Land and Environment Court New South Wales Medium Neutral Citation: O'Donnell v Sutherland Shire Council [2011] NSWLEC 184 Hearing dates: 15 September 2011 Decision date: 27 October 2011 Jurisdiction: Class 1 Before: Pain J Decision: 1. The appeal is dismissed. 2. Costs are reserved. 3. Exhibits are to be returned. Catchwords: APPEAL - appeal from Commissioner's judgment refusing development consent for two modification applications of boatshed structure not built in accordance with development consent - whether error in application of definition of "storey" in local environmental plan - whether error in finding that modifications not able to be approved under amended LEP - whether s 109B applies to allow modification - whether merits review vitiated by legal error - appeal dismissed Legislation Cited: Environmental Planning and Assessment Act 1979 s 96, s 109B Interpretation Act 1987 s 33 Land and Environment Court Act 1979 s 56A Development Control Plan 9.2/04 Edition 1- Waterfront Development Sutherland Shire Local Environmental Plan 2000 Sutherland Shire Local Environmental Plan 2006 cl 17 Sutherland Shire Local Environmental Plan 2006 (Amendment No 8) Cases Cited: Alexander v Yass Valley Council [2011] NSWLEC 148 Baulkham Hills Shire Council v O'Donnell (1990) 69 LGRA 404 Brimbella Pty Ltd v Mosman Municipal Council (1985) 79 LGERA 367 Capital Airport Group Pty Ltd v Director-General, NSW Dept of Planning (No 2) [2011] NSWLEC 83 Carstens v Pittwater Council [1999] NSWLEC 249; (1999) 111 LGERA 1 Currency Corporation Pty Ltd v Wyong Shire Council [2006] NSWLEC 692; (2006) 155 LGERA 230 Foodbarn Pty Ltd v Solicitor-General (1975) 32 LGRA 157 Gann v Sutherland Shire Council [2008] NSWLEC 157 Hope v Bathurst City Council [1980] HCA 16; (1980) 144 CLR 1 Kendall Street Developments Pty Limited v Byron Shire Council (No 2) [2004] NSWLEC 530; (2004) 138 LGERA 360 Minister Administering the Crown Lands Act v Bathurst Local Aboriginal Land Council [2009] NSWCA 138; 166 LGERA 138 North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 46 O'Donnell v Sutherland Shire Council [2011] NSWLEC 1007 Pearse v Sharpe [2007] NSWLEC 710; (2007) 158 LGERA 21 Reading Properties Pty Ltd v Auburn Council [2007] NSWLEC 186; (2007) 158 LGERA 116 Schaffer Corp Ltd v Hawkesbury City Council (1992) 77 LGRA 21 Willoughby City Council v Dasco Design and Construction Pty Ltd [2000] NSWLEC 257; (2000) 111 LGERA 422 Windy Dropdown Pty Ltd v Warringah Council [2000] NSWLEC 240; (2000) 111 LGERA 299 Zhang v Canterbury City Council [2001] NSWCA 167; 51 NSWLR 589 Category: Principal judgment Parties: Greg O'Donnell (First Appellant) Helen Ient (Second Appellant) Sutherland Shire Council (Respondent) Representation: Mr A Pickles (Appellants) Mr M Wright (Respondent) Hannaford Lawyers (Appellants) Sutherland Shire Council (Respondent) File Number(s): 10125 of 2011 Decision under appeal Citation: O'Donnell v Sutherland Shire Council [2011] NSWLEC 1007 Date of Decision: 2011-01-21 00:00:00 Before: Pearson C File Number(s): 10084 of 2010, 10085 of 2010 Judgment 1This is an appeal under s 56A of the Land and Environment Court Act 1979 in relation to the Commissioner's decision in O'Donnell v Sutherland Shire Council [2011] NSWLEC 1007 to refuse two modification applications made under s 96 of the Environmental Planning and Assessment Act 1979 (the EPA Act). An appeal may be lodged in relation to questions of law, to be distinguished from questions of fact. 2The Appellants obtained development consent for the construction of a boatshed and ancillary works on their land from Sutherland Shire Council (the Council) on 23 December 2005 (DA 05/1217). It was common ground that the boatshed had not been constructed strictly in accordance with the approved plans. The principal differences were the height and pitching point of the roof and the addition of toilet and shower facilities adjacent to the main structure. Applications were made by the Appellants to modify the development consent to permit the structure as constructed to remain (modification application 09/0305 and modification application 09/0306). These were refused by the Council on 28 January 2010. The modification applications were the subject of the two appeals heard by the Commissioner (10/10084 and 10/10085). 3Modification application 09/0305 sought consent for the as constructed levels of the seawall, floor level of the boatshed, roof ridge, skylights and a planter box adjacent to the wall of the boatshed. This application was the subject of proceedings 10/10084. 4Modification application 09/0306 sought consent for a pump out tank connected to the sewer within the boatshed, installation of a toilet and shower facilities in an addition adjacent to the boatshed and continued use of some supporting retaining walls. This application was the subject of proceedings 10/10085. It was accepted that if the modification the subject of proceedings 10/10084 was not able to be approved then the modification the subject proceedings of 10/10085 could not be approved given that it is ancillary to the main structure. The grounds of appeal 5The amended grounds of appeal pressed in the amended summons commencing an appeal filed on 6 June 2011 state: 1. The Commissioner erred in concluding that the boatshed as approved was not a two storey structure and that the upper level was not already approved as a 'storey' as defined under Sutherland LEP 2000. 2. The Commissioner erred in law in concluding that the development proposed in the development applications were not permissible development under Sutherland LEP 2006. 3. Alternatively, the Commissioner erred in law in concluding that the development proposed in the development applications was not lawfully capable of approval pursuant to s 109B and s 96 EPA Act 1979. Commissioner's judgment 6The Commissioner's judgment dealt with the relevant controls at [8] - [20] as follows: In December 2005 when the Council granted development consent for the construction of the boatshed, the Sutherland Shire Local Environmental Plan 2000 (the 2000 LEP) applied to the site, which was zoned 2 (e2) Residential. The development control table in cl33 provided at item 2 that development for the purpose of drainage, and exempt development, did not require development consent. Item 3 identified development that required development consent: Ancillary development not included in item 2. Development for the purpose of: child care centres, cluster housing, community facilities, dual occupancy housing, except on internal allotments, dwelling houses, educational establishments, medical facilities, places of public worship, recreation areas, residential medical practice, roads, tennis courts (private), utility installations, other than gas holders or generating works. Demolition not included in item 2. Development below the foreshore building line allowed by clause 20. Subdivision. Development other than development included in item 2 or 3 was prohibited. "Ancillary development" was defined to mean: Ancillary development means a building, work or use which is used or carried out in conjunction with the primary legal use of a site. The 2000 LEP contained the following definition of "storey": Storey means: (a) the space between two floors, or (b) the space between any floor and its ceiling or roof above, or (c) foundation areas, garages, workshops, storerooms and the like, where the height between ground level and the top of the floor above is 1.5 metres or more. A storey which exceeds 4.5 metres is considered as two storeys. Clause 20 applied to foreshore building lines and waterfront development. The relevant subclauses were (3) and (4): (3) A person must not erect a building or carry out a work on land between a foreshore building line and the tidal water in respect of which the line is fixed. (4) However, subclause (3) does not apply to: (a) boat sheds, (b) watercraft facilities, (c) in-ground swimming pools, no higher than 300 millimetres above ground level at any point (unless located in the area of Bundeena or Maianbar), (d) works, including mechanical works, to enable pedestrian access, (e) landscaping and barbeques. At the time development consent was granted the applicable development control plan was the Waterfront Development: Development Control Plan 9.2/04 Edition 1 (the Waterfront DCP). The objectives of the Waterfront DCP were: The objectives of this plan are to: (a)minimise the impact of development on the natural landform of the foreshore and waterway by integrating structures into the site with a minimum change to the natural topography (b)minimise the visual impact of development when viewed from adjacent land and waterways (c)blend developments into the foreshore and waterfront environment by using designs and materials which complement the natural landscape (d)minimise the disruption of the natural shoreline (e)retain and enhance endemic native vegetation along the foreshore and ensure that development does not adversely affect any estuarine flora or fauna habitat (f)maintain and improve public access of the intertidal area of the waterfront, which is public land (g)achieve an appropriate balance between private development and the alienation of the waterways, which is a public resource, from public use (h)phase out non-conforming structures and restore the foreshore and waterfront area to an actual state (i)conserve and enhance waterfront structures of heritage significance (j)minimise the obstruction of water views. Part 11.1 of the Waterfront DCP provided: 11.1 Boatsheds Boatsheds are specifically intended for the storage of small boats and boating equipment only. Council will not permit the use of a boatshed for any other purpose. The single-storey boatsheds can only be located at or above MHWM. Boat sheds can have a maximum length of 7m, a maximum width of 4m and a maximum height of 3m to the eaves or ceiling of the elevation/s facing the water and 5m to the highest part of the roof. The maximum floor level of the boat shed shall be 900mm above MHWM (1.44 AHD). Boatsheds should be designed to minimise excavation and incorporate a pitched (gable form) roof that reflects the character of the waterway. Boat sheds that exhibit a scale and character in keeping with traditional timber boatsheds are preferred. The materials of construction shall be of lower maintenance and in a time and, appropriate to the natural landscape. Walls shall be restricted to timber, stone, brick or other material with an applied surface finish satisfactory to Council and shiny or reflective materials and finishes shall not be used. Roofs shall be of corrugated metal or tile or other approved non-reflective materials. Boatshed doors shall be of non-reflective material with traditional double hung timber doors preferred. Boatsheds shall be set back a minimum 1.5m from the side boundary. The variation may be considered where there is: -No detrimental impact on the view from the waterway by virtue of excessive bulk of the building; -No loss of an existing view to the water from adjoining lands to the waterway; and -An acceptable relationship between buildings along the waterfront. The Sutherland Shire Local Environmental Plan 2006 (the 2006 LEP) came into force on 28 November 2006. The 2006 LEP has been amended, and Sutherland Shire Local Environmental Plan 2006 (Amendment No 8) came into force on 30 July 2010. Under the 2006 LEP the site is zoned 1 - Environmental Housing (Environmentally Sensitive Land): 1 Objectives of zone The objectives of this zone are as follows: (a) to allow development of a scale and nature that: (i) complements the natural landscape setting of the zone, and (ii) protects and conserves existing vegetation and other natural features of the zone, (b) to limit development in the vicinity of the waterfront so that the environment's natural qualities can dominate, (c) to minimise the risk to life, property and the environment by restricting the type, or level and intensity, of development on land that is subject to either natural or man-made hazards, (d) to minimise the impacts of development in the vicinity of heritage items, (e) to allow the subdivision of land only where the size of the resulting lots makes them capable of development that will not compromise the sensitive nature of the environment, (f) to ensure sharing of waterfront views between occupiers and users of new and existing buildings. 2 Development allowed without consent Development for the purpose of: bush fire hazard reduction work, bushland regeneration. Exempt development. 3 Development allowed only with consent Development (other than development included in item 2) for the purpose of: boatsheds, childcare centres, community facilities, drainage, dual occupancies, dwelling houses, places of public worship, recreation areas, residential medical practices, roads, utility installations (except gas holders or generating works). Demolition not included in item 2. 4 Prohibited development Any development not included in item 2 or 3. Clause 17 applies to land traversed by a foreshore building line. The objectives of cl 17 are: (2) Objectives The objectives of this clause are as follows: (a) to avoid adverse ecological effects on waterways, (b) to protect and enhance significant natural features and vegetation on riparian land, (c) to retain endemic vegetation along foreshore areas, (d) to restore and revegetate foreshore areas to improve estuarine flora and fauna habitat, (e) to minimise any adverse impact from development on water quality and, so far as is practicable, to improve the quality of urban run-off entering waterways, (f) to minimise any adverse visual impact of development when viewed from adjacent land and waterways by using a design and materials that complement the natural landscape of the land to which this clause applies, (g) to minimise any adverse impact of development on the natural landform of foreshore areas and waterways by integrating structures into the site with minimal change to the natural topography of the land to which this clause applies, (h) to achieve an appropriate balance between private development and the public use of waterways, (i) to maintain and improve public access to the intertidal area of waterfronts where there will be minimal environmental impact, (j) to conserve and enhance structures on waterfronts that are of heritage significance, (k) to minimise the obstruction of water views from public land, (l) to ensure that there is no development below any foreshore building line, except as provided by this clause. The relevant provisions are in subclauses (7)-(10): (7) Controls A building must not be erected, and a work must not be carried out, on land between a foreshore building line and any waterway or waterfront reserve in respect of which the line is fixed. (8) Nothing in subclause (7) or clause 11 prevents consent being granted to: (a) any alteration (not being an addition) to an existing dwelling that is forward of the foreshore building line, or (b) the erection, carrying out of, or an alteration or addition to, an excluded building or work. (9) Nothing in subclause (7) or clause 11 prevents consent being granted to the erection of a dwelling, or any addition to an existing dwelling, on land between a foreshore building line and any waterway or waterfront reserve in respect of which the line is fixed if: (a) the consent authority has considered the objectives of this clause, and (b) the consent authority is satisfied that: (i) the new dwelling or addition will not be erected any further forward of the foreshore building line than any existing dwelling on the land, and (ii) the new dwelling will not dominate the locality in which it is erected as a result of its height, bulk, design, colour or detailing, and (iii) the natural qualities of the foreshore are retained or restored as far as practicable through the retention or reinstatement of natural levels and endemic vegetation, and (iv) in the case of the erection of a dwelling-there is no reasonable alternative that would allow a new dwelling to be located behind the foreshore building line. (10) In this clause: excluded building or work means any of the following: (a) a boat shed, (b) a watercraft facility, (c) an in-ground swimming pool that is no higher than 300 millimetres above ground level at any point, (d) a work to enable pedestrian access, (e) landscaping, (f) a barbecue, (g) a utility installation (except for a gas holder or generating works). riparian land means: (a) submerged land, or (b) land that adjoins, directly influences or is directly influenced by a body of water, and the body of water itself. Clause 18 of the 2006 LEP applies to land traversed by a foreshore building line, and provides: (2) The objectives of this clause are as follows: (a) to ensure that any development does not result in the obstruction or interference with navigation in waterways, (b) to ensure restoration of land below any foreshore building line, to a natural state (so far as is practicable), with a minimum intrusion of man-made structures, (c) to reduce the number of structures below any foreshore building line, particularly following the redevelopment of a site, (d) to promote the public use of intertidal areas below the mean high water mark or high water mark, where appropriate. (3) The consent authority must not consent to development on land to which this clause applies unless the consent authority is satisfied that the following building or work will be removed before, or within a reasonable time after, the development is carried out: (a) any building or work, other than an excluded building or work, that is: (i) on the lot concerned or an adjoining lot owned by the person carrying out the development, or on adjacent land that person occupies under a lease or a licence, and (ii) between a foreshore building line and any waterway or waterfront reserve in respect of which the line is fixed, (b) any building or work (other than a watercraft facility) that is: (i) on the lot concerned or on an adjoining lot that is owned by a person carrying out the development, or on adjacent land that person occupies under a lease or a licence, and (ii) below the mean high water mark. (4) Subclause (3) does not require the removal of any building or work if: (a) the proposed development is the erection or installation of any of the following: (i) a fence or retaining wall between a dwelling and the street on which the dwelling is located, (ii) a garage or carport adjacent to a dwelling or located between a dwelling and the street on which the dwelling is located, (iii) a deck or verandah, (iv) an awning or canopy, or (b) the consent authority is satisfied that the use of the building or work is lawful, or (c) the consent authority is satisfied that the removal of the building or work: (i) would be inconsistent with, or is not necessary to achieve, any of the objectives of this clause, or (ii) is unreasonable or unnecessary in the circumstances of the case. (5) In this clause: excluded building or work has the same meaning as it has in clause 17. The Dictionary to the 2006 LEP includes definitions of "boatshed" and "storey": boatshed means a single storey building or structure, associated with a dwelling and used for the storage of small boats and boating equipment, and includes any sliprails used to facilitate access for boats to and from the building or structure to the water. storey means a space within a building situated between one floor level and the floor level above, or the ceiling or roof above, and includes the space within the following: (a) foundation areas, garages, workshops, storerooms, basements and the like, whose external walls have a height of more than 1 metre, as measured vertically from the ground level immediately below, (b) an attic within a residential building, but only if: (i) the roof of the attic is pitched from more than 300mm above the floor of the attic or at an angle of more than 35 degrees, or (ii) the area of the attic exceeds 60 percent of the floor space of the floor level below. 7The relevant controls in 2005 when development consent was granted for the boatshed changed by the time the modification applications were considered in 2010. The Sutherland Shire Local Environmental Plan 2000 (LEP 2000) which applied in 2005 did not define boatshed. The Sutherland Shire Local Environmental Plan 2006 (LEP 2006) which replaced LEP 2000 included a definition of "boatshed" and the prohibition on foreshore building in cl 17(7). 8The Commissioner at [25] - [52] considered the issues of, firstly, whether the 2005 development consent was for a two storey building, secondly, whether the structure as built is a two storey building, thirdly, whether a two storey boatshed is permissible under the LEP 2006 and, fourthly, whether s 109B(2)(b) permits the two modifications sought. 9Firstly, the Commissioner held that the erection of a single storey, not two storey, boatshed which included approval for use as a boatshed was approved by the Council. At [37] the Commissioner held: In considering the approved plan, I agree that it is not clear how far the specified slab extends from rear of the building towards the north. In applying the definition of "storey" in the 2000 LEP to the structure represented in the plans, the critical question is whether the slab/joists above the ground level slab constitutes a "floor". The notations on the approved plans identify the space above the slab/joists as "roof space", to be accessed through windows on the front (via the loading platform for watercraft) and rear elevations. Having regard to the description of that area as "roof space", the restricted means of access to it, and the roof pitch at 37 degrees, pitched close to the roof space floor, I am not persuaded that the approved roof space is a "space between any floor and its ceiling or roof above", but rather it is a space above a ceiling in which it would be possible to store watercraft. On that approach, it is not a "storey" as defined in 2000 LEP. This finding is the subject of the first ground of appeal. 10Secondly, the Commissioner held at [42] that the structure as built is two storey (this fact is agreed in this appeal and was agreed before the Commissioner). 11Thirdly, the Commissioner held that as a boatshed cannot be two storeys under the LEP 2006 the modifications sought cannot be approved. At [43] the Commissioner noted that LEP 2006 does not define "ancillary development". She considered the principles in Foodbarn Pty Ltd v Solicitor-General (1975) 32 LGRA 157 and Baulkham Hills Shire Council v O'Donnell (1990) 69 LGRA 404 would apply so that the boatshed use could be permissible as an ancillary use but for the prohibition in cl 17(7) on building below the FBL unless cl 17(8) or (9) applies. The Commissioner held at [44] - [46]: The 2006 LEP defines "dwelling" to mean "a room or suite of rooms occupied or used or so constructed or adapted as to be capable of being occupied or used as a separate domicile". While I agree that the use as a boatshed may be ancillary to the use of the dwelling house, the structure is not a dwelling and so in my view cl17(8)(a) does not apply so as to permit alteration to that structure. For the same reason, cl17(9) does not apply so as to permit any "addition" to the structure . The applicant submits that the boatshed is an "excluded building or work" so that cl17(8)(b) applies to permit its alteration or addition. The definition of "excluded building or work" in cl17(10) includes a "boat shed". The Dictionary to the 2006 LEP includes a definition of "boatshed". It was common ground that the difference in spelling does not alter the substance of the provision. In my view the term as used in cl17 must be read in light of the definition in the Dictionary to the LEP, so that only a structure that relevantly is a single storey structure could be a "boatshed" and thus fall within paragraph (a) of an "excluded building or work". (emphasis added) Contrary to the applicant's submissions, I consider that it would be consistent with the objectives of clauses 17 and 18, which are aimed at regulating and restricting development below the foreshore building line, for the drafter of the 2006 LEP to take a restrictive approach to the extent to which alterations or additions to structures on the foreshore could be permitted. The continuing use of a structure that did not fall within the definition of "boatshed", but which had been approved before the commencement of the 2006 LEP, would be protected as an existing use under s106 of the Act, and s109B would preserve an existing consent to carry out the development. For these reasons, I agree with the Council that the modifications to the approved development as carried out convert the structure into a two storey structure and cannot be approved. The 2006 LEP would not permit the approval of a structure that is not a "boatshed" as defined in the 2006 LEP, and would not permit the approval of ancillary works to such a structure. The finding in [44] is the subject of the second ground of appeal. 12Fourthly, the Commissioner held s 109B(2)(b) did not permit modifications to be approved. At [49] the Commissioner stated: While confirming that an application can be made under s96 to modify a consent preserved by s109B, I am not persuaded that these decisions provide support for the applicant's broader submission. At paragraph [34] in Currency Corporation Biscoe J distinguished between the continuation of a use (here, the use as a boatshed), and carrying out a development, and held (at [35]) that the words "carrying out a development" in s109B "refer to an activity, permitted by a consent in force, which has not yet occurred". The activity permitted by the 2005 development consent was the erection of the boatshed in accordance with the plans approved in condition 1, namely as a single storey structure with a maximum height of 5m; that activity is not prohibited under the 2006 LEP, and so s109B(1) does not apply. This finding is the subject of the third ground of appeal. 13At [51] the Commissioner concluded in the last sentence: Neither the structure, nor the ancillary WC and shower, are permissible under the 2006 LEP, and I am not persuaded that there is power under s96 to approve them. 14In order to consider all matters raised by the parties, at [53] - [63] the Commissioner considered the merit issues raised and held these also justified refusal of the modification applications. At [62] the Commissioner held: Based on the evidence from the view, and in particular when comparing the subject structure to that on the adjoining property to the east and other single storey structures in the locality, I agree with Ms Pinfold that the combination of the height of the building, the external wall height to the roof pitching point, the glazed area including a door on the waterfront elevation, and the form of the roller door, results in a building that reads as a two storey structure and resembles a small waterfront cottage rather than a boatshed. Approval of such a structure in its location would not be consistent with the objectives of the Environmental Housing (Environmentally Sensitive Land) zone, in particular objectives (a)(i) of allowing development of a scale and nature that complements the natural landscape setting of the zone and (b) of limiting development in the vicinity of the waterfront so that natural qualities rather than built form can dominate. Approval of the structure would not be consistent with objective 2(f) of the controls applicable to development below the foreshore building line in cl17, namely to minimise adverse visual impact of development when viewed from the waterway. While I agree with Mr Ball that the proposed WC and shower are set back from the front of the boatshed, their approval would add to the scale of the structure when viewed from the waterway, which would not be consistent with objective (2)(f) of cl17. It follows that I am not satisfied that the nature and scale of the development as modified would be consistent with the objectives of the zone or those applicable to development below the foreshore building line in the 2006 LEP. 15The Commissioner's finding on the merit issues is also submitted to be vitiated by legal error arising from the other grounds of appeal (by implication from the grounds of appeal and expressly in the Appellants' counsel's submissions). Ground 1 - two storey structure approved under LEP 2000 (matter 10/10084) 16The Appellants argued that the first finding of the Commissioner that the original approval of the boatshed by the Council was of a single storey structure was incorrect as a matter of law. The Commissioner incorrectly applied the definition of "storey" in the LEP 2000. At [37] of the judgment she identified the critical question as whether the slab and joists above the ground level constitute a "floor". The Commissioner failed to ask whether the structure above it was a ceiling or roof above a space in between. Further, she did not answer the question she posed to herself. Further, the Commissioner did not apply the facts to the definition. She considered the description on the plans of the window as being "access to roof space" and the pitch of the roof, but these are irrelevant. If all three elements of the definition of storey are found to exist then the definition can be applied without extraneous considerations. The plans show a slab floor with a roof above and a space between. This fulfils the statutory definition of storey. Consequently the Commissioner incorrectly held that the upper level was not already approved as a "storey" as defined in the LEP. The Commissioner made findings of fact based on plans approved by the Council but failed to apply the facts to the definition properly construed or alternatively, misconstrued the definition of storey. That constitutes an error of law applying the principles in Hope v Bathurst City Council [1980] HCA 16; (1980) 144 CLR 1 at 7 per Mason J. Council's submissions 17The Appellants assert that the Commissioner's conclusion is inconsistent with the definition of "storey" in LEP 2000. The impugned paragraph in the Commissioner's reasons responded directly to the argument advanced by the Appellants that the boatshed always had two storeys because, it was argued, it was not evident from scrutiny of the plans for DA 05/1217 that the attic for the boatshed would not have a floor above the internal timber floor joists; see Appellants' written submissions on permissibility before the Commissioner at [12]. Hence, the Appellants argued, it was a "floor" for the purpose of paragraph (b) of the definition of "storey" in LEP 2000. 18However, from the evidence referred to by the Commissioner, it was abundantly clear that the "boatshed" for which consent was sought under DA 05/1217 was for nothing other than a single storey structure having the dimensions referred to in the definition of "boatshed" contained in Development Control Plan 9.2/04 Edition 1- Waterfront Development. The DA plans did not show an additional storey but a confined attic space which could not have met the definition of "storey" in LEP 2000. 19The Appellants' submissions to the contrary ignore that evidence and the plain words of the Commissioner's decision at [37]. It is apparent from that paragraph that the Commissioner was dealing with the differing opinions expressed by the parties' town planning experts. It is equally apparent that the Commissioner concluded that this part of the structure was relevantly "roof space" and was not, by reference to paragraph (b) of the definition of "storey" in LEP 2000, "the space between any floor and its ceiling or roof above". In so concluding, it is obvious that the Commissioner rejected the Appellants' submission on this point. A common sense reading of [36] - [38] of the Commissioner's reasons makes this clear. 20The Commissioner went on at [40] - [42] to consider the evidence relating to the structure as built and was satisfied that the roof space was "a space between a floor level and the ceiling above and meets the definition of storey in the 2006 LEP", Commissioner's reasons at [42] final sentence. 21Contrary to the Appellants' submissions, there was no failure to answer the question the Commissioner had set for herself. She rejected the strained argument put to her by the Appellants. Ground 1 unsuccessful 22The principles to be applied in appeals under s 56A are identified correctly in the Council's submission at par 16 - 20 as follows: The Court will not take a fine-tooth comb approach when examining decisions of technical Commissioners for errors of law (fn: Design 23 Pty Ltd v Sutherland Shire Council (2003) 125 LGERA 380 at 386.24; Brimbella at 368.8 (Kirby P)). Due recognition must be given to the fact that parliament has vested the appeal jurisdiction in specialist lay Commissioners (fn: Brimbella at 368.8 (Kirby P)). The Appellant cannot treat the appeal as a merits review or ask the Court on appeal to substitute its own findings on the evidence of the Commissioner. That a Commissioner may have the same duty as a Judge to give reasons does not mean that a Commissioner's reasons should be subjected to review in the same way that a Judge's reasoning should. The principle remains that Commissioners' decisions are not to be reviewed in an "overly or pernickety way" (fn: North Sydney Council v Ligon 302 Pty Ltd (No 1) (1985) 87 LGERA 435 at 442 (Kirby ACJ)). If an error of law is identified, it must be material. The parties are bound by the manner in which they conducted the proceedings at trial. The issues for determination are those identified in the contentions before the Court (fn: Bankstown City Council v Mohamad El Dana [2009] NSWLEC 68 (11 May 2009) at [44] - [53] (Biscoe J)). 23These principles apply where the challenge is to a finding in relation to a legal issue, contrary to the Appellants' submission that Brimbella Pty Ltd v Mosman Municipal Council (1985) 79 LGERA 367 does not apply in such an appeal. It is particularly important to read the judgment as a whole and not to focus on individual words or phrases as the risk of overlooking their context arises. There was a tendency in the Appellants' arguments to do that. 24The Council referred to Minister Administering the Crown Lands Act v Bathurst Local Aboriginal Land Council [2009] NSWCA 138; 166 LGERA 138 at [204] - [205] where Basten JA identified the limitations in raising questions of law on appeal where the approach to the application of a statutory phrase is in issue. The formation of an evaluative judgment required by a particular phrase can involve an error of law but in limited circumstances only. Examples include where the facts found can give rise to only one conclusion in the application of statutory language or where facts found are not accorded legally appropriate weight. He identifies that care must be taken not to transform a disagreement with the outcome in the court below where no error in the statement of the relevant legal test or the facts found is identified into an inference that there a failure to apply the correct test. These observations also apply in this s 56A appeal. 25Whether the boatshed approved in 2005 is a single or two storey structure is a question of fact and cannot be raised in a s 56A appeal. The consideration of the whole judgment is necessary. As emphasised in the Council's submissions at par 17-19, with which I agree, the Commissioner considered the parties' arguments and evidence. Focussing on the definition of storey as the Appellants did does not reflect the whole of the material before the Commissioner to which she was required to have regard in reaching her conclusion. 26If I am wrong and a potential error of law is identified, as the Appellants submitted relying on Hope , this is not made out. There is no error in reasoning in the application of the definition of storey demonstrated in the judgment. The Commissioner correctly identified the relevant parts of the definition in relation to the evidence before her. The Appellants' approach to the construction of "storey" to the effect that if the elements in the definition are able to be identified it must be a "storey" within the meaning of the LEP is artificial and fails to take into account the actual plans before the Commissioner which she had to consider. 27If I am wrong in my finding of no demonstrated legal error, the error has no vitiating impact in any event. The Appellants' written submissions sought to demonstrate that the merits review by the Commissioner was infected by her incorrect finding in ground 1 that the boatshed approved in 2005 was for a single storey structure on the basis that her use of words "it now reads as" (first sentence line 7 in [62]) is infected by the legal error in ground 1 that the approved building was for a single storey structure. This was not demonstrated by the Appellants' counsel's analysis of the Commissioner's findings at [62] which analysis I found unnecessarily nit-picking. It required that I infer that these words were included by the Commissioner because of her finding on ground 1. In focussing on the words "it now reads as" the Appellants' submissions ignore the reality of the circumstances before the Commissioner. She had before her on the view an already built two storey structure which was the subject of the planning evidence. Her reasoning at [62] is entirely proper and reflects what must have been self-evident on the view. I accept the Council's submissions to that effect. Ground 2 - error in concluding that two storey boatshed was impermissible under LEP 2006 28The Appellants submit the Commissioner erred in law in concluding that the modifications could not be approved under the LEP in force in 2010 (the LEP 2006 as amended by Sutherland Shire Local Environmental Plan 2006 (Amendment No 8) which came into force on 30 July 2010). The errors in ground 2 arise in [44] of the judgment (in bold above at par 11). There are two errors. Firstly, the Commissioner incorrectly held the boatshed was not a dwelling and was not permissible under cl 17(8). Secondly, the Commissioner incorrectly held that cl 17(9) does not apply so as to permit any "addition" to the structure whether the second storey modification or the addition to the structure (toilet and shower facilities modification). 29Clause 17(7) contains a prohibition on building forward of the foreshore building line (FBL). Clause 17(8) of the LEP states that nothing in subclause (7) prevents consent being granted to "(a) any alteration (not being an addition) to an existing dwelling that is forward of the FBL". The alterations the subject of appeal 10/10084 are capable of being approved under cl 17(8)(a). 30Under LEP 2006 dwelling houses are permissible with consent. Any buildings ancillary to a dwelling house would also be permissible with consent under the general principles concerning ancillary uses identified in Foodbarn , under cl 17(8)(a) because the existing dwelling includes any development ancillary to the dwelling. The boatshed is within the definition of existing dwelling as an ancillary development. Boatsheds used in conjunction with a dwelling house are permissible with consent. Even if the building is not now legally capable of falling within the definition of boatshed it can be approved as an existing dwelling under cl 17(8)(a). Pearse v Sharpe [2007] NSWLEC 710; (2007) 158 LGERA 21 is authority for this proposition. The Appellants accepted that as a result of not falling within the definition of a boatshed, the structure could not be an excluded building under cl 17(10) which could be approved under cl 17(8)(b). 31The alterations the subject of appeal 10085/10 (toilet and shower facilities) are capable of being approved under cl 17(9) as an addition to an existing dwelling being the boatshed structure. The Commissioner's reasoning in [45] does not assist in overcoming this error. Council's submissions 32The Appellants argue that the two storey addition is capable of approval under cl 17 of LEP 2006. Clause 17(7) creates a prohibition on structures below the FBL. The definition of "boatshed" in LEP 2006 refers to a boatshed as a single dwelling or structure associated with a dwelling and used for the storage of small boats. To meet the definition, a boatshed must be associated with a dwelling. If the Appellants' submission is correct that part of the definition has no work to do. 33If any structure is permissible below the FBL simply because it is "an ancillary part of a dwelling house", there would then be no limitation on the type of structures permissible below the FBL provided they were "an ancillary part of a dwelling house". This could include any conceivable structure provided there was a sufficient nexus with the primary use of the land as a "dwelling". Examples given before the Commissioner included garages, garden sheds, tennis courts, gazebos, aviaries, chicken coops or pigeon lofts. Many other examples could be given including basketball courts, media and games rooms, granny flats, guest wings, patios, and entertainment decks. None come within the limited exceptions of "excluded buildings" in subclause 17(8) of LEP 2006 and all of which would be directly contrary to the objectives of these longstanding controls. 34The toilet and shower structure outside the external walls of the boatshed is not ancillary to the boatshed and is not permissible below the FBL under LEP 2006 and the Commissioner concluded correctly that she had no power to approve it. See Commissioner's reasons at [51]. Ground 2 unsuccessful 35The Appellants' counsel argued the modifications could be approved under cl 17(8) and (9) of the 2006 LEP. Clause 17(7) of the LEP contains a prohibition on building below the FBL. Subclauses 17(8) and (9) are exceptions to that prohibition. The Appellants argue that subclause (8)(a) applies because the structure built is ancillary to a dwelling house applying general principles in Foodbarn and therefore an existing dwelling forward of the FBL which can be altered. "Dwelling house" is defined in the dictionary of the LEP as: dwelling house means a building containing only one dwelling 36I agree with the Council's construction of the operation of cl 17(7) and (8). General principles for identifying ancillary development in cases cited by the Appellants such as Foodbarn apply subject to a specific statutory regime such as exists in LEP 2006. Ancillary development is not defined in the LEP 2006, unlike the LEP 2000. Further, boatshed is defined in the LEP 2006, but was not in the LEP 2000. As submitted by the Council, the Appellants' construction would render the prohibition in cl 17(7) at nought if the wide definition of ancillary development submitted by the Appellants was accepted in relation to cl 17(8)(a). There is no legal error in the Commissioner's finding that the structure does not meet the definition of dwelling in the LEP and cannot be approved under cl 17(8)(a). 37The Appellants submitted that the structure is not a boatshed because it is not within the single storey definition in the LEP 2006 and can be approved as an excluded building or work under cl 17(8)(b). The definition of excluded building or work in cl 17(10) includes boatshed so that it is not apparent that subclause applies if the structure is not a boatshed. In any event the 2005 development consent was for a boatshed structure and its use as a boatshed. The structure and its use continues as a boatshed which structure does not now meet the definition in the LEP 2006. Consent cannot be granted under cl 17(8)(a) as an excluded building. There is no error of law by the Commissioner demonstrated in relation to cl 17(8)(b). 38The Appellants relied on the approach to ancillary development in Pearse . I note that the Commissioner referred to that case in relation to the issue raised in ground 1 at [31] which required consideration of the LEP 2000 which included a definition of ancillary development at that time. That case concerned a challenge to the validity of a development consent granted by the Sutherland Shire Council for a new dwelling and modifications to an existing waterfront cottage and a change of its use, subject to conditions under the LEP 2000. The cottage had been used for the purpose of a dwelling, an existing use. Jagot J held at [23] that the consent continued the use of the cottage for activities ancillary to the new dwelling approved. The limiting of activities was held not to be a change of an existing use as the cottage was used for the purpose of a dwelling house which would continue as an ancillary outbuilding. 39At [19] her Honour stated that "the purpose of any ... ancillary development (being the end or object it serves) is to be identified by reference to established principles (as identified in, for example, Foodbarn Pty Ltd v Solicitor-General (1975) 32 LGRA 157 at 160 - 161 and Baulkham Hills Shire Council v O'Donnell (1990) 69 LGRA 404 at 409)". Her Honour then considered the provisions of the LEP 2000 and commented that the definition of ancillary development in the LEP (as a building, work or use which is used or carried out in conjunction with the primary legal use of a site) was an "attempt to articulate in the LEP recognition of the principles established in cases such as Foodbarn and O'Donnell " (at [20]). Consequently, her Honour found that "the purpose of ancillary development would generally be the purpose of the 'primary legal use'" (at [20]) and that the LEP provisions "did not constitute ancillary development as a separate development purpose" (at [21). 40While the Appellants relied on that case because of the obiter statements at [19], its application to the different LEP provisions in LEP 2006 and circumstances before me are not demonstrated. It does not support the Appellants' submissions that the boatshed is ancillary to the dwelling house on the site under the LEP 2006. 41If the boatshed as modified (10/10085) cannot be approved under the LEP 2006 the toilet and shower facilities modification (10/10084) which is an addition to the boatshed cannot be approved. There is no point in applying cl 17(9) to the toilet and shower facilities modification in these circumstances. Ground 3 - error in not concluding that s 109B and s 96 apply 42Alternatively to ground 2, the Appellants' primary ground is ground 3. The modifications are capable of approval under the LEP 2006 by reason of s 109B which preserves the 2005 development consent. Section 109B states: (1) Nothing in an environmental planning instrument prohibits, or requires a further development consent to authorise, the carrying out of development in accordance with a consent that has been granted and is in force. (2) This section: (a) applies to consents lawfully granted before or after the commencement of this Act, and (b) does not prevent the lapsing, revocation or modification, in accordance with this Act, of a consent, and (c) has effect despite anything to the contrary in section 107 or 109. (3) This section is taken to have commenced on the commencement of this Act. 43The Commissioner rejected this argument at [49]. The authorities of Reading Properties Pty Ltd v Auburn Council [2007] NSWLEC 186; (2007) 158 LGERA 116, Gann v Sutherland Shire Council [2008] NSWLEC 157 and Currency Corporation Pty Ltd v Wyong Shire Council [2006] NSWLEC 692; (2006) 155 LGERA 230 all support the Appellants' approach. Alternatively, they are capable of approval under s 96(3) of the EPA Act. 44If the boatshed use was still a permissible use s 109B would still have the effect of saving the consent that had been granted and s 96 could still authorise the modification of the building containing the boatshed use to a form that did not conform to the requirements of LEP 2006 because the principles in North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 46 would apply. That is, that a development consent may lawfully be modified even if that modified development would breach development standards in a planning instrument. 45At [50] the Commissioner seeks to distinguish the decisions in Michael Standley and Gann from the facts in this case. With respect, while the factual distinctions are valid if the effect of cl 17 and the definition of boatshed are to be regarded as entirely prohibitory, the distinctions do not have the consequence that the Commissioner found at [51]. In other words, it is true that the facts in those cases were that the developments as sought to be modified would be in breach of the development standards under the applicable planning instruments. However, it does not follow that a development that would be prohibited in its entirety would still be incapable of modification. 46There are also other decisions that support what the Commissioner called the wider proposition advanced by the Appellants. Windy Dropdown Pty Ltd v Warringah Council [2000] NSWLEC 240; (2000) 111 LGERA 299 and Willoughby City Council v Dasco Design and Construction Pty Ltd [2000] NSWLEC 257; (2000) 111 LGERA 422 both support the proposition that it is legally possible to modify a development consent after the works have been carried out and where that development had contravened the development consent. These decisions have been cited with approval in this Court on numerous occasions and have not been overturned. In both decisions, Talbot J and Bignold J respectively distinguished between modification of the development consent and modification of the development, noting that the power being exercised under s 96 was the modification of the consent and not the development per se. 47Further, in Kendall Street Developments Pty Limited v Byron Shire Council (No 2) [2004] NSWLEC 530; (2004) 138 LGERA 360, after referring to Windy Dropdown and Dasco Design , Lloyd J held at [18] that a development consent may be the subject of an application for modification, notwithstanding that the development itself has become unlawful. In Kendall Street Developments the development consent was granted subject to a condition that required the use to cease if the erosion of the escarpment reached within 50m of a building associated with the development. Having found in earlier proceedings that such an event had already occurred before the development became prohibited under a new planning instrument, Lloyd J held that it was possible to retrospectively modify the condition despite the prohibition under the new planning instrument having come into force. Council's submissions 48The response to this submission is simple and was correctly upheld by the Commissioner. Section 109B(2)(b) does not apply, as the Commissioner found. The 2005 development consent for a single storey structure was not prohibited by the introduction of the LEP 2006. The 2005 development consent can be implemented under the LEP 2006. DA 05/1217 sought development consent for nothing other than a single storey boatshed. Single storey boatsheds remain permissible. Section 109B(2)(b) does not apply in these circumstances to allow modification. The numerous authorities relied on by the Appellants do not apply and are distinguishable as the Commissioner found at [50]. The Appellants instead chose to construct a two storey boatshed contrary to the plain terms of the development consent and in breach of s 76A(1)(b) of the EPA Act. 49The Council accepts that the modifications sought can be considered under s 96(3). Ground 3 unsuccessful 50The Council's submission that s 109B(2)(a) does not apply to enable approval of the modification sought is correct for the reasons given by its counsel in par 48. There was no legal error by the Commissioner in finding s 109B did not apply in [50] - [51]. 51The Appellants submitted also that a modification power under s 96(3) is available. Numerous cases such as Michael Standley , Windy Dropdown and Kendall Street Developments were referred to by the Appellants' counsel. These cases confirm that an application for modification of a development which do not conform with the relevant development standards can be made. The Council accepts that s 96(3) can apply and did not therefore dispute the Appellants' authorities on this aspect of the case. There is therefore no need to consider these authorities further in the context of ground 3. Additional appeal ground - Commissioner's merits assessment vitiated by legal error 52The Appellants argued the Commissioner's decision in relation to the consideration of the merits was vitiated because the legal errors in grounds 1, 2, 3 fatally infected her merits consideration in [62]. I have already considered and rejected the argument made in reliance on ground 1. It is debatable whether the alleged legal errors do arise from grounds 2 and 3, which I have dismissed in any event. The criticisms made can be considered to arise separately so I will consider these two further arguments. 53Additional errors identified at [62] in the Appellants' oral submissions are: (i)The Commissioner erred in referring to objective 2(f). This does not apply to the consideration of applications for approval under cl 17(8), only to applications in relation to cl 17(9) which refers specifically to a requirement to consider the objectives in cl 17(9)(e); (ii)The Commissioner erred in making a finding of inconsistency with objective 2(f) of cl 17 as that is the wrong test in applying s 96(3), which requires consideration of relevant controls not necessarily their application through such a finding. 54The Council submitted that there is no error in the Commissioner's reasoning at [62] of the judgment, including in the Commissioner's consideration of the merits undertaken pursuant to s 96(3) (or on any other basis). Merits assessment not vitiated by legal error 55The criticism is made (par 53(i)) that the objectives of cl 17 are only relevant to the consideration of cl 17(9) as that specifically requires the consent authority to consider the objectives of the clause in subclause (9)(a), inter alia. That the drafting of cl 17(8) is different to cl 17(9) in that it does not specifically require consideration of the objectives in cl 17(2) does not render these irrelevant considerations when cl 17(8) is applied. There can be no legal error in the Commissioner applying a common, and orthodox, approach to the application of a subclause by reference to the general objectives of the overall clause. This argument fails. 56Finally (par 53(ii)), the Appellants submitted that the Commissioner erred in the test applied to the merits consideration under s 96(3). Section 96(3) states that a consent authority, here the Commissioner, must consider any matters in s 79C(1) which are relevant to a development application for modification. The Appellants' counsel submitted that consideration of s 79C(1) matters did not encompass a finding of (in)consistency with a relevant objective in cl 17(2)(f), only that such an objective must be considered and, presumably, not applied. There appears to be little authority on the precise question of what consider means in s 96(3). 57The Appellants referred to Carstens v Pittwater Council [1999] NSWLEC 249; ( 1999) 111 LGERA 1 , Schaffer Corp Ltd v Hawkesbury City Council (1992) 77 LGRA 21, and Alexander v Yass Valley Council [2011] NSWLEC 148 citing Capital Airport Group Pty Ltd v Director-General, NSW Dept of Planning (No 2) [2011] NSWLEC 83 and Kendall Street Developments . In Carstens , which did not concern a modification application, Lloyd J was considering whether s 79C considerations were exhaustive. In Schaffer which did not concern a modification application, Pearlman J considered the meaning of the phrase "consistent with" in an LEP provision. In Zhang v Canterbury City Council [2001] NSWCA 167; 51 NSWLR 589 the Court of Appeal in the context of a s 56 appeal, held that a commissioner did not give "proper, genuine, realistic consideration" to a DCP as was required in order to take certain matters into account, meaning give weight to them as a fundamental element in his or her determination. In judicial review proceedings challenging the making of a draft LEP Biscoe J in Capital Airport Group at [98] - [100] reviewed authorities on the meaning of the statutory duty to "take into consideration" or "have regard to" and found that they mean to "give proper, genuine and realistic consideration to the merits of the case" referring to Zhang , inter alia. Kendall Street Developments did concern a modification application under s 96 but the preliminary question of law did not raise this issue. 58The meaning of consider is broad and undefined in s 96(3) or elsewhere in the EPA Act. The word appears alone or as a phrase on many occasions in the EPA Act. The Court should adopt a construction which promotes the purposes of the Act; s 33 Interpretation Act 1987. There is no statutory indicator within the section or the Act as a whole suggesting that consider should be limited so as to exclude a finding of consistency with an objective which is a relevant matter under s 79C(1). The cases the Appellants referred to do not support their argument as these are not generally to the point. If anything they support a broad construction of consider. In exercising her broad discretion to accept or refuse a modification application under s 96(3), the Commissioner was required to give appropriate weight to those matters identified in s 79C(1), here the relevant LEP provision in cl 17. She must do more than merely advert to them. This almost of necessity involves an assessment of an application in relation to any relevant statutory controls. That consideration may include a finding of inconsistency and, in the exercise of discretion, refusal of a modification application, as occurred on this occasion. The Commissioner did not err in law in doing so. 59The Appellants have not established that any legal error vitiates the merits assessment undertaken by the Commissioner. 60As the Appellants have not been successful in relation to any grounds of appeal the appeal is dismissed. Orders 61The Court makes the following orders: 1.The appeal is dismissed. 2.Costs are reserved. 3.Exhibits are to be returned. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 31 October 2011