence before the Commissioner addressing the impact of the proposed development on affordable housing. 2. Considering these matters, and in circumstances where the Commissioner was empowered pursuant to s 7.32 and cl 6.8 to impose an affordable housing condition (in light of the fact that the site had been rezoned), Council submits that it was unreasonable for the Commissioner to conclude that Condition 27 could not or should not be imposed on the basis that there was no evidence that the proposed development would have any discernible impact on the mix of housing in the Willoughby local government area. 3. Council submits that, considering the four circumstances noted above, the Commissioner's failure to exercise its power to impose an affordable housing condition was unreasonable in a legal sense because it "lack[ed] an evident and intelligent justification" (referring to Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 at [75]-[76]). While noting that the Commissioner's decision need not be irrational, Council submits that unreasonableness is established where an error has been shown in the exercise of discretion such as where a decision-maker acted on a wrong principle or took into consideration an irrelevant matter or in the circumstance where there was no logical connection between the evidence adduced and the inferences drawn. Blanc Black's submissions 1. While accepting that a decision made in the exercise of a statutory power is unreasonable in a legal sense if it "lacks an evident and intelligent justification", Blanc Black submits that the Commissioner's decision was made consistently with the mandate apparent in this principle. 2. Blanc Black accepts there was an existing need for affordable housing (as per cl 9 of SEPP 70) and that the site was rezoned to R3 Medium Density Residential (and included in "Area 3" of the Special Provisions Area Map), but submits that these matters did not on their own empower the Commissioner pursuant to s 7.32 and cl 6.8 to impose an affordable housing condition and further, that Council's submissions overlook the "merits considerations" in both provisions. 3. Blanc Black also submits that Council's references to Blanc Black's earlier position in the development application (and the statement of environmental effects) indicating an intention to pay a (4%) monetary contribution is of no assistance in the consideration of this appeal as it was proposed as part of an earlier iteration of the proposed development. Finding on Ground 6 1. While the standard of legal unreasonableness applies across a range of statutory powers, the indicia of legal unreasonableness must be found in the scope, subject and purpose of the particular statutory provisions and is inevitably fact dependent. 2. Given my finding above in relation to Ground 1 (and derivatively, Grounds 2, 3 and 5), my finding on this ground will not be determinative of this appeal. Despite this, given the Commissioner's reasons, and aside from my finding regarding his consideration of the relationship between s 7.32 and cl 6.8, I do not consider that the four discrete matters raised in this ground by Council (noted at [141]), considered together, are indicative of legal unreasonableness. Thus, but for my finding in relation to the interrelationship between the relevant provisions, the Commissioner's decision does not lack "an evident and intelligible justification". 3. Moreover, noting the frequent references in the authorities to "decisional freedom" relating to the areas in which minds may differ, and conscious of the need for certain self-restraint in reviewing decisions on the ground of legal unreasonableness, I am not satisfied that, read as a whole, the Commissioner's reasoning could be properly described as amounting to legal unreasonableness in the sense that, apart from the error I have otherwise found, the decision does not lack "an evident and intelligible justification". 4. Moreover, whilst it is accepted by Blanc Black that there was an identified need for affordable housing, the fact that Blanc Black had at one stage proposed a payment of a monetary contribution, is not a matter that I consider to be relevant, and I do not accept Council's submission that there was evidence before the Commissioner which he "was not entitled to ignore". Disposal of the appeal 1. The matters to which Ground 1 (and it follows Grounds 2, 3 and 4) of the appeal were directed, were matters fundamental to the Commissioner's decision to refuse to impose Condition 27. As such, that part of the judgment in relation to the imposition of Condition 27, being affected by error on questions of law, should be set aside. The question therefore arises as to whether the matter should be remitted to the Commissioner for determination in accordance with the decision of the Court or instead some other order should be made. 2. Although Council submitted that the Court should exercise its power under s 56A(2)(b) of the Court Act to vary the Commissioner's decision with the effect that Condition 27 be imposed as a condition of consent to Blanc Black's development application, I do not consider this is appropriate. 3. As there are various considerations which could inform the further exercise of the discretion, I note that, save in the case of discretion in relation to costs, the general exercise of discretion to grant a consent or "some other such matter calling for the formulation of an evaluative judgment" should only be exercised in an appeal constrained by provisions such as those in s 56A of the Court Act in "exceptional circumstances": Thaina Town (On Goulburn) Pty Ltd v City of Sydney Council (2007) 71 NSWLR 230; [2007] NSWCA 300 at [108]. I do not find such circumstances exist in the present case. 4. Rather, given my findings that there has been legal error in the matter of determination based upon error in the construction and application of s 7.32 and cl 6.8, I am satisfied that, availing myself of s 56A(2)(a) of the Court Act by remitting the matter to the Commissioner for consideration of the appropriateness of imposing an affordable housing condition to the development consent in light of my determination regarding the appropriate application of the relevant provisions considered in this judgment, is the correct outcome. Orders 1. The orders I make therefore are as follows: 1. Appeal allowed. 2. Set aside so much of the judgment of the Commissioner as determined that Condition 27 not be imposed. 3. Remit the Class 1 appeal made to this Court so far as it seeks to impose Condition 27, for determination by the Commissioner in accordance with this judgment. 4. Unless an application is made within 21 days of the date of this judgment for an alternate order in relation to costs, Blanc Black Projects Pty Limited is to pay Willoughby City Council's costs of this appeal. ********** 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: 24 May 2023