> Land and Environment Court of New South Wales CITATION : Zouki v Liverpool City Council [2003] NSWLEC 35 APPLICANT Joseph Zouki PARTIES : RESPONDENT Liverpool City Council FILE NUMBER(S) : 10200 of 1994 CORAM: Cowdroy J KEY ISSUES: Appeal - Development Consent :- appeal of Commissioner's judgment - substantially the same development - modifications subsequent to original consent - merits of appeal - "fine-tooth" approach LEGISLATION CITED: Environmental Planning and Assessment Act 1979, s 79C, s 96 Land and Environment Court Act 1979, s 56A Azzopardi v Tasman UEB Industries Ltd (1985) 3 NSWLR 139; Brimbella Pty Ltd v Mosman Municipal Council (1993) 79 LGERA 367; Coles v Woollahra Municipal Council (1986) 59 LGRA 133; CASES CITED: Cyril Smith & Associates Pty Ltd v Waverley Council [2001] NSWLEC 150; Moto Projects (No. 2) Pty Ltd v North Sydney Council (1999) 106 LGERA 298; North Sydney Council v Michael Standley & Associates (1998) 43 NSWLR 468; 97 LGERA 433 ; Randwick Municipal Council v Crawley and Others (1986) 60 LGRA 277 ; Vacik Pty Limited v Penrith City Council (Stein J, NSWLEC, 24 February 1992, unreported) DATES OF HEARING: 10/02/2003 DATE OF JUDGMENT: 02/28/2003 APPLICANT Mr J. Robson (Barrister) SOLICITORS M E McMahon and Associates LEGAL REPRESENTATIVES: RESPONDENT Mr I. Hemmings (Barrister) SOLICITORS Marsdens Law Group JUDGMENT: IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES 10200 of 1994 Cowdroy J 28/02/2003 JOSEPH ZOUKI Applicant v LIVERPOOL CITY COUNCIL Respondent Judgment Introduction 1 The respondent ("the council") appeals to the Court pursuant to s 56A of the Land and Environment Court Act 1979 ("the Court Act") from a decision of Commissioner Murrell. Such decision was delivered on 31 October 2002 in respect of an application for modification ("the modification application") made under s 96(2) of the Environmental Planning and Assessment Act 1979 ("the EP&A Act"). The modification application was made in respect of a 19 unit townhouse and villa development on land known as No. 3 Hume Highway, Warwick Farm for which the Court, by consent, had granted approval on 24 November 1994. 2 The principal issue before the Commissioner raised the question whether the modifications would result in the same development as that for which consent had originally been granted. The remaining issues were concerned with the merits of the modified development pursuant to s 79C the EP&A Act. The learned Commissioner determined that the modifications, if approved, would result in a development substantially the same as that for which consent had been granted. The Commissioner also held, following a merit assessment, that the application should be approved. Council's submissions Section 96 requires substantially the same development 3 The council submits that the Commissioner erroneously determined that the development would be substantially the same as that for which approval had been originally given after a consideration of the modifications only, rather than of the whole devlelopment. Section 96(2) relevantly provides:- s96(2) A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the consent authority and subject to and in accordance with the regulations, modify the consent if: (a) it is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted and before that consent as originally granted was modified (if at all) under this section, and…. 4 The challenged findings of the Commissioner are contained in par 32 and 33 of the Commissioner's judgment. Paragraph 32 provides:- [32] Having regard to the principles established in the authorities it is incumbent on the Court in this appeal to make an ultimate finding on the facts. And in this case I am satisfied that the development as proposed to be modified is substantially the same development to that approved. I make this finding of fact based on a comparative assessment of the two sets of plans and elevations (refer to Figures 2, 3, 4 and 5) of not only the whole of the development but the various features elements and components. The number of changes is not the test but whether such changes are material. 5 The council refers to the last sentence of par 32 and submits that the correct application of s 96(2) requires an examination of the development as a whole as modified for the purpose of ascertaining whether the development is substantially the same as that for which approval was originally granted. That is, all of the modifications are to be looked at overall and cumulatively as enunciated by Pearlman J in Cyril Smith & Associates Pty Ltd v Waverley Council [2001] NSWLEC 150. 6 The council also relies upon the last sentence of par 33 of the Commissioner's judgment in support of its contention that the Commissioner erred. In par 33 the Commissioner said:- [33] In my assessment the application will not radically transform the development as approved or change its character and it will remain essentially the same as the development as approved. That is, a low density town house/villa development. The council submits that the Commissioner's conclusion that the development remained a " low density town house/villa development" demonstrates an erroneous application of legal principle. If correct the external appearance could be profoundly different from that originally approved but would comprise substantially the same development merely because the town planning description remains the same. The council relies on the observations of Stein J (as he then was) in Vacik Pty Limited v Penrith City Council (Stein J, NSWLEC, 24 February 1992, unreported) in which His Honour said in relation to s 102 of the EP&A Act (now s 96 of the current legislation) at p. 5:- In approaching the s 102 exercise one should not fall into the trap of saying that the development was for a certain use – extractive industry – and, as amended, it will be for precisely the same use and accordingly is substantially the same development. Merits of the appeal 7 The council submits that in the fulfilment of the assessment required by s 79C of the EP&A Act the Commissioner was required to consider the original development as modified, and not merely the merits of the modifications. In support of its submissions the council relies upon the provisions of s 96(3) of such Act, which provides:- 96(3) In determining an application for modification of a consent under this section, the consent authority must take into consideration such of the matters referred to in section 79C (1) as are of relevance to the development the subject of the application. The council emphasises that the word "development" used in s 96(3), in contrast to "modification". Council submits that par 36 of the Commissioner's judgment demonstrates that her merit assessment was erroneously confined to the effect of the modifications only, and not to the whole development as modified. At par 36 the Commissioner said:- [36] As such the provisions of s 96 provides for modifications to a development consent granted under a different planning regime. Therefore, the fact that the approved development is now prohibited, does not provide the opportunity to refuse the application for modification on the basis that the development is now prohibited. Similarly, I have decided on the facts in this matter that a merits assessment under s 96 does not provide the opportunity to refuse the application and revisit the overall merits. The council submits that it is the final sentence of par 36 which demonstrates the error as further exemplified by par 39 of the Commissioner's judgment where the Commissioner said:- …the Court's role in the assessment of this application is to assess whether the modifications are unsatisfactory. Further the council draws on the next sentence in par 39 which states:- In this regard the provisions of s 96 are clear and unequivocal in that it provides for the matters raised in s 79C to be considered that are of relevance to the subject of the modification application. 8 In further support of its submissions, the council relies upon the following sentence contained in par 39 of the Commissioner's findings:- In this regard I am satisfied that there are no merit issues raised by the modifications that would warrant refusal . The council submits that these references in par 36 and 39 reveal that the Commissioner concentrated on the effect of the modifications alone and not on the original development as modified. 9 The council refers to the legislative changes which followed the decision in North Sydney Council v Michael Standley & Associates (1998) 43 NSWLR 468; 97 LGERA 433 in which the New South Wales Court of Appeal held that the modification application should be determined by reference to the development as it then existed, whether or not there had been modifications subsequent to the original consent. The council submits that in view of the amendments that were made to s 102(1)(a) subsequent to the Michael Standley decision, it is clear that the Court, when considering an application under that section (or s 96(2)(a) of the current legislation) must consider the application against "the development for which the consent originally granted". The council submits that the Commissioner was required to pay regard to the original consent, but failed to do so. Applicant's Submissions 10 The applicant denies that there is any error in the Commissioner's reasoning or findings. The applicant submits that the Commissioner had a full and proper understanding of the issues and of the correct legal principles which is evident from a reading of the whole judgment. 11 The applicant submits that a "fine-tooth comb" analysis of the Commissioner's judgment is undesirable unless the contentious observations were central to the findings, as was considered in Brimbella Pty Ltd v Mosman Municipal Council (1993) 79 LGERA 367 at p. 368 per Kirby P and Coles v Woollahra Municipal Council (1986) 59 LGRA 133 at p. 138 per Stein J. Findings The correct application of s 96(2)(a) of the EP&A Act 12 In Vacik Stein J considered the requirements of s 102(1)(a) of the EP&A Act and particularly the requirement of the development as modified be substantially the same development as that for which consent had been granted. His Honour said:- The applicant for modification bears the onus of showing that the modified development is substantially the same, see Seaforth Services Pty Ltd v Byron Shire Council (No. 2) ((1991) 72 LGRA 44) and C.S.R. v Wingecarribee Shire Council (No. 2) (Unreported 17 December 1991). As s 96(2) essentially re-enacted the repealed s 102(1)(a) of the EP&A Act the principles enunciated by His Honour in relation to s 102(1)(a) are applicable to the current s 96(2)(a) (see Moto Projects (No. 2) Pty Ltd v North Sydney Council (1999) 106 LGERA 298 at p. 305). 13 In Moto Bignold J summarised the requisite process under s 96(2)(a) at p. 309 as follows:- [55] The requisite factual finding obviously requires a comparison between the development, as currently approved, and the development as proposed to be modified. The result of the comparison must be a finding that the modified development is "essentially or materially" the same as the (currently) approved development. [56] The comparative task does not merely involve a comparison of the physical features or components of the development as currently approved and modified where that comparative exercise is undertaken in some type of sterile vacuum. Rather, the comparison involves an appreciation, qualitative, as well as quantitative, of the developments being compared in their proper contexts (including the circumstances in which the development consent was granted). 14 The Commissioner referred to the observations of Stein J in Vacik and also the findings of Bignold J in Moto. At par 29 of the judgment, Commissioner Murrell said:- In terms of s 96(2)(a) of the Act the Court must first determine the threshold question of whether the modified development is substantially the same development as approved by the Court as 'consent orders' in November 1994. 15 The Commissioner then made a comparative assessment of the two sets of plans and elevations "not only of the whole development" but also of the "various features, elements and components" (see par 32 of the Commissioner's judgment). Having done so she stated her finding in par 32 of the judgment, namely that she was:- …satisfied that the development as proposed to be modified is substantially the same development to that approved. The final sentence of par 32 of the Commissioner's judgment states:- The number of changes is not the test but whether such changes are material. 16 To make such a comparison the Commissioner must have considered the impact of the original development as a whole as modified and looked at the changes cumulatively and overall. The Commissioner thus correctly considered the changes in order to determine whether they were such as to alter the development to such an extent that it could no longer be properly regarded as substantially the same development for which consent was originally granted. 17 The first sentence of par 33 additionally demonstrates that the Commissioner was aware that she was required to consider the effect of the modifications on the development as a whole. The Commissioner stated that such modifications would not:- …radically transform the development as approved or change its character and it will remain essentially the same as the development as approved. 18 The Commissioner stated and applied the correct test as is demonstrated by the above extracts from her judgment. It is apparent from her reference to the relevant authorities that Commissioner Murrell understood the correct legal principles relating to an application made pursuant to s 96 of the EP&A Act. The Commissioner's observation that the development remained a "low density townhouse/villa development" is to be interpreted as meaning that the modified development had not substantially altered from that for which consent was originally granted. 19 The Commissioner did not "fall into the trap" referred to by Stein J in Vacik. The extracts of Stein J's judgment as set out in par 6 above are not directly relevant to the present facts. Stein J addressed the issue of the environmental implications arising out of the changes to the sequences in the rehabilitation of the excavation of material. His Honour said in the remaining part of the paragraph relied upon by council:- What is important is that a development, particularly extractive industry, must be assumed to include the way in which development is to be carried out. Otherwise there is little purpose in s 102. Accordingly, when the whole of the paragraph of Stein J's judgment is considered, it is apparent that His Honour was addressing a factual circumstance comprising several physical processes involved in that development. Such considerations are absent in the present case, making His Honour's observations of limited relevance to the present facts. 20 For the above reasons the Court rejects the first ground of challenge. Merits of the appeal – s 79C assessment 21 Having determined that the modifications did not change the character of the development in par 33 of her judgment, the Commissioner then dealt with the merits having regard to the requirements of s 96(3) of the EP&A Act. 22 The Commissioner's judgment considered the nature of the proposed modifications and their effect in relation to the conditions attached to the consent orders for the original development. She observed as follows at par 39:- In many respects the issues now raised by the respondent are matters more appropriate for consideration in the original assessment of the application, prior to consent orders being entered into. The Commissioner further stated at par 42:- I have concluded that the application for modification is substantially the same development whether one looks at the proposal in a holistic way or having regard to the individual components. 23 Accordingly when making her assessment of the modification application the Commissioner was mindful of the original development, as evidenced by the comparison she made of the plans and elevations for both the original and the modified development. The Commissioner considered the history of the original application, thereby demonstrating that she comprehended that her obligation was to consider the whole development for the purpose of her merit assessment. 24 Whilst the council submits that it was open to the Commissioner to reject the modification application and reverse the original approval granted by the court orders on 24 November 1994, such course would have been erroneous. An application for modification invests power in the Court to make a comparison of the original development with the proposed development as modified. There is no power contained in s 96 to revoke the original consent. "Fine-tooth" approach 25 The Court notes the various authorities of this Court and the Court of Appeal which have criticised an overly legalistic analysis of tribunal decisions. A "fine-tooth" approach in appeals instituted under s 56A of the Court Act should not be encouraged. As Kirby P stated in Brimbella at p. 368:- There are powerful reasons of policy…that would suggest restraint in criticising the language used in their decisions by lay tribunals. 26 When the challenged paragraphs of the Commissioner's decision are read in context with the entire judgment it is apparent that the Commissioner did take into consideration the whole of the modified development in her assessment of whether it was "substantially the same" development as that originally approved. The Commissioner also adequately considered the issue whether the development as a whole as modified should be approved upon a merit assessment in accordance with the provisions of s 79C of the EP&A Act. 27 The court acknowledges the principle established in Azzopardi v Tasman UEB Industries Ltd (1985) 3 NSWLR 139 at p. 156 that it is an error of law for a commissioner to misdirect himself or herself as to the question he or she is required to answer (see also Randwick Municipal Council v Crawley and Others (1986) 60 LGRA 277). The Court finds that no such error of law has occurred in this instance. Orders 28 The Court orders:- 1. The notice of motion dated 31 October 2002 be dismissed. 2. Costs reserved. 3. These proceedings be referred to the Duty Judge list on 3 March 2003. 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.